Bill Text: NJ S2349 | 2018-2019 | Regular Session | Introduced
Bill Title: Enhances consideration of fire safety issues during review of development applications.
Spectrum: Partisan Bill (Republican 2-0)
Status: (Introduced - Dead) 2018-04-05 - Introduced in the Senate, Referred to Senate Community and Urban Affairs Committee [S2349 Detail]
Download: New_Jersey-2018-S2349-Introduced.html
Sponsored by:
Senator ANTHONY R. BUCCO
District 25 (Morris and Somerset)
SYNOPSIS
Enhances consideration of fire safety issues during review of development applications.
CURRENT VERSION OF TEXT
As introduced.
An Act concerning consideration of fire safety issues by, and membership of, municipal planning boards and zoning boards of adjustment and amending P.L.1975, c.291.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. Section 3.1 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.
"Fire official" means a person certified by the Commissioner of Community Affairs as a fire inspector or fire official pursuant to the Uniform Fire Safety Code or licensed by the Commissioner of Community Affairs as a fire protection inspector or fire protection subcode official pursuant to the State Uniform Construction Code.
"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.
"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)
2. Section 14 of P.L.1975, c.291 (C.40:55D-23) is amended to read as follows:
14. Planning board membership. a. The governing body may, by ordinance, create a planning board of seven or nine members. All members of the planning board, except for the Class II members set forth below, shall be municipal residents. The membership shall consist of, for convenience in designating the manner of appointment, the four following classes:
Class I--the mayor or the mayor's designee in the absence of the mayor or, in the case of the council-manager form of government pursuant to the Optional Municipal Charter Law, P.L.1950, c.210 (C.40:69A-1 et seq.) or "the municipal manager form of government law" (R.S.40:79-1 et seq.), the manager, if so provided by the aforesaid ordinance.
Class II--one of the officials of the municipality other than a member of the governing body, to be appointed by the mayor; provided that if there be an environmental commission, the member of the environmental commission who is also a member of the planning board as required by section 1 of P.L.1968, c.245 (C.40:56A-1), shall be deemed to be the Class II planning board member for purposes of this act in the event that there be among the Class IV or alternate members of the planning board both a member of the zoning board of adjustment and a member of the board of education.
Class III--a member of the governing body to be appointed by it.
Class IV--other citizens of the municipality, to be appointed by the mayor or, in the case of the council-manager form of government pursuant to the Optional Municipal Charter Law, P.L.1950, c.210 (C.40:69A-1 et seq.) or "the municipal manager form of government law" (R.S.40:79-1 et seq.), by the council, if so provided by the aforesaid ordinance.
The members of Class IV shall hold no other municipal office, position or employment, except that in the case of nine-member boards, one such member may be a member of the zoning board of adjustment or historic preservation commission. No member of the board of education may be a Class IV member of the planning board, except that in the case of a nine-member board, one Class IV member may be a member of the board of education. If there be a municipal environmental commission, the member of the environmental commission who is also a member of the planning board, as required by section 1 of P.L.1968, c.245 (C.40:56A-1), shall be a Class IV planning board member, unless there be among the Class IV or alternate members of the planning board both a member of the zoning board of adjustment or historic preservation commission and a member of the board of education, in which case the member common to the planning board and municipal environmental commission shall be deemed a Class II member of the planning board. For the purpose of this section, membership on a municipal board or commission whose function is advisory in nature, and the establishment of which is discretionary and not required by statute, shall not be considered the holding of municipal office.
b. The term of the member composing Class I shall correspond to the mayor's or manager's official tenure or if the member is the mayor's designee in the absence of the mayor, the designee shall serve at the pleasure of the mayor during the mayor's official tenure. The terms of the members composing Class II and Class III shall be for one year or terminate at the completion of their respective terms of office, whichever occurs first, except for a Class II member who is also a member of the environmental commission. The term of a Class II or Class IV member who is also a member of the environmental commission shall be for three years or terminate at the completion of his term of office as a member of the environmental commission, whichever occurs first. The term of a Class IV member who is also a member of the board of adjustment or board of education shall terminate whenever he is no longer a member of such other body or at the completion of his Class IV term, whichever occurs first. The terms of all Class IV members first appointed under this act shall be so determined that to the greatest practicable extent the expiration of such terms shall be distributed evenly over the first four years after their appointments; provided that the initial Class IV term of no member shall exceed four years. Thereafter, the Class IV term of each such member shall be four years. If a vacancy in any class shall occur otherwise than by expiration of the planning board term, it shall be filled by appointment, as above provided, for the unexpired term. No member of the planning board shall be permitted to act on any matter in which he has, either directly or indirectly, any personal or financial interest. Any member other than a Class I member, after a public hearing if he requests one, may be removed by the governing body for cause.
c. In any municipality in which the term of the municipal governing body commences on January 1, the governing body may, by ordinance, provide that the term of appointment of any class of member of the planning board appointed pursuant to this section shall commence on January 1. In any municipality in which the term of the municipal governing body commences on July 1, the governing body may, by ordinance, provide that the term of appointment of any class of member appointed pursuant to this section commence on July 1.
d. Notwithstanding any provisions of this section concerning the appointment of members to a planning board to the contrary, including residency restrictions and limitations related to office-holding and employment, two fire officials may be appointed to a planning board.
(cf: P.L.1998, c.95, s.5)
3. Section 16 of P.L.1975, c.291 (C.40:55D-25) is amended to read as follows:
16. a. The planning board shall follow the provisions of this act and shall accordingly exercise its power in regard to:
(1) The master plan pursuant to article 3;
(2) Subdivision control and site plan review pursuant to article 6;
(3) The official map pursuant to article 5;
(4) The zoning ordinance including conditional uses pursuant to article 8;
(5) The capital improvement program pursuant to article 4;
(6) Variances and certain building permits in conjunction with subdivision, site plan and conditional use approval pursuant to article 7.
b. The planning board may:
(1) Participate in the preparation and review of programs or plans required by State or federal law or regulation;
(2) Assemble data on a continuing basis as part of a continuous planning process; and
(3) Perform such other advisory duties as are assigned to it by ordinance or resolution of the governing body for the aid and assistance of the governing body or other agencies or officers.
c. (1) In a municipality having a population of 15,000 or less, a nine-member planning board, if so provided by ordinance, shall exercise, to the same extent and subject to the same restrictions, all the powers of a board of adjustment; but the Class I and the Class III members shall not participate in the consideration of applications for development which involve relief pursuant to subsection d. of section 57 of P.L.1975, c.291 (C.40:55D-70).
(2) In any municipality, a nine-member planning board, if so provided by ordinance, subject to voter referendum, shall exercise, to the same extent and subject to the same restrictions, all the powers of a board of adjustment; but the Class I and the Class III members shall not participate in the consideration of applications for development which involve relief pursuant to subsection d. of section 57 of P.L.1975, c.291 (C.40:55D-70).
d. In a municipality having a population of 2,500 or less, the planning board, if so provided by ordinance, shall exercise, to the same extent and subject to the same restrictions, all of the powers of an historic preservation commission, provided that at least one planning board member meets the qualifications of a Class A member of an historic preservation commission and at least one member meets the qualifications of a Class B member of that commission.
e. In any municipality in which the planning board exercises the power of a zoning board of adjustment pursuant to subsection c. of this section, a zoning board of adjustment may be appointed pursuant to law, subject to voter referendum permitting reconstitution of the board. The public question shall be initiated through an ordinance adopted by the governing body.
f. A planning board may refer applications for development to any appropriate person or agency for its report; provided that such referrals shall not extend the period of time within which the planning board shall act.
g. Unless a regular
member of the planning board is a fire official, the planning board shall refer
applications for development to a fire official for review and the preparation
of a report; provided that such referral shall not extend the period of time
within which
the planning board shall act.
(cf: P.L.1999, c.27, s.1)
4. Section 56 of P.L.1975, c.291 (C.40:55D-69) is amended to read as follows:
56. Zoning board of adjustment. Upon the adoption of a zoning ordinance, the governing body shall create, by ordinance, a zoning board of adjustment unless the municipality is eligible for, and exercises, the option provided by subsection c. of section 16 of P.L.1975, c.291 (C.40:55D-25). A zoning board of adjustment shall consist of seven regular members and may have not more than four alternate members. All regular members and any alternate members shall be municipal residents. Notwithstanding the provisions of any other law or charter heretofore adopted, such ordinance shall provide the method of appointment of all such members. Alternate members shall be designated at the time of appointment by the authority appointing them as "Alternate No. 1" and "Alternate No. 2," and, in the case of a municipality in which more than two alternates have been appointed, "Alternate No. 1," "Alternate No. 2," "Alternate No. 3," and "Alternate No. 4," as appropriate. The terms of the members first appointed under P.L.1975, c.291 (C.40:55D-1 et seq.) shall be so determined that to the greatest practicable extent, the expiration of such terms shall be distributed, in the case of regular members, evenly over the first four years after their appointment, and in the case of alternate members, evenly over the first two years after their appointment; provided that the initial term of no regular members shall exceed four years and that the initial term of no alternate member shall exceed two years. Thereafter, the term of each regular member shall be four years, and the term of each alternate member shall be two years. In any municipality in which more than two alternates have been appointed, the terms of not more than two alternate members shall expire in any one year. No member may hold any elective office or position under the municipality. No member of the board of adjustment shall be permitted to act on any matter in which he has, either directly or indirectly, any personal or financial interest. A member may, after public hearing if he requests it, be removed by the governing body for cause. A vacancy occurring otherwise than by expiration of term shall be filled for the unexpired term only.
The board of adjustment shall elect a chairman and vice chairman from its regular members and select a secretary, who may or may not be a member of the board of adjustment or a municipal employee.
Alternate members may participate in all matters but may not vote except in the absence or disqualification of a regular member. Participation of alternate members shall not be deemed to increase the size of the zoning board of adjustment established by ordinance of the governing body pursuant to section 56 of P.L.1975, c.291 (C.40:55D-69). A vote shall not be delayed in order that a regular member may vote instead of an alternate member. In the event that a choice must be made as to which alternate member is to vote, alternate members shall vote in the order of their numerical designations.
Notwithstanding any provisions of this section concerning the appointment of members to a zoning board of adjustment to the contrary, including residency restrictions and limitations related to office-holding and employment, two fire officials may be appointed to a zoning board of adjustment.
(cf: P.L.2004, c.105, s.1)
5. Section 57 of P.L.1975, c.291 (C.40:55D-70) is amended to read as follows:
57. Powers. The board of adjustment shall have the power to:
a. Hear and decide appeals where it is alleged by the appellant that there is error in any order, requirement, decision or refusal made by an administrative officer based on or made in the enforcement of the zoning ordinance;
b. Hear and decide requests for interpretation of the zoning map or ordinance or for decisions upon other special questions upon which such board is authorized to pass by any zoning or official map ordinance, in accordance with this act;
c. (1) Where: (a) by reason of exceptional narrowness, shallowness or shape of a specific piece of property, or (b) by reason of exceptional topographic conditions or physical features uniquely affecting a specific piece of property, or (c) by reason of an extraordinary and exceptional situation uniquely affecting a specific piece of property or the structures lawfully existing thereon, the strict application of any regulation pursuant to article 8 of this act would result in peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon, the developer of such property, grant, upon an application or an appeal relating to such property, a variance from such strict application of such regulation so as to relieve such difficulties or hardship; (2) where in an application or appeal relating to a specific piece of property the purposes of this act or the purposes of the "Educational Facilities Construction and Financing Act," P.L.2000, c.72 (C.18A:7G-1 et al.), would be advanced by a deviation from the zoning ordinance requirements and the benefits of the deviation would substantially outweigh any detriment, grant a variance to allow departure from regulations pursuant to article 8 of this act; provided, however, that the fact that a proposed use is an inherently beneficial use shall not be dispositive of a decision on a variance under this subsection and provided that no variance from those departures enumerated in subsection d. of this section shall be granted under this subsection; and provided further that the proposed development does not require approval by the planning board of a subdivision, site plan or conditional use, in conjunction with which the planning board has power to review a request for a variance pursuant to subsection a. of section 47 of this act; and
d. In particular cases for special reasons, grant a variance to allow departure from regulations pursuant to article 8 of this act to permit: (1) a use or principal structure in a district restricted against such use or principal structure, (2) an expansion of a nonconforming use, (3) deviation from a specification or standard pursuant to section 54 of P.L.1975, c.291 (C.40:55D-67) pertaining solely to a conditional use, (4) an increase in the permitted floor area ratio as defined in section 3.1 of P.L.1975, c.291 (C.40:55D-4), (5) an increase in the permitted density as defined in section 3.1 of P.L.1975, c.291 (C.40:55D-4), except as applied to the required lot area for a lot or lots for detached one or two dwelling unit buildings, which lot or lots are either an isolated undersized lot or lots resulting from a minor subdivision or (6) a height of a principal structure which exceeds by 10 feet or 10% the maximum height permitted in the district for a principal structure. A variance under this subsection shall be granted only by affirmative vote of at least five members, in the case of a municipal board, or two-thirds of the full authorized membership, in the case of a regional board, pursuant to article 10 of this act.
If an application development requests one or more variances but not a variance for a purpose enumerated in subsection d. of this section, the decision on the requested variance or variances shall be rendered under subsection c. of this section.
No variance or other relief may be granted under the terms of this section, including a variance or other relief involving an inherently beneficial use, without a showing that such variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance.
In respect to any airport safety zones delineated under the "Air Safety and Zoning Act of 1983," P.L.1983, c.260 (C.6:1-80 et seq.), no variance or other relief may be granted under the terms of this section, permitting the creation or establishment of a nonconforming use which would be prohibited under standards promulgated pursuant to that act, except upon issuance of a permit by the Commissioner of Transportation.
An application under this section may be referred to any appropriate person or agency for its report; provided that such reference shall not extend the period of time within which the zoning board of adjustment shall act.
Unless a regular member of
the zoning board of adjustment is a fire official, the board shall refer
applications for development under this section to a fire official for review
and the preparation of a report; provided that such reference shall not extend
the period of
time within which the zoning board of adjustment shall act.
(cf: P.L.2007, c.137, s.60)
6. Section 63 of P.L.1975, c.291 (C.40:55D-76) is amended to read as follows:
63. a. Sections 59 through 62 of this article shall apply to the power of the board of adjustment to:
(1) Direct issuance of a permit pursuant to section 25 of [this act] P.L.1975, c.291 (C.40:55D-34) for a building or structure in the bed of a mapped street or public drainage way, flood control basin or public area reserved pursuant to section 23 of [this act] P.L.1975, c.291 (C.40:55D-32); or
(2) Direct issuance of a permit pursuant to section 27 of [this act] P.L.1975, c.291 (C.40:55D-36) for a building or structure not related to a street.
b. The board of adjustment shall have the power to grant, to the same extent and subject to the same restrictions as the planning board, subdivision or site plan approval pursuant to article 6 of this act or conditional use approval pursuant to section 54 of [this act] P.L.1975, c.291 (C.40:55D-67), whenever the proposed development requires approval by the board of adjustment of a variance pursuant to subsection d. of section 57 of [this act] P.L.1975, c.291 (C.40:55D-70). The developer may elect to submit a separate application requesting approval of the variance and a subsequent application for any required approval of a subdivision, site plan or conditional use. The separate approval of the variance shall be conditioned upon grant of all required subsequent approvals by the board of adjustment. No such subsequent approval shall be granted unless such approval can be granted without substantial detriment to the public good and without substantial impairment of the intent and purpose of the zone plan and zoning ordinance. The number of votes of board members required to grant any such subsequent approval shall be as otherwise provided in this act for the approval in question, and the special vote pursuant to the aforesaid subsection d. of section 57 shall not be required.
c. Whenever an application for development requests relief pursuant to subsection b. of this section, the board of adjustment shall grant or deny approval of the application within 120 days after submission by a developer of a complete application to the administrative officer or within such further time as may be consented to by the applicant. In the event that the developer elects to submit separate consecutive applications, the aforesaid provision shall apply to the application for approval of the variance. The period for granting or denying any subsequent approval shall be as otherwise provided in this act. Failure of the board of adjustment to act within the period prescribed shall constitute approval of the application, and a certificate of the administrative officer as to the failure of the board of adjustment to act shall be issued on request of the applicant, and it shall be sufficient in lieu of the written endorsement or other evidence of approval herein required, and shall be so accepted by the county recording officer for purposes of filing subdivision plats.
Whenever review or approval of the application by the county planning board is required by section 5 of P.L.1968, c.285 (C.40:27-6.3), in the case of a subdivision, or section 8 of P.L.1968, c.285 (C.40:27-6.6), in the case of a site plan, the municipal board of adjustment shall condition any approval that it grants upon timely receipt of a favorable report on the application by the county planning board or approval by the county planning board by its failure to report thereon within the required time.
An application under this section may be referred to any appropriate person or agency for its report; provided that such reference shall not extend the period of time within which the zoning board of adjustment shall act.
Unless a regular member of the zoning board of adjustment is a fire official, the board shall refer applications for development under this section to a fire official for review and the preparation of a report; provided that such reference shall not extend the period of time within which the zoning board of adjustment shall act.
(cf: P.L.1984, c.20, s.13)
7. This act shall take effect immediately.
STATEMENT
Among the most fundamental purposes of the "Municipal Land Use Law" are to encourage municipal action that guides land development in a manner that promotes public health and safety, and to secure protection from fire. To those ends, the Fire Safety Commission's Codes Advisory Council has suggested enhancing the information available to land use boards by requiring either the submission of all development applications to fire officials for review and comment or the appointment of fire officials to the boards which consider land use applications. This bill would accomplish those goals.
