Bill Text: NJ S174 | 2018-2019 | Regular Session | Introduced
Bill Title: Modifies "inherently beneficial use" definition for purposes of zoning variance to discourage siting of wind and solar energy facilities on agricultural land and open space.
Spectrum: Partisan Bill (Republican 2-0)
Status: (Introduced - Dead) 2018-01-09 - Introduced in the Senate, Referred to Senate Environment and Energy Committee [S174 Detail]
Download: New_Jersey-2018-S174-Introduced.html
STATE OF NEW JERSEY
218th LEGISLATURE
PRE-FILED FOR INTRODUCTION IN THE 2018 SESSION
Sponsored by:
Senator MICHAEL J. DOHERTY
District 23 (Hunterdon, Somerset and Warren)
Co-Sponsored by:
Senator Bateman
SYNOPSIS
Modifies "inherently beneficial use" definition for purposes of zoning variance to discourage siting of wind and solar energy facilities on agricultural land and open space.
CURRENT VERSION OF TEXT
Introduced Pending Technical Review by Legislative Counsel.
An Act concerning wind and solar energy facilities under local zoning and amending P.L.1975, c.291.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. Section 3 of P.L.1975, c.291 (C.40:55D-3) is amended to read as follows:
3. For the purposes of this act, unless the context clearly indicates a different meaning:
The term "shall" indicates a mandatory requirement, and the term "may" indicates a permissive action.
"Administrative officer" means the clerk of the municipality, unless a different municipal official or officials are designated by ordinance or statute.
"Agricultural restriction" means an "agricultural deed restriction for farmland preservation purposes" as defined in section 3 of P.L.1983, c.32 (C.4:1C-13).
"Agricultural land" means "farmland" as defined pursuant to section 3 of P.L.1999, c.152 (C.13:8C-3).
"Applicant" means a developer submitting an application for development.
"Application for development" means the application form and all accompanying documents required by ordinance for approval of a subdivision plat, site plan, planned development, cluster development, conditional use, zoning variance or direction of the issuance of a permit pursuant to section 25 or section 27 of P.L.1975, c.291 (C.40:55D-34 or C.40:55D-36).
"Approving authority" means the planning board of the municipality, unless a different agency is designated by ordinance when acting pursuant to the authority of P.L.1975, c.291 (C.40:55D-1 et seq.).
"Board of adjustment" means the board established pursuant to section 56 of P.L.1975, c.291 (C.40:55D-69).
"Brownfield" means any former or current commercial or industrial site that is currently vacant or underutilized and on which there has been, or there is suspected to have been, a discharge of contaminant, as included in the "Brownfields Redevelopment Task Force" inventory, developed pursuant to section 5 of P.L.1997, c.278 (C.58:10B-23).
"Building" means a combination of materials to form a construction adapted to permanent, temporary, or continuous occupancy and having a roof.
"Cable television company" means a cable television company as defined pursuant to subsection g. of section 3 of P.L.1972, c.186 (C.48:5A-3).
"Capital improvement" means a governmental acquisition of real property or major construction project.
"Circulation" means systems, structures and physical improvements for the movement of people, goods, water, air, sewage or power by such means as streets, highways, railways, waterways, towers, airways, pipes and conduits, and the handling of people and goods by such means as terminals, stations, warehouses, and other storage buildings or transshipment points.
"Cluster development" means a contiguous cluster or noncontiguous cluster that is not a planned development.
"Common open space" means an open space area within or related to a site designated as a development, and designed and intended for the use or enjoyment of residents and owners of the development. Common open space may contain such complementary structures and improvements as are necessary and appropriate for the use or enjoyment of residents and owners of the development.
"Conditional use" means a use permitted in a particular zoning district only upon a showing that such use in a specified location will comply with the conditions and standards for the location or operation of such use as contained in the zoning ordinance, and upon the issuance of an authorization therefor by the planning board.
"Conservation restriction" means a "conservation restriction" as defined in section 2 of P.L.1979, c.378 (C.13:8B-2).
"Contiguous cluster" means a contiguous area to be developed as a single entity according to a plan containing a section or sections to be developed for residential purposes, nonresidential purposes, or a combination thereof, at a greater concentration of density or intensity of land use than authorized within the section or sections under conventional development, in exchange for the permanent preservation of another section or other sections of the area as common or public open space, or for historic or agricultural purposes, or a combination thereof.
"Conventional" means development other than cluster development or planned development.
"County agriculture development board" or "CADB" means a county agriculture development board established by a county pursuant to the provisions of section 7 of P.L.1983, c.32 (C.4:1C-14).
"County master plan" means a composite of the master plan for the physical development of the county in which the municipality is located, with the accompanying maps, plats, charts and descriptive and explanatory matter adopted by the county planning board pursuant to R.S.40:27-2 and R.S.40:27-4.
"County planning board" means the county planning board, as defined in section 1 of P.L.1968, c.285 (C.40:27-6.1), of the county
in which the land or development is located.
(cf: P.L.2013, c.106, s.2)
2. Section 3.1 of P.L.1975, c.291 (C.40:55D-4) is amended to read as follows:
3. 1. "Days" means calendar days.
"Density" means the permitted number of dwelling units per gross area of land that is the subject of an application for development, including noncontiguous land, if authorized by municipal ordinance or by a planned development.
"Developer" means the legal or beneficial owner or owners of a lot or of any land proposed to be included in a proposed development, including the holder of an option or contract to purchase, or other person having an enforceable proprietary interest in such land.
"Development" means the division of a parcel of land into two or more parcels, the construction, reconstruction, conversion, structural alteration, relocation or enlargement of any building or other structure, or of any mining excavation or landfill, and any use or change in the use of any building or other structure, or land or extension of use of land, for which permission may be required pursuant to P.L.1975, c.291 (C.40:55D-1 et seq.).
"Development potential" means the maximum number of dwelling units or square feet of nonresidential floor area that may be constructed on a specified lot or in a specified zone under the master plan and land use regulations in effect on the date of the adoption of the development transfer ordinance or on the date of the adoption of the ordinance authorizing noncontiguous cluster, and in accordance with recognized environmental constraints.
"Development regulation" means a zoning ordinance, subdivision ordinance, site plan ordinance, official map ordinance or other municipal regulation of the use and development of land, or amendment thereto adopted and filed pursuant to P.L.1975, c.291 (C.40:55D-1 et seq.).
"Development restriction" means an agricultural restriction, a conservation restriction, or a historic preservation restriction.
"Development transfer" or "development potential transfer" means the conveyance of development potential, or the permission for development, from one or more lots to one or more other lots by deed, easement, or other means as authorized by ordinance.
"Development transfer bank" means a development transfer bank established pursuant to section 22 of P.L.2004, c.2 (C.40:55D-158) or the State TDR Bank.
"Drainage" means the removal of surface water or groundwater from land by drains, grading or other means and includes control of runoff during and after construction or development to minimize erosion and sedimentation, to assure the adequacy of existing and proposed culverts and bridges, to induce water recharge into the ground where practical, to lessen nonpoint pollution, to maintain the integrity of stream channels for their biological functions as well as for drainage, and the means necessary for water supply preservation or prevention or alleviation of flooding.
"Environmental commission" means a municipal advisory body created pursuant to P.L.1968, c.245 (C.40:56A-1 et seq.).
"Erosion" means the detachment and movement of soil or rock fragments by water, wind, ice and gravity.
"Final approval" means the official action of the planning board taken on a preliminarily approved major subdivision or site plan, after all conditions, engineering plans and other requirements have been completed or fulfilled and the required improvements have been installed or guarantees properly posted for their completion, or approval conditioned upon the posting of such guarantees.
"Floor area ratio" means the sum of the area of all floors of buildings or structures compared to the total area of land that is the subject of an application for development, including noncontiguous land, if authorized by municipal ordinance or by a planned development.
"General development plan" means a comprehensive plan for the development of a planned development, as provided in section 4 of P.L.1987, c.129 (C.40:55D-45.2).
"Governing body" means the chief legislative body of the municipality. In municipalities having a board of public works, "governing body" means such board.
"Historic district" means one or more historic sites and intervening or surrounding property significantly affecting or affected by the quality and character of the historic site or sites.
"Historic preservation restriction" means a "historic preservation restriction" as defined in section 2 of P.L.1979, c.378 (C.13:8B-2).
"Historic site" means any real property, man-made structure, natural object or configuration or any portion or group of the foregoing of historical, archeological, cultural, scenic or architectural significance.
"Inherently beneficial use" means a use which is universally considered of value to the community because it fundamentally serves the public good and promotes the general welfare. Such a use includes, but is not limited to, a hospital, school, child care center, group home, or a wind, solar or photovoltaic energy facility or structure so long as the wind, solar or photovoltaic energy facility or structure is located on or above a parking lot, rooftop, or brownfield, and not within agricultural land or open space.
"Instrument" means the easement, credit, or other deed restriction used to record a development transfer.
"Interested party" means: (a) in a criminal or quasi-criminal proceeding, any citizen of the State of New Jersey; and (b) in the case of a civil proceeding in any court or in an administrative proceeding before a municipal agency, any person, whether residing within or without the municipality, whose right to use, acquire, or enjoy property is or may be affected by any action taken under P.L.1975, c.291 (C.40:55D-1 et seq.), or whose rights to use, acquire, or enjoy property under P.L.1975, c.291 (C.40:55D-1 et seq.), or under any other law of this State or of the United States have been denied, violated or infringed by an action or a failure to act under P.L.1975, c.291 (C.40:55D-1 et seq.).
"Land" includes improvements and fixtures on, above or below the surface.
"Local utility" means any sewerage authority created pursuant to the "sewerage authorities law," P.L.1946, c.138 (C.40:14A-1 et seq.); any utilities authority created pursuant to the "municipal and county utilities authorities law," P.L.1957, c.183 (C.40:14B-1 et seq.); or any utility, authority, commission, special district or other corporate entity not regulated by the Board of Regulatory Commissioners under Title 48 of the Revised Statutes that provides gas, electricity, heat, power, water or sewer service to a municipality or the residents thereof.
"Lot" means a designated parcel, tract or area of land established by a plat or otherwise, as permitted by law and to be used, developed or built upon as a unit.
(cf: P.L.2013, c.106, s.3)
3. This act shall take effect immediately.
STATEMENT
This bill would modify the definition of "inherently beneficial use" in the "Municipal Land Use Law," P.L.1975, c.291 (C.40:55D-1 et seq.) so that wind and solar or photovoltaic energy facilities are only included if located on or above a parking lot, rooftop, or brownfield, and not within agricultural land or open space.
If a use is held to be inherently beneficial, it presumptively satisfies the positive criteria for the grant of a use variance under subsection d. of section 57 of P.L.1975, c.291 (C.40:55D-70), which is required when the proposed use is inconsistent with the zoning plan. Presently, "inherently beneficial use" is defined as "a use which is universally considered of value to the community because it fundamentally serves the public good and promotes the general welfare. Such a use includes, but is not limited to, a hospital, school, child care center, group home, or a wind, solar or photovoltaic energy facility or structure."
This bill narrows that definition so that wind and solar or photovoltaic energy facilities are only included if located on or above a parking lot, rooftop, or brownfield, and not within agricultural land or open space. This modification would help to restore balance between the State's effort to encourage alternative energy development, and the equally important goal of preserving open space.
