New Jersey Department of State New Jersey Department of State
Lt. Governor
Kim Guadagno
On November 3, 2009, the people of New Jersey elected Kim Guadagno as the first Lieutenant Governor in the state's history.
Contact the Department of State
New Jersey Department of State
P.O. Box 300
Trenton, NJ 08625

Email: Feedback@sos.state.nj.us

Office of Planning Advocacy

NJAC Title 5, Chapter 85. State Planning
Executive Orders
Intergovernmental Agreement
Reorganization Plan
NJSA 52:18A-196. Findings, declarations

1.The Legislature finds and declares that:

a.New Jersey, the nation's most densely populated State, requires sound and integrated Statewide planning and the coordination of Statewide planning with local and regional planning in order to conserve its natural resources, revitalize its urban centers, protect the quality of its environment, and provide needed housing and adequate public services at a reasonable cost while promoting beneficial economic growth, development and renewal;

b.Significant economies, efficiencies and savings in the development process would be realized by private sector enterprise and by public sector development agencies if the several levels of government would cooperate in the preparation of and adherence to sound and integrated plans;

c.It is of urgent importance that the State Development Guide Plan be replaced by a State Development and Redevelopment Plan designed for use as a tool for assessing suitable locations for infrastructure, housing, economic growth and conservation;

d.It is in the public interest to encourage development, redevelopment and economic growth in locations that are well situated with respect to present or anticipated public services and facilities, giving appropriate priority to the redevelopment, repair, rehabilitation or replacement of existing facilities and to discourage development where it may impair or destroy natural resources or environmental qualities that are vital to the health and well-being of the present and future citizens of this State;

e.A cooperative planning process that involves the full participation of State, regional, county and local governments as well as other public and private sector interests will enhance prudent and rational development, redevelopment and conservation policies and the formulation of sound and consistent regional plans and planning criteria;

f.Since the overwhelming majority of New Jersey land use planning and development review occurs at the local level, it is important to provide local governments in this State with the technical resources and guidance necessary to assist them in developing land use plans and procedures which are based on sound planning information and practice, and to facilitate the development of local plans which are consistent with State and regional plans and programs;

g.An increasing concentration of the poor and minorities in older urban areas jeopardizes the future well-being of this State, and a sound and comprehensive planning process will facilitate the provision of equal social and economic opportunity so that all of New Jersey's citizens can benefit from growth, development and redevelopment;

h.An adequate response to judicial mandates respecting housing for low- and moderate-income persons requires sound planning to prevent sprawl and to promote suitable use of land; and i.These purposes can be best achieved through the establishment of a State planning commission consisting of representatives from the executive and legislative branches of State government, local government, the general public and the planning community.

L.1985,c.398,s.1; amended 2004, c.120, s.63.

NJSA 52:18A-197. State Planning Commission

There is established in the Department of the Treasury a State Planning Commission, to consist of 17 members to be appointed as follows:

a. The State Treasurer and four other cabinet members to be appointed by and serve at the pleasure of the Governor. Each cabinet member serving on the commission may be represented by an official designee, whose name shall be filed with the commission. All other members of the cabinet, or their designees, shall be entitled to receive notice of and attend meetings of the commission and, upon request, receive all official documents of the commission;

b. Two other members of the executive branch of State government to be appointed by and serve at the pleasure of the Governor;

c. Four persons, not more than two of whom shall be members of the same political party, who shall represent municipal and county governments, and at least one of whom shall represent the interest of urban areas, to be appointed by the Governor with the advice and consent of the Senate for terms of four years and until their respective successors are appointed and qualified, except that the first four appointments shall be for terms of one, two, three and four years, respectively. In making these appointments, the Governor shall give consideration to the recommendations of the New Jersey League of Municipalities, the New Jersey Conference of Mayors, the New Jersey Association of Counties, and the New Jersey Federation of Planning Officials;

d. Six public members, not more than three of whom shall be of the same political party, and of whom at least one shall be a professional planner, to be appointed by the Governor with the advice and consent of the Senate for terms of four years and until their respective successors are appointed and qualified, except that of the first six appointments, one shall be for a term of one year, one for a term of two years, two for a term of three years and two for a term of four years.

Vacancies in the membership of the commission shall be filled for the unexpired terms only in the same manner as the original appointments were made. Members shall receive no compensation for their services but shall be entitled to reimbursement for expenses incurred in the performance of their official duties.

Members of the commission shall be subject to the provisions of the "New Jersey Conflicts of Interest Law," P.L. 1971, c. 182 (C. 52:13D-12 et seq.).

L. 1985, c. 398, s. 2, eff. Jan. 2, 1986.

NJSA 52:18A-199. Duties of the commission

4.The commission shall:

a.Prepare and adopt within 36 months after the enactment of P.L.1985, c.398 (C.52:18A-196 et al.) , and revise and readopt at least every three years thereafter, the State Development and Redevelopment Plan, which shall provide a coordinated, integrated and comprehensive plan for the growth, development, renewal and conservation of the State and its regions and which shall identify areas for growth, agriculture, open space conservation and other appropriate designations;

b.Prepare and adopt as part of the plan a long-term Infrastructure Needs Assessment, which shall provide information on present and prospective conditions, needs and costs with regard to State, county and municipal capital facilities, including water, sewerage, transportation, solid waste, drainage, flood protection, shore protection and related capital facilities;

c.Develop and promote procedures to facilitate cooperation and coordination among State agencies, regional entities, and local governments with regard to the development of plans, programs and policies which affect land use, environmental, capital and economic development issues;

d.Provide technical assistance to local governments and regional entities in order to encourage the use of the most effective and efficient planning and development review data, tools and procedures;

e.Periodically review State, regional, and local government planning procedures and relationships and recommend to the Governor and the Legislature administrative or legislative action to promote a more efficient and effective planning process;

f.Review any bill introduced in either house of the Legislature which appropriates funds for a capital project and may study the necessity, desirability and relative priority of the appropriation by reference to the State Development and Redevelopment Plan, and may make recommendations to the Legislature and to the Governor concerning the bill; and

g.Take all actions necessary and proper to carry out the provisions of P.L.1985, c.398 (C.52:18A-196 et al.).

L.1985,c.398,s.4; amended 1987, c.308; 2004, c.120, s.64.

NJSA 52:18A-200. State Development and Redevelopment Plan

5.The State Development and Redevelopment Plan shall be designed to represent a balance of development and conservation objectives best suited to meet the needs of the State. The plan shall:

a.Protect the natural resources and qualities of the State, including, but not limited to, agricultural development areas, fresh and saltwater wetlands, flood plains, stream corridors, aquifer recharge areas, steep slopes, areas of unique flora and fauna, and areas with scenic, historic, cultural and recreational values;

b.Promote development and redevelopment in a manner consistent with sound planning and where infrastructure can be provided at private expense or with reasonable expenditures of public funds. This should not be construed to give preferential treatment to new construction;

c.Consider input from State, regional, county and municipal entities concerning their land use, environmental, capital and economic development plans, including to the extent practicable any State and regional plans concerning natural resources or infrastructure elements;

d.Identify areas for growth, limited growth, agriculture, open space conservation and other appropriate designations that the commission may deem necessary;

e.Incorporate a reference guide of technical planning standards and guidelines used in the preparation of the plan; and

f.Coordinate planning activities and establish Statewide planning objectives in the following areas: land use, housing, economic development, transportation, natural resource conservation, agriculture and farmland retention, recreation, urban and suburban redevelopment, historic preservation, public facilities and services, and intergovernmental coordination.

L.1985,c.398,s.5; amended 2004, c.120, s.65.

NJSA 52:18A-201. Office of State Planning

6. a. There is established in the Department of the Treasury the Office of State Planning. The director of the office shall be appointed by and serve at the pleasure of the Governor. The director shall supervise and direct the activities of the office and shall serve as the secretary and principal executive officer of the State Planning Commission.

b.The Office of State Planning shall assist the commission in the performance of its duties and shall:

(1)Publish an annual report on the status of the State Development and Redevelopment Plan which shall describe the progress towards achieving the goals of the plan, the degree of consistency achieved among municipal, county, regional, and State plans, the capital needs of the State, and progress towards providing housing where such need is indicated;

(2)Provide planning service to other agencies or instrumentalities of State government, review the plans prepared by them, and coordinate planning to avoid or mitigate conflicts between plans;

(3)Provide advice and assistance to regional, county and local planning units;

(4)Review and comment on the plans of interstate agencies where the plans affect this State;

(5)Compile quantitative current estimates and Statewide forecasts for population, employment, housing and land needs for development and redevelopment; and

(6)Prepare and submit to the State Planning Commission, as an aid in the preparation of the State Development and Redevelopment Plan, alternate growth and development strategies which are likely to produce favorable economic, environmental and social results.

c.The director shall ensure that the responsibilities and duties of the commission are fulfilled, and shall represent the commission and promote its activities before government agencies, public and private interest groups and the general public, and shall undertake or direct such other activities as the commission shall direct or as may be necessary to carry out the purposes of P.L.1985, c.398 (C.52:18A-196 et al.).

d.With the consent of the commission, the director shall assign to the commission from the staff of the office at least two full-time planners, a full-time liaison to local and county governments and regional entities, and such other staff, clerical, stenographic and expert assistance as the director shall deem necessary for the fulfillment of the commission's responsibilities and duties.

L.1985,c.398,s.6; amended 2004, c.120, s.66.

NJSA 52:18A-201.1. "Military facility," "military facility commander," notification of land use plan

5. a. As used in this section: "military facility" means any facility located within the State which is owned or operated by the federal government, and which is used for the purposes of providing logistical, technical, material, training, and any other support to any branch of the United States military; and "military facility commander" means the chief official, base commander or person in charge at a military facility.

b.Whenever any State department, office, agency, authority, or commission proposes a plan that would impact the use of land within 3,000 feet in all directions of any military facility, it shall notify the Director of the Office of State Planning in the Department of Community Affairs prior to finalizing its plan. The director shall contact the appropriate military facility commander in order to solicit comments addressing any land use compatibility issues which may be of concern to the military and shall forward those comments to the appropriate State department, office, agency, authority, or commission. The State department, office, agency, authority, or commission shall not finalize its plan until it has reviewed any comments submitted by the military facility commander on its proposed plan.

c.The Adjutant General of the Department of Military and Veterans' Affairs shall, within 30 days of the effective date of P.L.2005, c.41 (C.40:55D-12.4 et al.), forward a list of military facilities to the Director of the Office of State Planning. The director shall circulate the list to each State department, office, agency, authority or commission.

d.The Director of the Office of State Planning, upon receiving the list of military facilities from the Adjutant General, shall forthwith notify those municipalities and State departments, offices, agencies, authorities and commissions of the requirements of this section.

L.2005,c.41,s.5.

NJSA 52:18A-202. Advice of other entities; plan cross-acceptance

7. a. In preparing, maintaining and revising the State Development and Redevelopment Plan, the commission shall solicit and give due consideration to the plans, comments and advice of each county and municipality, State agencies designated by the commission, the Highlands Water Protection and Planning Council established pursuant to section 4 of P.L.2004, c.120 (C.13:20-4), and other local and regional entities. Prior to the adoption of each plan, the commission shall prepare and distribute a preliminary plan to each county planning board, municipal planning board and other requesting parties, including State agencies, the Highlands Water Protection and Planning Council, and metropolitan planning organizations. Not less than 45 nor more than 90 days thereafter, the commission shall conduct a joint public informational meeting with each county planning board in each county and with the Highlands Water Protection and Planning Council for the purpose of providing information on the plan, responding to inquiries concerning the plan, and receiving informal comments and recommendations from county and municipal planning boards, local public officials, the Highlands Water Protection and Planning Council, and other interested parties.

b.The commission shall negotiate plan cross-acceptance with each county planning board, which shall solicit and receive any findings, recommendations and objections concerning the plan from local planning bodies. Each county planning board shall negotiate plan cross-acceptance among the local planning bodies within the county, unless it shall notify the commission in writing within 45 days of the receipt of the preliminary plan that it waives this responsibility, in which case the commission shall designate an appropriate entity, or itself, to assume this responsibility. Each board or designated entity shall, within ten months of receipt of the preliminary plan, file with the commission a formal report of findings, recommendations and objections concerning the plan, including a description of the degree of consistency and any remaining inconsistency between the preliminary plan and county and municipal plans. In any event, should any municipality's plan remain inconsistent with the State Development and Redevelopment Plan after the completion of the cross-acceptance process, the municipality may file its own report with the State Planning Commission, notwithstanding the fact that the county planning board has filed its report with the State Planning Commission. The term cross-acceptance means a process of comparison of planning policies among governmental levels with the purpose of attaining compatibility between local, county, regional, and State plans. The process is designed to result in a written statement specifying areas of agreement or disagreement and areas requiring modification by parties to the cross-acceptance.

c.Upon consideration of the formal reports of the county planning boards, the commission shall prepare and distribute a final plan to county and municipal planning boards, the Highlands Water Protection and Planning Council, and other interested parties. The commission shall conduct not less than six public hearings in different locations throughout the State for the purpose of receiving comments on the final plan. The commission shall give at least 30 days' public notice of each hearing in advertisements in at least two newspapers which circulate in the area served by the hearing and at least 30 days' notice to the governing body and planning board of each county and municipality in the area served by the hearing and to the Highlands Water Protection and Planning Council for any area in the Highlands Region served by the hearing.

d.Taking full account of the testimony presented at the public hearings, the commission shall make revisions in the plan as it deems necessary and appropriate and adopt the final plan by a majority vote of its authorized membership no later than 60 days after the final public hearing.

L.1985,c.398,s.7; amended 1998, c.109, s.1; 2004, c.120, s.67.

NJSA 52:18A-202a. Extended period for filing report on preliminary plan

2.The extended period for the filing of a formal report of findings, recommendations and objections concerning the preliminary plan provided for in section 7 of P.L.1985, c.398 (C.52:18A-202), as amended by P.L.1998, c.109, shall apply to any preliminary plan which has not been finalized by the commission, as provided in subsection c. of section 7 of P.L.1985, c.398 (C.52:18A-202) prior to the effective date of P.L.1998, c.109.

L.1998,c.109,s.2.

NJSA 52:18A-202.1. Findings, declarations

The Legislature finds and declares that:

a. There are many concerns associated with the design and implementation of the State Development and Redevelopment Plan (hereafter referred to as the "Plan"), including:

(1) maintaining beneficial growth;

(2) improving environmental quality;

(3) assuring cost-effective delivery of infrastructure and other public services;

(4) improving intergovernmental coordination;

(5) preserving the quality of community life; and

(6) redeveloping the State's major urban areas.

b. Each of these concerns is an important issue for further study and each should serve as a measure of the efficacy of the Plan.

c. However, these concerns are not mutually exclusive and, therefore, a balance among them must be achieved to maximize the well-being for the State and its residents.

d. The process of cross-acceptance of the State Development and Redevelopment Plan required under the "State Planning Act," P.L.1985, c.398 (C.52:18A-196 et seq.), is a process designed to elicit the greatest degree of public participation in order to encourage the development of a consensus among the many, sometimes competing, interests in the State.

e. This consensus will be facilitated by the availability of sufficient information concerning the impact the State Development and Redevelopment Plan may have on particular regions and on the overall economic well-being of the State.

f. The Plan evolves through three phases:

(1) the Preliminary Plan, which will serve as the basis for cross-acceptance;

(2) the Interim Plan, which will reflect the changes occurring during the cross-acceptance process; and

(3) the Final Plan, which is to be implemented after approval by the State Planning Commission.

g. A two-stage process shall be established to examine the economic, environmental, infrastructure, community life, and intergovernmental coordination impacts of the Plan. This procedure shall consist of an assessment of the impacts of the Interim Plan and an on-going monitoring and evaluation program after the Final Plan is adopted.

h. The results of the Assessment Study shall identify desirable changes to be incorporated into the Final Plan. These studies shall describe the impacts of the policies and strategies proposed in the Plan (hereafter referred to as the "Plan" impacts) relative to the impacts that would likely occur without a Plan (hereafter referred to as "Trend" impacts). In examining the impacts of Plan and Trend, any significant regional differences that result shall be identified and analyzed. Where appropriate, the study shall also distinguish short-term and long-term impacts.

i. It is necessary to conduct an economic assessment of the Plan and Trend impacts and to make the results of that assessment available before adoption of the Final Plan. Work on the development of the evaluation methodology and, where possible, the collection of data for the assessment study shall commence upon enactment of this bill. Some factors that shall be addressed during cross-acceptance include: (1) Changes in property values, including farmland, State and local expenditures and tax revenues, and regulations;

(2) Changes in housing supply, housing prices, employment, population and income;

(3) Costs of providing the infrastructure systems identified in the State Planning Act;

(4) Costs of preserving the natural resources as identified in the State Planning Act;

(5) Changes in business climate; and

(6) Changes in the agricultural industry and the costs of preserving farmland and open spaces.

L.1989, c.332, s.1.

NJSA 52:18A-202.2. Studies; review

2. a. The Office of State Planning in consultation with the Office of Economic Policy, shall utilize the following:

(1)Conduct portions of these studies using its own staff;

(2)Contract with other State agencies to conduct portions of these studies; and

(3)Contract with an independent firm or an institution of higher learning to conduct portions of these studies.

b.Any portion of the studies conducted by the Office of State Planning, or any other State agency, shall be subject to review by an independent firm or an institution of higher learning.

c.The Assessment Study and the oversight review shall be submitted in the form of a written report to the State Planning Commission for distribution to the Governor, the Legislature, appropriate regional entities, and the governing bodies of each county and municipality in the State during the cross-acceptance process and prior to the adoption of the Final Plan.

d.A period extending from at least 45 days prior to the first of six public hearings, which are required under the State Planning Act, P.L.1985, c.398 (C.52:18A-196 et seq.), to 30 days following the last public hearing shall be provided for counties and municipalities to review and respond to the studies. Requests for revisions to the Interim Plan shall be considered by the State Planning Commission in the formulation of the Final Plan.

L.1989,c.332,s.2; amended 2004, c.120, s.68.

NJSA 52:18A-202.3.On-going monitoring and evaluation program

a. The Final Plan shall include the appropriate monitoring variables and plan targets in the economic, environmental, infrastructure, community life, and intergovernmental coordination areas to be evaluated on an on-going basis following adoption of the Final Plan.

b. In implementing the monitoring and evaluation program, if Plan targets are not being realized, the State Planning Commission shall evaluate reasons for the occurrences and determine if changes in Plan targets or policies are warranted.

c. The Office of State Planning shall include in its annual report results of the on-going monitoring and evaluation program and forward the report to the Governor and the Legislature.

L.1989, c.332, s.3.

NJSA 52:18A-203. Rules, regulations

8. a. The commission shall adopt rules and regulations to carry out its purposes, including procedures to facilitate the solicitation and receipt of comments in the preparation of the preliminary and final plan and to ensure a process for comparison of the plan with county and municipal master plans and regional plans, and procedures for coordinating the information collection, storage and retrieval activities of the various State agencies, and to establish a process for the endorsement of municipal, county, and regional plans that are consistent with the State Development and Redevelopment Plan.

b.Any municipality or county or portion thereof located in the Highlands preservation area as defined in section 3 of P.L.2004, c.120 (C.13:20-3) shall be exempt from the plan endorsement process established in the rules and regulations adopted pursuant to subsection a. of this section. Upon the State Planning Commission endorsing the regional master plan adopted by the Highlands Water Protection and Planning Council pursuant to section 8 of P.L.2004, c.120 (C.13:20-8), any municipal master plan and development regulations or county master plan and associated regulations that have been approved by the Highlands Water Protection and Planning Council pursuant to section 14 or 15 of P.L.2004, c.120 (C.13:20-14 or C.13:20-15) shall be deemed the equivalent of having those plans endorsed by the State Planning Commission.

L.1985,c.398,s.8; amended 2004, c.120, s.69.

NJSA 52:18A-204. Assistance of personnel of other entities

9.The commission shall be entitled to call to its assistance any personnel of any State agency, regional entity, or county, municipality or political subdivision thereof as it may require in order to perform its duties. The officers and personnel of any State agency, regional entity, or county, municipality or political subdivision thereof and any other person may serve at the request of the commission upon any advisory committee as the commission may create without forfeiture of office or employment and with no loss or diminution in the compensation, status, rights and privileges which they otherwise enjoy.

L.1985,c.398,s.9; amended 2004, c.120, s.70.

NJSA 52:18A-205. Provision of data by other entities

10.Each State agency, regional entity, or county, municipality or political subdivision thereof shall make available to the commission any studies, surveys, plans, data and other materials or information concerning the capital, land use, environmental, transportation, economic development and human services plans and programs of the agency, entity, county, municipality or political subdivision.

L.1985,c.398,s.10; amended 2004, c.120, s.71.

NJSA 52:18A-206. Other plans, regulations unaffected; adoption of coastal planning policies

11. a. The provisions of P.L.1985, c.398 (C.52:18A-196 et al.) shall not be construed to affect the plans and regulations of the Pinelands Commission pursuant to the "Pinelands Protection Act," P.L. 1979, c.111 (C.13:18A-1 et seq.), the New Jersey Meadowlands Commission pursuant to the "Hackensack Meadowlands Reclamation and Development Act," P.L.1968, c.404 (C.13:17-1 et seq.), or the Highlands Water Protection and Planning Council pursuant to the "Highlands Water Protection and Planning Act," P.L.2004, c.120 (C.13:20-1 et al.) for that portion of the Highlands Region lying within the preservation area as defined in section 3 of P.L.2004, c.120 (C.13:20-3) . The State Planning Commission shall rely on the adopted plans and regulations of these entities in developing the State Development and Redevelopment Plan.

b.The State Planning Commission may adopt, after the enactment date of P.L.1993, c.190 (C.13:19-5.1 et al.), the coastal planning policies of the rules and regulations adopted pursuant to P.L.1973, c.185 (C.13:19-1 et seq.), the coastal planning policies of the rules and regulations adopted pursuant to subsection b. of section 17 of P.L.1973, c.185 (C.13:19-17) and any coastal planning policies of rules and regulations adopted pursuant to P.L.1973, c.185 (C.13:19-1 et seq.) thereafter as the State Development and Redevelopment Plan for the coastal area as defined in section 4 of P.L.1973, c.185 (C.13:19-4).

L.1985,c.398,s.11; amended 1993, c.190, s.19; 2004, c.120, s.72.

NJSA 52:18A-207. Short title

Sections 1 through 12 of this act shall be known and may be cited as the "State Planning Act."

L. 1985, c. 398, s. 12, eff. Jan. 2, 1986.

NJSA 52:27D-10.5 Definitions relative to Smart Growth in DCA and expedited permits

8.As used in section 9 of P.L.2004, c.89 (C.52:27D-10.6):

"Applicant" means any person applying for a permit pursuant to section 9 of P.L.2004, c.89 (C.52:27D-10.6);

"Ombudsman" or "Smart Growth Ombudsman" means the Smart Growth Ombudsman appointed by the Governor pursuant to section 2 of P.L.2004, c.89 (C.25:27D-10.3);

"Permit" means any permit or approval required as a condition of development or redevelopment and issued by the Department of Community Affairs pursuant to any law or any rule or regulation adopted pursuant thereto;

"Person" means any individual, corporation, company, partnership, firm, association, owner or operator of a treatment works, political subdivision of this State, or State or interstate agency; and

"Smart Growth Area" means an area designated pursuant to P.L.1985, c.398 (C.52:18A-196 et seq.) as Planning Area 1 (Metropolitan), Planning Area 2 (Suburban), a designated center, or a designated growth center in an endorsed plan; a smart growth area and planning area designated in a master plan adopted by the New Jersey Meadowlands Commission pursuant to subsection (i) of section 6 of P.L.1968, c.404 (C.13:17-6); a growth area designated in the comprehensive management plan prepared and adopted by the Pinelands Commission pursuant to section 7 of the "Pinelands Protection Act," P.L.1979, c.111 (C.13:18A-8); an urban enterprise zone designated pursuant to P.L.1983, c.303 (C.52:27H-60 et seq.) or P.L.2001, c.347 (C.52:27H-66.2 et al.); an area determined to be in need of redevelopment pursuant to sections 5 and 6 of P.L.1992, c.79 (C.40A:12A-5 and 40A:12A-6) and as approved by the Department of Community Affairs; or similar areas designated by the Department of Environmental Protection.

L.2004,c.89,s.8.

NJSA 52:27D-10.6 Division of Smart Growth established in DCA

9. a. There is established in the Department of Community Affairs a Division of Smart Growth under the direction of a director, who shall be appointed by the Governor and report to the Commissioner of Community Affairs. The director shall review and take action on permits for which the applicant has requested expedited review pursuant to this section.

b.The director shall coordinate and expedite the review of permits issued by the division with the Smart Growth Ombudsman appointed pursuant to section 2 of P.L.2004, c.89 (C.52:27D-10.3).

c. (1) An applicant may request an expedited permit application review for a proposed project in a smart growth area. In order to qualify for expedited permit application review pursuant to this section, an applicant shall include with a permit application all necessary documentation, a request for expedited permit application review, and the permit fee established in accordance with subsection d. of this section. The permit application shall be signed by the applicant and by a professional qualified and registered in accordance with subsection e. of this section, certifying that a permit application is complete and that the statutory and regulatory requirements for the permit have been met by the applicant. A copy of the application and the request shall also be submitted to the ombudsman and to the clerk of the municipality and the clerk of the county in which the proposed project is located. A permit application that qualifies for expedited permit application review pursuant to this section shall be subject to the following time frames:

(a)the division shall notify an applicant within 20 days after the filing date if the permit application lacks a submission identified on a checklist therefor, or a submission has not been completed. If an application, including the permit fee and all necessary documentation, is determined to be complete or if a notice of incompleteness is not provided within 20 days after the filing of the application, the application shall be deemed complete for purposes of commencing a technical review;

(b)the division shall notify an applicant if the permit application is technically complete or issue a notice of deficiency within 45 days after the filing of the application. If an application is determined to be technically complete, or if a notice of deficiency is not issued within 45 days after the filing of the application, the application shall be deemed technically complete. A notice of deficiency shall itemize all deficiencies that must be addressed in order for the application to be determined technically complete. A notice of deficiency shall be deemed exclusive and further review for technical completeness shall be limited to the items so identified;

(c)the division shall take action on a technically complete permit application within 45 days, except that this time period may be extended for a 30-day period by the mutual consent of the applicant and the department. In the event that the department fails to take action on an application for a permit within the 45-day period specified herein, then the application shall be deemed to have been approved; and

(d)if more than one notice of deficiency is issued by the division, the applicant may request an expedited hearing in accordance with section 14 of P.L.2004, c.89 (C.52:14F-17) to determine whether the application is technically complete.

(2)Nothing in this subsection shall supersede shorter periods for department action provided by applicable law.

d.The direct and indirect costs of personnel, equipment, operating expenses, and activities of the division shall be funded solely through permit fees for permits issued in the smart growth areas. The department shall, in consultation with the ombudsman, establish permit fees necessary for the department to administer and enforce the program. The fee schedule established pursuant to this subsection shall include the department's pro rata share of the budget of the Smart Growth Ombudsman. Within 30 days after the date of enactment of P.L.2004, c.89 (C.52:27D-10.2 et al.), the department, in consultation with the ombudsman, shall publish a schedule of permit fees in the New Jersey Register and may amend the fee schedule as necessary. The fee schedule may provide for increased fees for complex projects.

e. (1) The Director of the Division of Smart Growth shall, within 120 days after the date of enactment of P.L.2004, c.89 (C.52:27D-10.2 et al.), develop a program for the qualification and registration of professionals who shall certify that a permit application is complete and that the statutory and regulatory requirements for the permit have been met by the applicant. The requirements for qualification and registration may include, but shall not be limited to, professional licensure relevant to the subject matter of the permit, a review of projects undertaken by the professional applying for qualification and registration, and a review of the nature of the professional's services provided on each project.

(2)The director shall include in the program for the qualification and registration of professionals any standards or requirements necessary for proper administration and enforcement of the provisions of P.L.2004, c.89 (C.52:27D-10.2 et al.), and shall provide for the suspension or revocation of the qualification and registration of professionals as provided in this subsection.

(3)Any person who negligently violates any requirement of the program established by the department for the qualification and registration of professionals may lose professional licensure for one year, may be barred from qualification and registration for a period of three years, and the firm with which that individual is associated may be barred from seeking qualification and registration for a period of three years.

(4)If a person willfully or recklessly violates any requirement of the program established by the department for the qualification and registration of professionals, that individual shall lose professional licensure for one year, shall be permanently barred from qualification and registration, and the firm with which that individual is associated shall be permanently barred from seeking qualification and registration.

(5)Prior to any suspension, revocation, or failure to renew a person's qualification and registration, the department shall afford the person or firm an opportunity for a hearing in accordance with the provisions of the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), except that, if the department has reason to believe that a condition exists which poses an imminent threat to the public health, safety or welfare, it may order the immediate suspension of qualification and registration pending the outcome of the hearing.

f.The director, after consultation with the Smart Growth Ombudsman, may adopt rules and regulations in accordance with the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.) as appropriate to implement the requirements of this section and to encourage development in the smart growth areas.

g.Nothing in this section shall be construed or implemented in such a way as to modify any requirement of law that is necessary to retain federal delegation to, or assumption by, the State of the authority to implement a federal law or program.

h.Applications for an expedited permit application review pursuant to subsection c. of this section shall not be accepted until 120 days following the date of enactment of P.L.2004, c.89 (C.52:27D-10.2 et al.). Applications pending on the date of enactment of P.L.2004, c.89 (C.52:27D-10.2 et al.) shall, upon request of the applicant, be processed in the expedited permit application review program when it becomes effective. A permit application that is the subject of a request under this provision shall be transferred to the Division of Smart Growth for processing in accordance with P.L.2004, c.89 (C.52:27D-10.2 et al.).

L.2004,c.89,s.9.

NJSA 58:10B-1. Definitions

23. As used in sections 23 through 43 and section 45 of P.L.1993, c.139 (C.58:10B-1 et seq.), as may be amended and supplemented:

"Area of Concern" means any location where contaminants are or were known or suspected to have been discharged, generated, manufactured, refined, transported, stored, handled, treated, or disposed, or where contaminants have or may have migrated;

"Authority" means the New Jersey Economic Development Authority established pursuant to P.L.1974, c.80 (C.34:1B-1 et seq.);

"Brownfield Development Area" means an area that has been so designated by the department, in writing, pursuant to the provisions of section 7 of P.L.2005, c.223 (C.58:10B-25.1);

"Brownfield Site" 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 a contaminant;

"Contamination" or "Contaminant" means any discharged hazardous substance as defined pursuant to section 3 of P.L.1976, c.141 (C.58:10-23.11b), hazardous waste as defined pursuant to section 1 of P.L.1976, c.99 (C.13:1E-38), or pollutant as defined pursuant to section 3 of P.L.1977, c.74 (C.58:10A-3);

"Department" means the Department of Environmental Protection;

"Discharge" means an intentional or unintentional action or omission resulting in the releasing, spilling, leaking, pumping, pouring, emitting, emptying, or dumping of a contaminant onto the land or into the waters of the State;

"Engineering Controls" means any mechanism to contain or stabilize contamination or ensure the effectiveness of a remedial action. Engineering controls may include, without limitation, caps, covers, dikes, trenches, leachate collection systems, signs, fences and physical access controls;

"Environmental Opportunity Zone" has the meaning given that term pursuant to section 3 of P.L.1995, c.413 (C.54:4-3.152);

"Final Remediation Document" means a no further action letter issued by the department pursuant to P.L.1993, c.139 (C.58:10B-1 et al.), or a response action outcome issued by a licensed site remediation professional pursuant to section 14 of P.L.2009, c.60 (C.58:10C-14);

"Financial Assistance" means loans or loan guarantees;

"Institutional Controls" means a mechanism used to limit human activities at or near a contaminated site, or to ensure the effectiveness of the remedial action over time, when contaminants remain at a contaminated site in levels or concentrations above the applicable remediation standard that would allow unrestricted use of that property. Institutional controls may include, without limitation, structure, land, and natural resource use restrictions, well restriction areas, and deed notices;

"Licensed Site Remediation Professional" means an individual who is licensed by the Site Remediation Professional Licensing Board pursuant to section 7 of P.L.2009, c.60 (C.58:10C-7) or the department pursuant to section 12 of P.L.2009, c.60 (C.58:10C-12);

"Limited Restricted Use Remedial Action" means any remedial action that requires the continued use of institutional controls but does not require the use of an engineering control;

"No Further Action Letter" means a written determination by the department that based upon an evaluation of the historical use of a particular site, or of an area of concern or areas of concern at that site, as applicable, and any other investigation or action the department deems necessary, there are no discharged contaminants present at the site, at the area of concern or areas of concern, at any other site to which a discharge originating at the site has migrated, or that any discharged contaminants present at the site or that have migrated from the site have been remediated in accordance with applicable remediation regulations;

"Person" means an individual, corporation, company, partnership, firm, or other private business entity;

"Person Responsible for Conducting the Remediation" means (1) any person who executes or is otherwise subject to an oversight document to remediate a contaminated site, (2) the owner or operator of an industrial establishment subject to P.L.1983, c.330 (C.13:1K-6 et al.), for the remediation of a discharge, (3) the owner or operator of an underground storage tank subject to P.L.1986, c.102 (C.58:10A-21 et seq.), for the remediation of a discharge, (4) any other person who discharges a hazardous substance or is in any way responsible for a hazardous substance, pursuant to section 8 of P.L.1976, c.141 (C.58:10-23.11g), that was discharged at a contaminated site, or (5) any other person who is remediating a site;

"Preliminary Assessment" means the first phase in the process of identifying areas of concern and determining whether contaminants are or were present at a site or have migrated or are migrating from a site, and shall include the initial search for and evaluation of, existing site specific operational and environmental information, both current and historic, to determine if further investigation concerning the documented, alleged, suspected or latent discharge of any contaminant is required. The evaluation of historic information shall be conducted from 1932 to the present, except that the department may require the search for and evaluation of additional information relating to ownership and use of the site prior to 1932 if such information is available through diligent inquiry of the public records;

"Presumptive Remedy" means a remedial action established by the department pursuant to paragraph (10) of subsection g. of section 35 of P.L.1993, c.139 (C.58:10B-12);

"Recreation and Conservation Purposes" means the use of lands for beaches, biological or ecological study, boating, camping, fishing, forests, greenways, hunting, natural areas, parks, playgrounds, protecting historic properties, water reserves, watershed protection, wildlife preserves, active sports, or a similar use for either public outdoor recreation or conservation of natural resources, or both;

"Remedial Action" means those actions taken at a site or offsite if a contaminant has migrated or is migrating therefrom, as may be required by the department, including the removal, treatment, containment, transportation, securing, or other engineering or treatment measures, whether to an unrestricted use or otherwise, designed to ensure that any discharged contaminant at the site or that has migrated or is migrating from the site, is remediated in compliance with the applicable health risk or environmental standards;

"Remedial Action Workplan" means a plan for the remedial action to be undertaken at a site, or at any area to which a discharge originating at a site is migrating or has migrated; a description of the remedial action to be used to remediate a site; a time schedule and cost estimate of the implementation of the remedial action; and any other information the department deems necessary;

"Remedial Investigation" means a process to determine the nature and extent of a discharge of a contaminant at a site or a discharge of a contaminant that has migrated or is migrating from the site and the problems presented by a discharge, and may include data collected, site characterization, sampling, monitoring, and the gathering of any other sufficient and relevant information necessary to determine the necessity for remedial action and to support the evaluation of remedial actions if necessary;

"Remediation" or "Remediate" means all necessary actions to investigate and clean up or respond to any known, suspected, or threatened discharge of contaminants, including, as necessary, the preliminary assessment, site investigation, remedial investigation, and remedial action, provided, however, that "remediation" or "remediate" shall not include the payment of compensation for damage to, or loss of, natural resources;

"Remediation Fund" means the Hazardous Discharge Site Remediation Fund established pursuant to section 26 of P.L.1993, c.139 (C.58:10B-4);

"Remediation Funding Ssource" means the methods of financing the remediation of a discharge required to be established by a person performing the remediation pursuant to section 25 of P.L.1993, c.139 (C.58:10B-3);

"Remediation Standards" means the combination of numeric standards that establish a level or concentration, and narrative standards to which contaminants must be treated, removed, or otherwise cleaned for soil, groundwater, or surface water, as provided by the department pursuant to section 35 of P.L.1993, c.139 (C.58:10B-12) in order to meet the health risk or environmental standards;

"Response Action Outcome" means a written determination by a licensed site remediation professional that the contaminated site was remediated in accordance with all applicable statutes and regulations, and based upon an evaluation of the historical use of the site, or of any area of concern at that site, as applicable, and any other investigation or action the department deems necessary, there are no contaminants present at the site, or at any area of concern, at any other site to which a discharge originating at the site has migrated, or that any contaminants present at the site or that have migrated from the site have been remediated in accordance with applicable remediation regulations, and all applicable permits and authorizations have been obtained;

"Restricted Use Remedial Action" means any remedial action that requires the continued use of engineering and institutional controls in order to meet the established health risk or environmental standards;

"Site Investigation" means the collection and evaluation of data adequate to determine whether or not discharged contaminants exist at a site or have migrated or are migrating from the site at levels in excess of the applicable remediation standards. A site investigation shall be developed based upon the information collected pursuant to the preliminary assessment;

"Unrestricted Use Remedial Action" means any remedial action that does not require the continued use of engineering or institutional controls in order to meet the established health risk or environmental standards;

"Voluntarily Perform a Rremediation" means performing a remediation without having been ordered or directed to do so by the department or by a court and without being compelled to perform a remediation pursuant to the provisions of P.L.1983, c.330 (C.13:1K-6 et al.).

L.1993, c.139, s.23; amended 1997, c.278, s.9; 2001, c.154, s.3; 2005, c.223, s.1; 2009, c.60, s.40.

NJSA 58:10B-1.1. Short title [Brownfield and Contaminated Site Remediation Act]

1.Sections 23 through 43 and section 45 of P.L.1993, c.139 (C.58:10B-1 et seq.), as may be amended and supplemented, shall be known and may be cited as the "Brownfield and Contaminated Site Remediation Act."

L.1997,c.278,s.1.

NJSA 58:10B-1.2. Findings, declarations relative to remediation of contaminated sites

2.The Legislature finds and declares that due to New Jersey's industrial history, large areas in the State's urban and suburban areas formerly used for commercial and industrial purposes are underused or abandoned; that many of these properties, often referred to as brownfields, are contaminated with hazardous substances and pose a health risk to the nearby residents and a threat to the environment; and that these sites can be a blight to the neighborhood and a financial drain on a municipality because they have no productive use, and fail to generate property taxes and jobs. The Legislature further finds that often there are legal, financial, technical, and institutional impediments to the efficient and cost-effective cleanup of brownfield sites as well as all other contaminated sites wherever they may be. The Legislature finds and declares that the State needs to ensure that the public health and safety and the environment are protected from the risks posed by contaminated sites and that strict standards coupled with a risk based and flexible regulatory system will result in more cleanups and thus the elimination of the public's exposure to these hazardous substances and the environmental degradation that contamination causes.

The Legislature therefore declares that strict remediation standards are necessary to protect public health and safety and the environment; that these standards should be adopted based upon the risk posed by discharged hazardous substances; that unrestricted remedies for contaminated sites are preferable and the State must adopt policies that encourage their use; that institutional and engineering controls should be allowed only when the public health risk and environmental protection standards are met; and that in order to encourage the cleanup of contaminated sites, there must be finality in the process, the provision of financial incentives, liability protection for innocent parties who clean up, cleanup procedures that are cost effective and regulatory action that is timely and efficient.

1.Sections 23 through 43 and section 45 of P.L.1993, c.139 (C.58:10B-1 et seq.), as may be amended and supplemented, shall be known and may be cited as the "Brownfield and Contaminated Site Remediation Act." L.1997, c.278,s.2.

NJSA 58:10B-1.3. Remediation of discharge of hazardous substance; requirements

30. a. An owner or operator of an industrial establishment subject to the provisions of P.L.1983, c.330 (C.13:1K-6 et al.), the discharger of a hazardous substance or a person in any way responsible for a hazardous substance pursuant to the provisions of subsection c. of section 8 of P.L.1976, c.141 (C.58:10-23.11g), or the owner or operator of an underground storage tank regulated pursuant to the provisions of P.L.1986, c.102 (C.58:10A-21 et seq.), that has discharged a hazardous substance, shall remediate the discharge of a hazardous substance.

b.A person who initiates a remediation of a contaminated site at least 180 days after the date of enactment of P.L.2009, c.60 (C.58:10C-1 et al.) shall:

(1)hire a licensed site remediation professional to perform the remediation;

(2)notify the department of the name and license information of the licensed site remediation professional who has been hired to perform the remediation;

(3)conduct the remediation without the prior approval of the department, unless directed otherwise by the department;

(4)establish a remediation funding source if a remediation funding source is required pursuant to the provisions of section 25 of P.L.1993, c.139 (C.58:10B-3);

(5)pay all applicable fees and oversight costs as required by the department;

(6)provide access to the contaminated site to the department;

(7)provide access to all applicable documents concerning the remediation to the department;

(8)meet the mandatory remediation timeframes and expedited site specific timeframes established by the department pursuant to section 28 of P.L.2009, c.60 (C.58:10C-28); and

(9)obtain all necessary permits.

c. (1) Any person who initiates a remediation prior to the date of enactment of P.L.2009, c.60 (C.58:10C-1 et al.), or prior to the issuance of temporary licenses to site remediation professionals pursuant to section 12 of P.L.2009, c.60 (C.58:10C-12), shall comply with the provisions of paragraphs (4) through (9) of subsection b. of this section.

(2)The department may require a person required to perform a remediation pursuant to subsection a. of this section, or a person who has initiated a remediation prior to the date of enactment of P.L.2009, c.60 (C.58:10C-1 et al.), to comply with the provisions of subsection b. of this section if, after the date of enactment of P.L.2009, c.60 (C.58:10C-1 et al.), the department (a) issues a final order or a penalty becomes due and payable, concerning the performance of the remediation, or (b) issues a demand for stipulated penalties pursuant to the provisions of an oversight document in which the person waived a right to a hearing on the penalties.

(3)No later than three years after the date of enactment of P.L.2009, c.60 (C.58:10C-1 et al.), a person responsible for conducting the remediation, no matter when the remediation is initiated, shall comply with the provisions of subsection b. of this section.

d. (1) The provisions of this section shall not apply to any person who remediates a discharge from an unregulated heating oil tank. For any person who remediates a discharge from an unregulated heating oil tank, the provisions of section 15 of P.L.2009, c.60 (C.58:10C-15) shall apply.

(2)The provisions of this section shall not apply to any person who: (a) does not own a contaminated site, (b) conducts a preliminary assessment or site investigation of the contaminated site for the purpose of conducting all appropriate inquiry into the previous ownership and uses of the property as provided in section 8 of P.L.1976, c.141 (C.58:10-23.11g), and (c) has not discharged a hazardous substance at the site or is not in any way responsible for a hazardous substance discharged at the site pursuant to section 8 of P.L.1976, c.141 (C.58:10-23.11g).

e.Any person who fails to comply with the provisions of this section shall be liable to the enforcement provisions established pursuant to section 22 of P.L.1976, c.141 (C.58:10-23.11u).

L.2009, c.60, s.30.

NJSA 58:10B-2. Rules, regulations, deviations from regulations

24. a. The department shall, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), adopt rules and regulations establishing criteria and standards necessary for the submission, evaluation and approval of plans or results of preliminary assessments, site investigations, remedial investigations, and remedial action workplans and for the implementation thereof. The documents for the preliminary assessment, site investigation, remedial investigation, and remedial action workplan required to be submitted for a remediation, shall not be identical to the criteria and standards used for similar documents submitted pursuant to federal law, except as may be required by federal law. In establishing criteria and standards for these terms the department shall strive to be result oriented, provide for flexibility, and to avoid duplicate or unnecessarily costly or time consuming conditions or standards.

b.The regulations adopted by the department pursuant to subsection a. of this section shall provide that a person performing a remediation may deviate from the strict adherence to the regulations, in a variance procedure or by another method prescribed by the department, if that person can demonstrate that the deviation and the resulting remediation would be as protective of human health, safety, and the environment, as appropriate, as the department's regulations and that the health risk standards established in subsection d. of section 35 of P.L.1993, c.139 (C.58:10B-12) and any applicable environmental standards would be met. Factors to be considered in determining if the deviation should be allowed are whether the alternative method:

(1)has been either used successfully or approved by the department in writing or similar situations;

(2)reflects current technology as documented in peer-reviewed professional journals;

(3)can be expected to achieve the same or substantially the same results or objectives as the method which it is to replace; and

(4)furthers the attainment of the goals of the specific remedial phase for which it is used.

c.To the extent practicable and in conformance with the standards for remediations as provided in section 35 of P.L.1993, c.139 (C.58:10-12), the department shall adopt rules and regulations that allow for certain remedial actions to be undertaken in a manner prescribed by the department without having to obtain prior approval from or submit detailed documentation to the department. A person who performs a remedial action in the manner prescribed in the rules and regulations of the department, and who certifies this fact to the department, shall obtain a final remediation document for that particular remedial action.

d.The department shall develop regulatory procedures that encourage the use of innovative technologies in the performance of remedial actions and other remediation activities.

e.Notwithstanding any other provisions of this section, all remediation standards and remedial actions that involve real property located in the pinelands area shall be consistent with the provisions of the "Pinelands Protection Act," P.L.1979, c.111 (C.13:18A-1 et seq.), any rules and regulations adopted pursuant thereto, and with section 502 of the "National Parks and Recreation Act of 1978," 16 U.S.C. s.471i.

f.Notwithstanding any other provisions of this section, all remediation standards and remedial actions that involve real property located in the Highlands preservation area shall be consistent with the provisions of the "Highlands Water Protection and Planning Act," P.L.2004, c.120 (C.13:20-1 et al.), and any rules and regulations and the Highlands regional master plan adopted pursuant thereto.

L.1993, c.139, s.24; amended 1997, c.278, s.10; 2004, c.120, s.80; 2009, c.60, s.41.

NJSA 58:10B-2.1. Departmental oversight of cleanup, remediation; fee, costs, certain, permitted

1. a. In the case of an owner or operator of an industrial establishment or any other person required to perform remediation activities pursuant to P.L.1983, c.330 (C.13:1K-6 et al.), or a discharger, a person in any way responsible for a hazardous substance, or a person otherwise liable for cleanup and removal costs pursuant to subsection c. of section 8 of P.L.1976, c.141 (C.58:10-23.11g) and who does not have a defense to liability pursuant to subsection d. of that section, the fees for department oversight of the cleanup and removal of a discharge of a hazardous substance performed after the effective date of P.L.2002, c.37 may include the indirect costs of the department and the costs related to the department's oversight charged to the department by other State departments or agencies.

b.In the case of the remediation of a contaminated site performed by any person not subject to the provisions of subsection a. of this section, the fees for department oversight of the remediation performed after the effective date of P.L.2002, c.37 shall not include any indirect costs, but may include those program costs directly related to the oversight of the remediation and the costs related to the department's oversight charged to the department by other State departments or agencies.

c.In the case of the cleanup and removal of a discharged hazardous substance at a person's primary residence, the fees for department oversight of the remediation performed after the effective date of P.L.2002, c.37 shall not include any indirect costs, but may include only those program costs directly related to the oversight of the remediation.

d.The department shall not establish or impose a fee for the oversight of any cleanup and removal of a discharged hazardous substance or for the remediation of a contaminated site that includes direct program costs and indirect costs which together exceed seven and one-half percent of the cost of the remediation of a contaminated site or the cleanup and removal of a discharged hazardous substance.

L.2002, c.37, s.1; amended 2009, c.60,s.42.

NJSA 58:10B-3. Establishment, maintenance of remediation funding source

25. a. Except as otherwise provided in section 27 of P.L.2009, c.60 (C.58:10C-27), the owner or operator of an industrial establishment or any other person required to perform remediation activities pursuant to P.L.1983, c.330 (C.13:1K-6 et al.), or a discharger, a person in any way responsible for a hazardous substance, or a person otherwise liable for cleanup and removal costs pursuant to P.L.1976, c.141 (C.58:10-23.11 et seq.) who has been issued a directive or an order by a State agency, who has entered into an administrative consent order with a State agency, or who has been ordered by a court to clean up and remove a hazardous substance or hazardous waste discharge pursuant to P.L.1976, c.141 (C.58:10-23.11 et seq.), shall establish and maintain a remediation funding source in the amount necessary to pay the estimated cost of the required remediation. A person who voluntarily undertakes a remediation pursuant to a memorandum of agreement with the department, or without the department's oversight, or who performs a remediation in an environmental opportunity zone is not required to establish or maintain a remediation funding source. A person who uses an innovative technology or who, in a timely fashion, implements an unrestricted use remedial action or a limited restricted use remedial action for all or part of a remedial action is not required to establish a remediation funding source for the cost of the remediation involving the innovative technology or permanent remedy. A government entity, a person who undertakes a remediation at their primary or secondary residence, the owner or operator of a child care center licensed pursuant to P.L.1983, c.492 (C.30:5B-1 et seq.) who performs a remediation at the licensed child care center, or the person responsible for conducting a remediation at a public school or private school as defined in N.J.S.18A:1-1, or a charter school established pursuant to P.L.1995, c.426 (C.18A:36A-1 et seq.), shall not be required to establish or maintain a remediation funding source. A person required to establish a remediation funding source pursuant to this section shall provide to the department satisfactory documentation that the requirement has been met.

The remediation funding source shall be established in an amount equal to or greater than the cost estimate of the implementation of the remediation (1) as approved by the department or as determined by the licensed site remediation professional, as applicable, in accordance with rules and regulations adopted by the department pursuant to section 29 of P.L.2009, c.60 (C.58:10C-29), (2) as provided in an administrative consent order or remediation agreement or remediation certification as required pursuant to subsection e. of section 4 of P.L.1983, c.330, (3) as stated in a departmental order or directive, or (4) as agreed to by a court, and shall be in effect for a term not less than the actual time necessary to perform the remediation at the site. Whenever the remediation cost estimate increases, the person required to establish the remediation funding source shall cause the amount of the remediation funding source to be increased to an amount at least equal to the new estimate. Whenever the remediation cost estimate decreases, the person required to obtain the remediation funding source may file a written request to the department to decrease the amount in the remediation funding source or may submit written documentation to the department certified by the licensed site remediation professional of the details of the decrease in the cost estimate, as applicable. The remediation funding source may be decreased to the amount of the new estimate upon written approval by the department delivered to the person who established the remediation funding source or upon submission of the certification by the licensed site remediation professional, as applicable.

b.The person who established the remediation funding source may use the remediation funding source to pay for the actual cost of the remediation. The department may not require any other financial assurance by the person responsible for conducting the remediation other than that required in this section. In the case of a remediation performed pursuant to P.L.1983, c.330, the remediation funding source shall be established no more than 14 days after the approval by the department or the certification by the licensed site remediation professional of a remedial action workplan, upon approval of a remediation agreement pursuant to subsection e. of section 4 of P.L.1983, c.330 (C.13:1K-9), or upon submission of a remediation certification pursuant to subsection e. of P.L.1983, c.330, unless the department approves an extension. In the case of a remediation performed pursuant to P.L.1976, c.141, the remediation funding source shall be established as provided in an administrative consent order signed by the parties, as provided by a court, or as directed or ordered by the department. In the case of a remediation performed under the department's oversight pursuant to section 27 of P.L.2009, c.60 (C.58:10C-27), the remediation funding source shall be established at the time the person becomes subject to the department's oversight. The establishment of a remediation funding source for that part of the remediation funding source to be established by a grant or financial assistance from the remediation fund may be established for the purposes of this subsection by the application for a grant or financial assistance from the remediation fund and satisfactory evidence submitted to the department that the grant or financial assistance will be awarded. However, if the financial assistance or grant is denied or the department finds that the person responsible for establishing the remediation funding source did not take reasonable action to obtain the grant or financial assistance, the department shall require that the full amount of the remediation funding source be established within 14 days of the denial or finding. Except as provided in section 27 of P.L.2009, c.60 (C.58:10C-27), the remediation funding source shall be evidenced by the establishment and maintenance of (1) a remediation trust fund, (2) an environmental insurance policy, issued by an entity licensed by the Department of Banking and Insurance to transact business in the State of New Jersey, to fund the remediation, (3) a line of credit from a financial institution regulated pursuant to State or federal law and satisfactory to the department authorizing the person responsible for performing the remediation to borrow money, (4) a self-guarantee, or (5) a letter of credit from a financial institution regulated pursuant to State or federal law that guarantees the performance of the remediation by the person to the satisfaction of the department, or by any combination thereof. Where it can be demonstrated that a person cannot establish and maintain a remediation funding source for the full cost of the remediation by a method specified in this subsection, that person may establish the remediation funding source for all or a portion of the remediation, by securing financial assistance from the Hazardous Discharge Site Remediation Fund as provided in section 29 of P.L.1993, c.139 (C.58:10B-7).

c.A remediation trust fund shall be established pursuant to the provisions of this subsection. An originally signed duplicate of the trust agreement shall be delivered to the department by certified mail within 14 days of receipt of notice from the department that the remedial action workplan or remediation agreement as provided in subsection e. of section 4 of P.L.1983, c.330 is approved, upon submission of a remediation certification to the department as provided in subsection e. of section 4 of P.L.1983, c.330, or as specified in an administrative consent order, civil order, or order of the department, as applicable. The remediation trust fund agreement shall conform to a model trust fund agreement as established by the department and shall be accompanied by a certification of acknowledgment that conforms to a model established by the department. The trustee shall be an entity which has the authority to act as a trustee and whose trust operations are regulated and examined by a federal or New Jersey agency.

The trust fund agreement shall provide that the remediation trust fund may not be revoked or terminated by the person required to establish the remediation funding source or by the trustee without the written consent of the department. The trustee shall release to the person required to establish the remediation funding source, or to the department or transferee of the property, as appropriate, only those moneys as the department or the licensed site remediation professional authorizes, in writing, to be released. For any remediation subject to the oversight of the department pursuant to section 27 of P.L.2009, c.60 (C.58:10C-27), the person entitled to receive money from the remediation trust fund shall submit documentation to the department detailing the costs incurred or to be incurred as part of the remediation. Upon a determination by the department that the costs are consistent with the remediation of the site, the department shall, in writing, authorize a disbursement of moneys from the remediation trust fund in the amount of the documented costs.

The department shall return the original remediation trust fund agreement to the trustee for termination after the person required to establish the remediation funding source substitutes an alternative remediation funding source as specified in this section or the department notifies the person that that person is no longer required to maintain a remediation funding source for remediation of the contaminated site.

d.An environmental insurance policy shall be established pursuant to the provisions of this subsection. An originally signed duplicate of the insurance policy shall be delivered to the department by certified mail, overnight delivery, or personal service within 30 days of receipt of notice from the department that the remedial action workplan or remediation agreement, as provided in subsection e. of section 4 of P.L.1983, c.330, is approved, upon submission of a remediation certification to the department as provided in subsection e. of section 4 of P.L.1983, c.330, or as specified in an administrative consent order, civil order, or order of the department, as applicable. The insurance company shall release to the person required to establish the remediation funding source, or to the department or transferee of the property, as appropriate, only those moneys as the department or the licensed site remediation professional authorizes, in writing, to be released. The person entitled to receive money from the environmental insurance policy shall submit documentation to the department detailing the costs incurred or to be incurred as part of the remediation.

e.A line of credit shall be established pursuant to the provisions of this subsection. A line of credit shall allow the person establishing it to borrow money up to a limit established in a written agreement in order to pay for the cost of the remediation for which the line of credit was established. An originally signed duplicate of the line of credit agreement shall be delivered to the department by certified mail, overnight delivery, or personal service within 14 days of receipt of notice from the department that the remedial action workplan or remediation agreement as provided in subsection e. of section 4 of P.L.1983, c.330 is approved, upon submission of a remediation certification pursuant to subsection e. of P.L.1983, c.330 or as specified in an administrative consent order, civil order, or order of the department, as applicable. The line of credit agreement shall conform to a model agreement as established by the department and shall be accompanied by a certification of acknowledgment that conforms to a model established by the department.

The person or institution providing the line of credit shall release to the person required to establish the remediation funding source, or to the department or transferee of the property as appropriate, only those moneys as the department or the licensed site remediation professional authorizes, in writing, to be released. The person entitled to draw upon the line of credit shall submit documentation to the department detailing the costs incurred or to be incurred as part of the remediation. Upon a determination that the costs are consistent with the remediation of the site, the department shall, in writing, authorize a disbursement from the line of credit in the amount of the documented costs.

The department shall return the original line of credit agreement to the person or institution providing the line of credit for termination after the person required to establish the remediation funding source substitutes an alternative remediation funding source as specified in this section, or after the department notifies the person that that person is no longer required to maintain a remediation funding source for remediation of the contaminated site.

f.A person may self-guarantee a remediation funding source upon the submittal of documentation to the department demonstrating that the cost of the remediation as estimated in the remedial action workplan, in the remediation agreement as provided in subsection e. of section 4 of P.L.1983, c.330, in a remediation certification submitted pursuant to subsection e. of P.L.1983, c.330, in an administrative consent order, or as provided in a departmental or court order, would not exceed one-third of the tangible net worth of the person required to establish the remediation funding source, and that the person has a cash flow sufficient to assure the availability of sufficient moneys for the remediation during the time necessary for the remediation. Satisfactory documentation of a person's capacity to self-guarantee a remediation funding source shall consist of audited financial statements, in which the auditor expresses an unqualified opinion, that includes a statement of income and expenses or similar statement of that person and the balance sheet or similar statement of assets and liabilities as used by that person for the fiscal year of the person making the application that ended closest in time to the date of the self-guarantee application. In the case of a special purpose entity established specifically for the purpose of acquiring and redeveloping a contaminated site, and for which a statement of income and expenses is not available, the documentation shall include a statement of assets and liabilities certified by a certified public accountant. The self-guarantee application shall be certified as true to the best of the applicant's information, knowledge, and belief, by the chief financial, or similar officer or employee, or general partner, or principal of the person making the self-guarantee application. A person shall be deemed by the department to possess the required cash flow pursuant to this section if that person's gross receipts exceed its gross payments in that fiscal year in an amount at least equal to the estimated costs of completing the remedial action workplan schedule to be performed in the 12-month period following the date on which the application for self-guarantee is made. In the event that a self-guarantee is required for a period of more than one year, applications for a self-guarantee shall be renewed annually pursuant to this subsection for each successive year. The department may establish requirements and reporting obligations to ensure that the person proposing to self-guarantee a remediation funding source meets the criteria for self-guaranteeing prior to the initiation of remedial action and until completion of the remediation.

g. (1) If the person required to establish the remediation funding source fails to perform the remediation as required, or fails to meet the mandatory remediation timeframes or expedited site specific timeframes established pursuant to section 28 of P.L.2009, c.60 (C.58:10C-28) for the performance of the remedial action, the department shall make a written determination of this fact. A copy of the determination by the department shall be delivered to the person required to establish the remediation funding source and, in the case of a remediation conducted pursuant to P.L.1983, c.330 (C.13:1K-6 et al.), to any transferee of the property. Following this written determination, the department may perform the remediation in place of the person required to establish the remediation funding source. In order to finance the cost of the remediation the department may make disbursements from the remediation funding source, or, if sufficient moneys are not available from those funds, from the remediation guarantee fund created pursuant to section 45 of P.L.1993, c.139 (C.58:10B-20).

(2)The transferee of property subject to a remediation conducted pursuant to P.L.1983, c.330 (C.13:1K-6 et al.), may, at any time after the department's determination of nonperformance by the owner or operator required to establish the remediation funding source, petition the department, in writing, with a copy being sent to the owner and operator, for authority to perform the remediation at the industrial establishment. The department, upon a determination that the transferee is competent to do so, may grant that petition which shall authorize the transferee to perform the remediation as specified in an approved remedial action workplan, or to perform the activities as required in a remediation agreement, or as provided in a remediation certification, and to avail itself of the moneys in the remediation trust fund, letter of credit, or line of credit or to make claims upon the environmental insurance policy for these purposes. The petition of the transferee shall not be granted by the department if the owner or operator continues or begins to perform its obligations within 14 days of the petition being filed with the department.

(3)After the department has begun to perform the remediation in the place of the person required to establish the remediation funding source or has granted the petition of the transferee to perform the remediation, the person required to establish the remediation funding source shall not be permitted by the department to continue its performance obligations except upon the agreement of the department or the transferee, as applicable, or except upon a determination by the department that the transferee is not adequately performing the remediation.

h.A letter of credit shall be established pursuant to the provisions of this subsection. A letter of credit shall allow a person to guarantee the availability of funds up to a limit established in a written agreement in order to guarantee the payment of the cost of the remediation for which the letter of credit was established. An originally signed duplicate of the letter of credit agreement shall be delivered to the department by certified mail, overnight delivery, or personal service within 14 days of receipt of notice from the department that the remedial action workplan or remediation agreement as provided in subsection e. of section 4 of P.L.1983, c.330 (C.13:1K-9) is approved, upon submission of a remediation certification pursuant to subsection e. of P.L.1983, c.330, or as specified in an administrative consent order, civil order, or order of the department, as applicable. The letter of credit agreement shall conform to a model agreement as established by the department and shall be accompanied by a certification of acknowledgment that conforms to a model established by the department.

The financial institution that provides the letter of credit shall release to the department or to a person authorized to perform the remediation pursuant to subsection g. of this section, only moneys authorized by the department, or the authorized licensed site remediation professional, in writing, to be released. The department shall return the original letter of credit to the financial institution providing the letter of credit for termination after the person required to establish the remediation funding source substitutes an alternative remediation funding source as authorized in this section, or after the department notifies the person that that person is no longer required to maintain a remediation funding source for the remediation of the contaminated site.

L.1993, c.139, s.25; amended 1997, c.278, s.11; 2003, c.224, s.2; 2009, c.60, s.43

NJSA 58:10B-3.1. Authority to perform remediation of condemned property by local government unit, certain conditions

1. a. If a local government unit condemns contaminated property pursuant to the "Eminent Domain Act of 1971," P.L.1971, c.361 (C.20:3-1 et seq.), and the property is undergoing a remediation, the local government unit may petition the Department of Environmental Protection, in writing, for authority to perform the remediation of the condemned property. The department, upon a determination that the local government unit has demonstrated sufficient resources to perform the remediation, may replace the person performing the remediation of the condemned property with the local government unit that has condemned the property, provided that, at the time the condemnation action is filed, more than four years have elapsed since the person performing the remediation first entered into an oversight document for the site with the Department of Environmental Protection and the person has not begun implementation of a remedial action workplan for each area of concern on the property. The department shall not replace the person performing the remediation of the condemned property unless the local government unit enters into an appropriate oversight document with the department to perform the remediation.

b. Upon the replacement of the person performing a remediation of contaminated property with a local government unit pursuant to subsection a. of this section, the department may release the person performing the remediation from the requirement to establish a remediation funding source as otherwise required pursuant to section 25 of P.L.1993, c.139 (C.58:10B-3).

L.2005,c.355,s.1.

NJSA 58:10B-4. Hazardous Discharge Site Remediation Fund

26. a. There is established in the New Jersey Economic Development Authority a special, revolving fund to be known as the Hazardous Discharge Site Remediation Fund. Except as provided in section 4 of P.L.2007, c.135 (C.52:27D-130.7), moneys in the remediation fund shall be dedicated for the provision of financial assistance or grants to municipalities, counties, redevelopment entities authorized to exercise redevelopment powers pursuant to section 4 of P.L.1992, c.79 (C.40A:12A-4), and persons, for the purpose of financing remediation activities at sites at which there is, or is suspected of being, a discharge of hazardous substances or hazardous wastes.

b.The remediation fund shall be credited with:

(1)moneys as are appropriated by the Legislature;

(2)moneys deposited into the fund as repayment of principal and interest on outstanding loans made from the fund;

(3)any return on investment of moneys deposited in the fund;

(4)(Deleted by amendment, P.L.2009, c.60);

(5)moneys deposited in the fund as repayment of recoverable grants made by the New Jersey Redevelopment Authority for brownfield redevelopment;

(6)moneys deposited into the fund from cost recovery subrogation actions; and

(7)moneys made available to the authority for the purposes of the fund.

L.1993, c.139, s.26; amended 1997, c.278, s.12; 2005, c.223, s.2; 2007, c.135, s.1; 2009, c.60, s.44.

NJSA 58:10B-4.1. Repealed by L. 2005, c. 358, § 2, effective January 12, 2006

Repealed by L. 2005, c. 358, § 2, effective January 12, 2006

NJSA 58:10B-5. Financial assistance from remediation fund

27. a. (1) Except as provided in section 4 of P.L.2007, c.135 (C.52:27D-130.7), financial assistance from the remediation fund may only be rendered to persons who cannot establish a remediation funding source for the full amount of a remediation. Financial assistance pursuant to this act may be rendered only for that amount of the cost of a remediation for which the person cannot establish a remediation funding source. The limitations on receiving financial assistance established in this paragraph (1) shall not limit the ability of municipalities, counties, redevelopment entities authorized to exercise redevelopment powers pursuant to section 4 of P.L.1992, c.79 (C.40A:12A-4), persons who are not required to establish a remediation funding source for the part of the remediation involving an innovative technology, an unrestricted use remedial action or a limited restricted use remedial action, persons performing a remediation in an environmental opportunity zone, or persons who voluntarily perform a remediation, from receiving financial assistance from the fund.

(2)Financial assistance rendered to persons who voluntarily perform a remediation or perform a remediation in an environmental opportunity zone may only be made for that amount of the cost of the remediation that the person cannot otherwise fund by any of the authorized methods to establish a remediation funding source.

(3)Financial assistance rendered to persons who do not have to provide a remediation funding source for the part of the remediation that involves an innovative technology, an unrestricted use remedial action, or a limited restricted use remedial action may only be made for that amount of the cost of the remediation that the person cannot otherwise fund by any of the authorized methods to establish a remediation funding source.

b.Financial assistance may be rendered from the remediation fund to (1) owners or operators of industrial establishments who are required to perform remediation activities pursuant to P.L.1983, c.330 (C.13:1K-6 et al.), upon closing operations or prior to the transfer of ownership or operations of an industrial establishment, (2) persons who are liable for the cleanup and removal costs of a hazardous substance pursuant to P.L.1976, c.141 (C.58:10-23.11 et seq.), and (3) persons who voluntarily perform a remediation of a discharge of a hazardous substance or hazardous waste.

c.Financial assistance and grants may be made from the remediation fund to a municipality, county, or redevelopment entity authorized to exercise redevelopment powers pursuant to section 4 of P.L.1992, c.79 (C.40A:12A-4), for real property: (1) on which it holds a tax sale certificate; (2) that it has acquired through foreclosure or other similar means; or (3) that it has acquired, or in the case of a county governed by a board of chosen freeholders, has passed a resolution or, in the case of a municipality or a county operating under the "Optional County Charter Law," P.L.1972, c.154 (C.40:41A-1 et seq.), has passed an ordinance or other appropriate document to acquire, by voluntary conveyance for the purpose of redevelopment, for renewable energy generation or for recreation and conservation purposes. Financial assistance and grants may only be awarded for real property on which there has been a discharge or on which there is a suspected discharge of a hazardous substance or hazardous waste.

d.Grants may be made from the remediation fund to persons who own real property on which there has been a discharge of a hazardous substance or a hazardous waste and that person qualifies for an innocent party grant pursuant to section 28 of P.L.1993, c.139 (C.58:10B-6).

e.Grants may be made from the remediation fund to qualifying persons who propose to perform a remedial action that uses an innovative technology or that would result in an unrestricted use remedial action or a limited restricted use remedial action.

f.Grants may be made from the remediation fund to municipalities, counties, and redevelopment entities authorized to exercise redevelopment powers pursuant to section 4 of P.L.1992, c.79 (C.40A:12A-4), for the preliminary assessment, site investigation, remedial investigation and remedial action on contaminated real property within a brownfield development area. An ownership interest in the contaminated property shall not be required in order for a municipality, county, or redevelopment entity authorized to exercise redevelopment powers pursuant to section 4 of P.L.1992, c.79 (C.40A:12A-4) to receive a grant for a remediation of property in a brownfield redevelopment area. Notwithstanding the limitation on the total amount of financial assistance and grants that may be awarded in any one year pursuant to subsection b. of section 28 of P.L.1993, c.139 (C.58:10B-6), the authority may award an additional amount of financial assistance and grants in any one year, of up to $2,000,000, to any one municipality, county, or redevelopment entity for the remediation of property in a brownfield development area. Any property on which a municipality, county, or redevelopment entity makes expenditures for a remedial action and the property is not owned by that entity shall be subject to the provisions of section 8 of P.L.2005, c.223 (C.58:10B-25.2).

L.1993, c.139, s.27; amended 1996, c.62, s.64; 1997, c.278, s.13; 1999, c.214, s.1; 2005, c.223, s.3; 2007, c.135, s.2; 2009, c.302, s.1.

NJSA 58:10B-6. Financial assistance and grants from the fund; allocations; purposes

28. a. Except for moneys deposited in the remediation fund for specific purposes, and as provided in section 4 of P.L.2007, c.135 (C.52:27D-130.7), financial assistance and grants from the remediation fund shall be rendered for the following purposes. A written report shall be sent to the Senate Environment Committee, and the Assembly Environment and Solid Waste Committee, or their successors at the end of each calendar quarter detailing the allocation and expenditures related to the financial assistance and grants from the fund.

(1)Moneys shall be allocated for financial assistance to persons, for remediation of real property located in a qualifying municipality as defined in section 1 of P.L.1978, c.14 (C.52:27D-178);

(2)Moneys shall be allocated to: (a) municipalities, counties, or redevelopment entities authorized to exercise redevelopment powers pursuant to section 4 of P.L.1992, c.79 (C.40A:12A-4), for:

(i)projects in brownfield development areas pursuant to subsection f. of section 27 of P.L.1993, c.139 (C.58:10B-5),

(ii)matching grants up to a cumulative total amount from the fund of $5,000,000 per year of up to 75% of the costs of the remedial action for projects involving the redevelopment of contaminated property for recreation and conservation purposes, provided that the use of the property for recreation and conservation purposes is included in the comprehensive plan for the development or redevelopment of contaminated property, up to 75% of the costs of the remedial action for projects involving the redevelopment of contaminated property for renewable energy generation, or up to 50% of the costs of the remedial action for projects involving the redevelopment of contaminated property for affordable housing pursuant to P.L.1985, c.222 (C.52:27D-301 et al.),

(iii)grants for preliminary assessment, site investigation or remedial investigation of a contaminated site,

(iv)financial assistance for the implementation of a remedial action, or

(v)financial assistance for remediation activities at sites that have been contaminated by a discharge of a hazardous substance or hazardous waste, or at which there is an imminent and significant threat of a discharge of a hazardous substance or hazardous waste, and the discharge or threatened discharge poses or would pose an imminent and significant threat to a drinking water source, to human health, or to a sensitive or significant ecological area; or

(b)persons for financial assistance for remediation activities at sites that have been contaminated by a discharge of a hazardous substance or hazardous waste, or at which there is an imminent and significant threat of a discharge of a hazardous substance or hazardous waste, and the discharge or threatened discharge poses or would pose an imminent and significant threat to a drinking water source, to human health, or to a sensitive or significant ecological area.

Except as provided in subsection f. of section 27 of P.L.1993, c.139 (C.58:10B-5), financial assistance and grants to municipalities, counties, or redevelopment entities authorized to exercise redevelopment powers pursuant to section 4 of P.L.1992, c.79 (C.40A:12A-4) may be made for real property: (1) on which they hold a tax sale certificate; (2) that they have acquired through foreclosure or other similar means; or (3) that they have acquired, or, in the case of a county governed by a board of chosen freeholders, have passed a resolution or, in the case of a municipality or a county operating under the "Optional County Charter Law," P.L.1972, c.154 (C.40:41A-1 et seq.), have passed an ordinance or other appropriate document to acquire, by voluntary conveyance for the purpose of redevelopment, or for recreation and conservation purposes. Financial assistance and grants may only be awarded for real property on which there has been or on which there is suspected of being a discharge of a hazardous substance or a hazardous waste. Grants and financial assistance provided pursuant to this paragraph shall be used for performing preliminary assessments, site investigations, remedial investigations, and remedial actions on real property in order to determine the existence or extent of any hazardous substance or hazardous waste contamination, and to remediate the site in compliance with the applicable health risk and environmental standards on those properties. No financial assistance or grants for a remedial action shall be awarded until the municipality, county, or redevelopment entity authorized to exercise redevelopment powers pursuant to section 4 of P.L.1992, c.79 (C.40A:12A-4), actually owns the real property, provided that a matching grant for 75% of the costs of a remedial action for a project involving the redevelopment of contaminated property for recreation and conservation purposes, or a matching grant for 50% of the costs of a remedial action for a project involving the redevelopment of contaminated property for affordable housing pursuant to P.L.1985, c.222 (C.52:27D-301 et al.) may be made to a municipality, county, or redevelopment entity authorized to exercise redevelopment powers pursuant to section 4 of P.L.1992, c.79 (C.40A:12A-4) even if it does not own the real property and a grant may be made to a municipality, county, or redevelopment entity authorized to exercise redevelopment powers pursuant to section 4 of P.L.1992, c.79 (C.40A:12A-4) for a remediation in a brownfield development area pursuant to subsection f. of section 27 of P.L.1993, c.139 (C.58:10B-5) even if the entity does not own the real property. No grant shall be awarded for a remedial action for a project involving the redevelopment of contaminated property for recreation or conservation purposes unless the use of the property is preserved for recreation and conservation purposes by conveyance of a development easement, conservation restriction or easement, or other restriction or easement permanently restricting development, which shall be recorded and indexed with the deed in the registry of deeds for the county. A municipality that has performed, or on which there has been performed, a preliminary assessment, site investigation or remedial investigation on property may obtain a loan for the purpose of continuing the remediation on those properties as necessary to comply with the applicable remediation regulations adopted by the department. No grant shall be awarded pursuant to this paragraph to a municipality, a county, or a redevelopment entity authorized to exercise redevelopment powers pursuant to section 4 of P.L.1992, c.79 (C.40A:12A-4) unless that entity has adopted by ordinance or resolution a comprehensive plan specifically for the development or redevelopment of contaminated or potentially contaminated real property in that municipality or the entity can demonstrate to the authority that a realistic opportunity exists that the subject real property will be developed or redeveloped within a three-year period from the completion of the remediation;

(3)Moneys shall be allocated for financial assistance to persons who voluntarily perform a remediation of a hazardous substance or hazardous waste discharge;

(4)Moneys shall be allocated for grants to persons who own real property on which there has been a discharge of a hazardous substance or a hazardous waste and that person qualifies for an innocent party grant. A person qualifies for an innocent party grant if that person acquired the property prior to December 31, 1983 and continues to own the property until such time as the authority approves the grant, the hazardous substance or hazardous waste that was discharged at the property was not used by the person at that site, and that person certifies that he did not discharge any hazardous substance or hazardous waste at an area where a discharge is discovered. A grant authorized pursuant to this paragraph may be for up to 50% of the remediation costs at the area of concern for which the person qualifies for an innocent party grant, except that no grant awarded pursuant to this paragraph to any person may exceed $1,000,000;

(5)Moneys shall be allocated for (a) financial assistance to persons who own and plan to remediate an environmental opportunity zone for which an exemption from real property taxes has been granted pursuant to section 5 of P.L.1995, c.413 (C.54:4-3.154), or (b) matching grants for up to 25% of the project costs to qualifying persons, municipalities, counties, and redevelopment entities authorized to exercise redevelopment powers pursuant to section 4 of P.L.1992, c.79 (C.40A:12A-4), who propose to perform a remedial action that uses an innovative technology, or for the implementation of a limited restricted use remedial action or an unrestricted use remedial action except that no grant awarded pursuant to this paragraph may exceed $250,000; and

(6)Twenty percent of the moneys in the remediation fund shall be allocated for financial assistance or grants for any of the purposes enumerated in paragraphs (1) through (5) of this subsection.

For the purposes of paragraph (5) of this subsection, "qualifying persons" means any person who has a net worth of not more than $2,000,000 and "project costs" means that portion of the total costs of a remediation that is specifically for the use of an innovative technology or to implement an unrestricted use remedial action or a limited restricted use remedial action, as applicable.

b.Loans issued from the remediation fund shall be for a term not to exceed ten years, except that upon the transfer of ownership of any real property for which the loan was made, the unpaid balance of the loan shall become immediately payable in full. The unpaid balance of a loan for the remediation of real property that is transferred by devise or succession shall not become immediately payable in full, and loan repayments shall be made by the person who acquires the property. Loans to municipalities, counties, and redevelopment entities authorized to exercise redevelopment powers pursuant to section 4 of P.L.1992, c.79 (C.40A:12A-4), shall bear an interest rate equal to 2 points below the Federal Discount Rate at the time of approval or at the time of loan closing, whichever is lower, except that the rate shall be no lower than 3 percent. All other loans shall bear an interest rate equal to the Federal Discount Rate at the time of approval or at the time of the loan closing, whichever is lower, except that the rate on such loans shall be no lower than five percent. Financial assistance and grants may be issued for up to 100% of the estimated applicable remediation cost, except that the cumulative maximum amount of financial assistance which may be issued to a person, in any calendar year, for one or more properties, shall be $1,000,000. Financial assistance and grants to any one municipality, county, or redevelopment entity authorized to exercise redevelopment powers pursuant to section 4 of P.L.1992, c.79 (C.40A:12A-4) may not exceed $3,000,000 in any calendar year except as provided in subsection f. of section 27 of P.L.1993, c.139 (C.58:10B-5). Grants to a municipality, county, or redevelopment entity authorized to exercise redevelopment powers pursuant to section 4 of P.L.1992, c.79 (C.40A:12A-4) may be for up to 100% of the total costs of the preliminary assessment, site investigation, or remedial investigation regardless of when the application was received by the department. Grants to a municipality, a county, or a redevelopment entity authorized to exercise redevelopment powers pursuant to section 4 of P.L.1992, c.79 (C.40A:12A-4) may not exceed 75% of the total costs of the remedial action at any one site for any application received by the department on or after September 15, 2005. Repayments of principal and interest on the loans issued from the remediation fund shall be paid to the authority and shall be deposited into the remediation fund.

c.No person, other than a qualified person planning to use an innovative technology for the cost of that technology, a qualified person planning to use a limited restricted use remedial action or an unrestricted use remedial action for the cost of the remedial action, a person performing a remediation in an environmental opportunity zone, or a person voluntarily performing a remediation, shall be eligible for financial assistance from the remediation fund to the extent that person is capable of establishing a remediation funding source for the remediation as required pursuant to section 25 of P.L.1993, c.139 (C.58:10B-3).

d.The authority may use a sum that represents up to 2% of the moneys issued as financial assistance or grants from the remediation fund each year for administrative expenses incurred in connection with the operation of the fund and the issuance of financial assistance and grants.

e.Prior to March 1 of each year, the authority shall submit to the Senate Environment Committee and the Assembly Environment and Solid Waste Committee, or their successors, a report detailing the amount of money that was available for financial assistance and grants from the remediation fund for the previous calendar year, the amount of money estimated to be available for financial assistance and grants for the current calendar year, the amount of financial assistance and grants issued for the previous calendar year and the category for which each financial assistance and grant was rendered, and any suggestions for legislative action the authority deems advisable to further the legislative intent to facilitate remediation and promote the redevelopment and use of existing industrial sites.

L.1993, c.139, s.28; amended 1995, c.413, s.10; 1996, c.62, s.65; 1997, c.278, s.14; 1999, c.214, s.2; 2001, c.70; 2005, c.223, s.4; 2006, c.89; 2007, c.25; 2007, c.135, s.3; 2009, c.302, s.2; 2009, c.303.

NJSA 58:10B-6.1. Grants, Hazardous Discharge Site Remediation Fund; certain brownfield sites

1. a. Notwithstanding the provisions of sections 27 and 28 of P.L.1993, c.139 (C.58:10B-5 and 58:10B-6), or any other law, or any rule or regulation adopted pursuant thereto to the contrary, the New Jersey Economic Development Authority may provide grants or removeable grants from the Hazardous Discharge Site Remediation Fund established pursuant to section 26 of P.L.1993, c.139 (C.58:10B-4) to a municipality that has received a commitment prior to the effective date of this act from the New Jersey Redevelopment Authority, established pursuant to P.L.1996, c.62 (C.55:19-20 et al.), for funding the implementation of a remedial action and any other activities within the approved scope of work associated with the redevelopment of a brownfield site.

b.Grants may be provided pursuant to the provisions of this act to the following municipalities for the following projects:

Municipality/Amount

Bayonne $344,657

Camden $500,000

Camden-Nipper $1,500,000

Camden-Trailways $750,000

East Orange $100,000

Glassboro $94,000

Long Branch $350,000

Newark K-Mart $673,500

Newark Bergen Street $50,000

New Brunswick-Heldrich Center $1,000,000

Perth Amboy $845,000

Plainfield $750,000

Pleasantville $1,000,000

Rahway-80 East Milton $750,000

Rahway-Main & Monroe $25,000

Trenton $84,000

TOTAL: $8,816,157

c.Any repayments to the New Jersey Redevelopment Authority for grants or other financial assistance made for brownfields remediation or redevelopment pursuant to the provisions of this act shall be paid to the New Jersey Economic Development Authority and shall be deposited into the fund.

d.As used in this act, "brownfield site" 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 a contaminant.

L.2003,c.121,s.1.

NJSA 58:10B-7. Awarding of financial assistance, grants, priorities

29. a. A qualified applicant for financial assistance or a grant from the remediation fund shall be awarded financial assistance or a grant by the authority upon the availability of sufficient moneys in the remediation fund for the purpose of the financial assistance or grant. The authority shall award financial assistance and grants in the following order of priority:

(1)Sites on which there has been a discharge and the discharge poses an imminent and significant threat to a drinking water source, to human health, or to a sensitive or significant ecological area shall be given first priority; and

(2)Sites in areas designated as Planning Area 1 (Metropolitan), Planning Area 2 (Suburban), designated centers, or areas receiving plan endorsement as designated pursuant to the "State Planning Act," sections 1 through 12 of P.L.1985, c.398 (C.52:18A-196 et seq.), sites that the Brownfields Redevelopment Task Force, established pursuant to section 5 of P.L.1997, c.278 (C.58:10B-23), determines are of immediate economic development potential, and sites in brownfield development areas, shall be given second priority. The priority ranking of applicants within any priority category enumerated in this section for awarding financial assistance and grants from the remediation fund shall be based upon the date of receipt by the authority of an application from the applicant. If an application is determined to be incomplete by the authority, an applicant shall have 30 days from receipt of written notice of incompleteness to file any additional information as may be required by the authority for a completed application. If an applicant fails to file the additional information within those 30 days, the filing date for that application for financial assistance or a grant for a site that is not within a priority category enumerated in this section, shall be the date that the additional information is received by the authority. An application shall be deemed complete when all the information required by the authority has been received in the required form.

b.Within 90 days, for a private entity, or 180 days for a municipality, county, or a redevelopment entity authorized to exercise redevelopment powers pursuant to section 4 of P.L.1992, c.79 (C.40A:12A-4), of notice of approval of a financial assistance or grant application, an applicant shall submit to the authority an executed contract for the remediation activities for which the financial assistance or grant application was made. The contract shall be consistent with the terms and conditions for which the financial assistance or grant was rendered. Failure to submit an executed contract within the time provided, without good cause, shall constitute grounds for the alteration of an applicant's priority ranking for the awarding of financial assistance or a grant.

L.1993,c.139,s.29; amended 1996, c.62, s.66; 2005, c.223, s.5.

NJSA 58:10B-8. Financial assistance, grant recipients' compliance, conditions

30. a. The authority shall, by rule or regulation:

(1)require a financial assistance or grant recipient to provide to the authority, as necessary or upon request, evidence that financial assistance or grant moneys are being spent for the purposes for which the financial assistance or grant was made, and that the applicant is adhering to all of the terms and conditions of the financial assistance or grant agreement;

(2)require the financial assistance or grant recipient to provide access at reasonable times to the subject property to determine compliance with the terms and conditions of the financial assistance or grant;

(3)establish a priority system for rendering financial assistance or grants for remediations identified by the department as involving an imminent and significant threat to a public water source, human health, or to a sensitive or significant ecological area pursuant to subsection a. of section 28 of P.L.1993, c.139 (C.58:10B-6);

(4)(Deleted by amendment, P.L.2009, c.60);

(5)provide that an applicant for financial assistance or a grant pay a reasonable fee for the application which shall be used by the authority for the administration of the loan and grant program;

(6)provide that where financial assistance to a person other than a municipality, a county, or a redevelopment entity authorized to exercise redevelopment powers pursuant to section 4 of P.L.1992, c.79 (C.40A:12A-4), is for a portion of the remediation cost, that the proceeds thereof not be disbursed to the applicant until the costs of the remediation for which a remediation funding source has been established has been expended;

(7)provide that the amount of a grant for the costs of a remedial action shall not include the cost to remediate a site to meet residential soil remediation standards if the local zoning ordinances adopted pursuant to the "Municipal Land Use Law," P.L.1975, c.291 (C.40:55D-1 et seq.) do not allow for residential use;

(8)adopt such other requirements as the authority shall deem necessary or appropriate in carrying out the purposes for which the Hazardous Discharge Site Remediation Fund was created.

b.An applicant for financial assistance or a grant shall be required to:

(1)provide proof, as determined sufficient by the authority, that the applicant, where applicable, cannot establish a remediation funding source for all or part of the remediation costs, as required by section 25 of P.L.1993, c.139 (C.58:10B-3). The provisions of this paragraph do not apply to grants to innocent persons, grants for the use of innovative technologies, or grants for the implementation of unrestricted use remedial actions or limited restricted use remedial actions or to financial assistance or grants to municipalities, counties, or redevelopment entities authorized to exercise redevelopment powers pursuant to section 4 of P.L.1992, c.79 (C.40A:12A-4); and

(2)demonstrate the ability to repay the amount of the financial assistance and interest, and, if necessary, to provide adequate collateral to secure the financial assistance amount.

c.Information submitted as part of a loan or grant application or agreement shall be deemed a public record subject to the provisions of P.L.1963, c.73 (C.47:1A-1 et seq.).

d.In establishing requirements for financial assistance or grant applications and financial assistance or grant agreements, the authority:

(1)shall minimize the complexity and costs to applicants or recipients of complying with such requirements;

(2)may not require financial assistance or grant conditions that interfere with the everyday normal operations of the recipient's business activities, except to the extent necessary to ensure the recipient's ability to repay the financial assistance and to preserve the value of the loan collateral; and

(3)shall expeditiously process all financial assistance or grant applications in accordance with a schedule established by the authority for the review and the taking of final action on the application, which schedule shall reflect the degree of complexity of a financial assistance or grant application.

L.1993, c.139, s.30; amended 1997, c.278, s.15; 2005, c.223, s.6; 2009, c.60, s.45.

NJSA 58:10B-8.1. Conditions for payment of grant from Hazardous Discharge Site Remediation Fund

32. a. The New Jersey Economic Development Authority shall require that payment of a grant or financial assistance from the Hazardous Discharge Site Remediation Fund shall be conditioned upon the subrogation to the department of all rights of the recipient to recover remediation costs from an insurance carrier, discharger, or person in any way responsible for a hazardous substance pursuant to subsection c. of section 8 of P.L.1976, c.141 (C.58:10-23.11g) and who does not have a defense to liability pursuant to subsection d. of that section, upon the failure of the recipient to repay the financial assistance to the State. Nothing in this subsection shall be construed to limit or otherwise affect the authority or rights of the department concerning the discharge of a hazardous substance pursuant to P.L.1976, c.141, any other law, or pursuant to common law, against a discharger or a person in any way responsible for a hazardous substance.

b.The New Jersey Economic Development Authority shall not award a grant or financial assistance from the Hazardous Discharge Site Remediation Fund if the applicant relinquishes, impairs, or waives, or has relinquished, impaired, or waived, any right to recover the costs of the remediation against an insurance carrier, discharger, or person in any way responsible for a hazardous substance pursuant to subsection c. of section 8 of P.L.1976, c.141 (C.58:10-23.11g).

c.In any action by the department to enforce a right of subrogation, the department shall be entitled to invoke any right or defense available to the recipient of a grant or financial assistance from the Hazardous Discharge Site Remediation Fund.

d.All moneys collected in a cost recovery subrogation action shall be deposited into the Hazardous Discharge Site Remediation Fund.

L.2009, c.60, s.32.

NJSA 58:10B-9. Violators of environmental law may not receive financial assistance, grant

31. No financial assistance or grant from the remediation fund shall be rendered to a person who is currently in violation of an administrative or judicial order, judgment, or consent agreement regarding violation or threatened violation of an environmental law regarding the subject property, unless the violation, fee, penalty or assessment is currently being contested by the person in a manner prescribed by law or unless the violation resulted from a lack of sufficient money to perform required remediation activities.

L.1993,c.139,s.31.

NJSA 58:10B-10. Legal responsibility of applicant for compliance

32. a. The lack of sufficient moneys in the remediation fund to satisfy all financial assistance or grant applications shall not affect in any way an applicant's legal responsibility to comply with the requirements of P.L.1983, c.330 (C.13:1K-6 et al.), P.L.1976, c.141 (C.58:10-23.11 et seq.), or any other applicable provision of law.

b. Nothing in sections 23 through 43 of P.L.1993, c.139 (C.58:10B-1 et seq.) shall be construed to:

(1) impose any obligation on the State for any financial assistance or grant commitments rendered by the authority, and the authority's obligations shall be limited to the amount of otherwise unobligated moneys available in the fund therefor; or

(2) impose any obligation on the authority for the quality of any work performed pursuant to a remediation undertaken with financial assistance or a grant rendered pursuant to section 28 of P.L.1993, c.139 (C.58:10B-6).

L.1993,c.139,s.32.

NJSA 58:10B-11. Remediation funding source surcharge

33. a. There is imposed upon every person who is required to establish a remediation funding source pursuant to section 25 of P.L.1993, c.139 (C.58:10B-3) a remediation funding source surcharge. The remediation funding source surcharge shall be in an amount equal to 1% of the required amount of the remediation funding source required by the department to be maintained. No surcharge, however, may be imposed upon (1) that amount of the remediation funding source that is met by a self-guarantee as provided in subsection f. of section 25 of P.L.1993, c.139 (C.58:10B-3), (2) that amount of the remediation funding source that is met by financial assistance or a grant from the remediation fund, (3) any person who voluntarily performs a remediation pursuant to an administrative consent order, (4) any person who entered voluntarily into a memorandum of understanding with the department to remediate real property, as long as that person meets the mandatory remediation timeframes and expedited site specific timeframes established by the department pursuant to section 28 of P.L.2009, c.60 (C.58:10C-28), (5) any person performing a remediation in an environmental opportunity zone, or (6) that portion of the cost of the remediation that is specifically for the use of an innovative technology or to implement a limited restricted use remedial action or an unrestricted use remedial action. The surcharge shall be based on the cost of remediation work remaining to be completed and shall be paid on an annual basis as long as the remediation continues and until the Department of Environmental Protection issues a no further action letter or the licensed site remediation professional issues a response action outcome for the property subject to the remediation. The remediation funding source surcharge shall be due and payable within 14 days of the time of the department's approval of a remedial action workplan or signing an administrative consent order or as otherwise provided by law. The department shall collect the surcharge and shall remit all moneys collected to the Remediation Guarantee Fund established pursuant to section 45 of P.L.1993, c.139 (C.58:10B-20).

b.By February 1 of each year, the department shall issue a report to the Senate Environment Committee and to the Assembly Environment and Solid Waste Committee, or their successors, listing, for the prior calendar year, each person who owed the remediation funding source surcharge, the amount of the surcharge paid, and the total amount collected.

L.1993, c.139, s.33; amended 1997, c.278, s.16; 2009, c.60, s.46.

NJSA 58:10B-12. Adoption of remedial standards

35. a. The Department of Environmental Protection shall adopt minimum remediation standards for soil, groundwater, and surface water quality necessary for the remediation of contamination of real property. The remediation standards shall be developed to ensure that the potential for harm to public health and safety and to the environment is minimized to acceptable levels, taking into consideration the location, the surroundings, the intended use of the property, the potential exposure to the discharge, and the surrounding ambient conditions, whether naturally occurring or man-made.

Until the minimum remediation standards for the protection of public health and safety as described herein are adopted, the department shall apply public health and safety remediation standards for contamination at a site on a case-by-case basis based upon the considerations and criteria enumerated in this section.

The department may not require any person to perform an ecological evaluation of any area of concern that consists of an underground storage tank storing heating oil for on-site consumption in a one to four family residential building.

b.In developing minimum remediation standards the department shall:

(1)base the standards on generally accepted and peer reviewed scientific evidence or methodologies;

(2)base the standards upon reasonable assumptions of exposure scenarios as to amounts of contaminants to which humans or other receptors will be exposed, when and where those exposures will occur, and the amount of that exposure;

(3)avoid the use of redundant conservative assumptions. The department shall avoid the use of redundant conservative assumptions by the use of parameters that provide an adequate margin of safety and which avoid the use of unrealistic conservative exposure parameters and which guidelines make use of the guidance and regulations for exposure assessment developed by the United States Environmental Protection Agency pursuant to the "Comprehensive Environmental Response, Compensation, and Liability Act of 1980," 42 U.S.C. s.9601 et seq. and other statutory authorities as applicable;

(4)where feasible, establish the remediation standards as numeric or narrative standards setting forth acceptable levels or concentrations for particular contaminants; and

(5)consider and utilize, in the absence of other standards used or developed by the Department of Environmental Protection and the United States Environmental Protection Agency, the toxicity factors, slope factors for carcinogens and reference doses for non-carcinogens from the United States Environmental Protection Agency's Integrated Risk Information System (IRIS).

c. (1) The department shall develop residential and nonresidential soil remediation standards that are protective of public health and safety. For contaminants that are mobile and transportable to groundwater or surface water, the residential and nonresidential soil remediation standards shall be protective of groundwater and surface water. Residential soil remediation standards shall be set at levels or concentrations of contamination for real property based upon the use of that property for residential or similar uses and which will allow the unrestricted use of that property without the need of engineering devices or any institutional controls and without exceeding a health risk standard greater than that provided in subsection d. of this section. Nonresidential soil remediation standards shall be set at levels or concentrations of contaminants that recognize the lower likelihood of exposure to contamination on property that will not be used for residential or similar uses, which will allow for the unrestricted use of that property for nonresidential purposes, and that can be met without the need of engineering controls. Whenever real property is remediated to a nonresidential soil remediation standard, except as otherwise provided in paragraph (3) of subsection g. of this section, the department shall require, pursuant to section 36 of P.L.1993, c.139 (C.58:10B-13), that the use of the property be restricted to nonresidential or other uses compatible with the extent of the contamination of the soil and that access to that site be restricted in a manner compatible with the allowable use of that property.

(2)The department may develop differential remediation standards for surface water or groundwater that take into account the current, planned, or potential use of that water in accordance with the "Clean Water Act" (33 U.S.C. s.1251 et seq.) and the "Water Pollution Control Act," P.L.1977, c.74 (C.58:10A-1 et seq.).

d.The department shall develop minimum remediation standards for soil, groundwater, and surface water intended to be protective of public health and safety taking into account the provisions of this section. In developing these minimum health risk remediation standards the department shall identify the hazards posed by a contaminant to determine whether exposure to that contaminant can cause an increase in the incidence of an adverse health effect and whether the adverse health effect may occur in humans. The department shall set minimum soil remediation health risk standards for both residential and nonresidential uses that:

(1)for human carcinogens, as categorized by the United States Environmental Protection Agency, will result in an additional cancer risk of one in one million;

(2)for noncarcinogens, will limit the Hazard Index for any given effect to a value not exceeding one.

The health risk standards established in this subsection are for any particular contaminant and not for the cumulative effects of more than one contaminant at a site.

e.Remediation standards and other remediation requirements established pursuant to this section and regulations adopted pursuant thereto shall apply to remediation activities required pursuant to the "Spill Compensation and Control Act," P.L.1976, c.141 (C.58:10-23.11 et seq.), the "Water Pollution Control Act," P.L.1977, c.74 (C.58:10A-1 et seq.), P.L.1986, c.102 (C.58:10A-21 et seq.), the "Industrial Site Recovery Act," P.L.1983, c.330 (C.13:1K-6 et al.), the "Solid Waste Management Act," P.L.1970, c.39 (C.13:1E-1 et seq.), the "Comprehensive Regulated Medical Waste Management Act," sections 1 through 25 of P.L.1989, c.34 (C.13:1E-48.1 et seq.), the "Major Hazardous Waste Facilities Siting Act," P.L.1981, c.279 (C.13:1E-49 et seq.), the "Sanitary Landfill Facility Closure and Contingency Fund Act," P.L.1981, c.306 (C.13:1E-100 et seq.), the "Regional Low-Level Radioactive Waste Disposal Facility Siting Act," P.L.1987, c.333 (C.13:1E-177 et seq.), or any other law or regulation by which the State may compel a person to perform remediation activities on contaminated property. However, nothing in this subsection shall be construed to limit the authority of the department to establish discharge limits for pollutants or to prescribe penalties for violations of those limits pursuant to P.L.1977, c.74 (C.58:10A-1 et seq.), or to require the complete removal of nonhazardous solid waste pursuant to law.

f.(1) A person performing a remediation of contaminated real property, in lieu of using the established minimum soil remediation standard for either residential use or nonresidential use adopted by the department pursuant to subsection c. of this section, may submit to the department a request to use an alternative residential use or nonresidential use soil remediation standard. The use of an alternative soil remediation standard shall be based upon site specific factors which may include (1) physical site characteristics which may vary from those used by the department in the development of the soil remediation standards adopted pursuant to this section; or (2) a site specific risk assessment. If a person performing a remediation requests to use an alternative soil remediation standard based upon a site specific risk assessment, that person shall demonstrate to the department that the requested deviation from the risk assessment protocol used by the department in the development of soil remediation standards pursuant to this section is consistent with the guidance and regulations for exposure assessment developed by the United States Environmental Protection Agency pursuant to the "Comprehensive Environmental Response, Compensation, and Liability Act of 1980," 42 U.S.C.s.9601 et seq. and other statutory authorities as applicable. A site specific risk assessment may consider exposure scenarios and assumptions that take into account the form of the contaminant present, natural biodegradation, fate and transport of the contaminant, available toxicological data that are based upon generally accepted and peer reviewed scientific evidence or methodologies, and physical characteristics of the site, including, but not limited to, climatic conditions and topographic conditions. Nothing in this subsection shall be construed to authorize the use of an alternative soil remediation standard in those instances where an engineering control is the appropriate remedial action, as determined by the department, to prevent exposure to contamination.

Upon a determination by the department that the requested alternative remediation standard satisfies the department's regulations, is protective of public health and safety, as established in subsection d. of this section, and is protective of the environment pursuant to subsection a. of this section, the alternative residential use or nonresidential use soil remediation standard shall be approved by the department. The burden to demonstrate that the requested alternative remediation standard is protective rests with the person requesting the alternative standard and the department may require the submission of any documentation as the department determines to be necessary in order for the person to meet that burden.

(2)The department may, upon its own initiative, require an alternative remediation standard for a particular contaminant for a specific real property site, in lieu of using the established minimum residential use or nonresidential use soil remediation standard adopted by the department for a particular contaminant pursuant to this section. The department may require an alternative remediation standard pursuant to this paragraph upon a determination by the department, based on the weight of the scientific evidence, that due to specific physical site characteristics of the subject real property, including, but not limited to, its proximity to surface water, the use of the adopted residential use or nonresidential use soil remediation standards would not be protective, or would be unnecessarily overprotective, of public health or safety or of the environment, as appropriate.

g.The development, selection, and implementation of any remediation standard or remedial action shall ensure that it is protective of public health, safety, and the environment, as applicable, as provided in this section. In determining the appropriate remediation standard or remedial action that shall occur at a site, the department and any person performing the remediation, shall base the decision on the following factors:

(1)Unrestricted use remedial actions, limited restricted use remedial actions and restricted use remedial actions shall be allowed except that unrestricted use remedial actions and limited restricted use remedial actions shall be preferred over restricted use remedial actions. For any remediation initiated one year after the date of enactment of P.L.2009, c.60 (C.58:10C-1 et al.), the department shall require the use of an unrestricted use remedial action, or a presumptive remedy or an alternative remedy as provided in paragraph (10) of this subsection, at a site or area of concern where new construction is proposed for residential purposes, for use as a child care center licensed pursuant to P.L.1983, c.492 (C.30:5B-1 et seq.), or as a public school or private school as defined in N.J.S.18A:1-1, as a charter school established pursuant to P.L.1995, c.426 (C.18A:36A-1 et seq.), or where there will be a change in the use of the site to residential, child care, or public school, private school, or charter school purposes or another purpose that involves use by a sensitive population. For any remediation initiated on or after the date of enactment of P.L.2009, c.60 (C.58:10C-1 et al.), the department may require the use of an unrestricted use remedial action or a presumptive remedy as provided in guidelines adopted pursuant to paragraph (10) of this subsection for a site or area of concern that is to be used for residential, child care, or public school, private school, or charter school purposes or another purpose that involves use by a sensitive population. Except as provided in this subsection, and section 27 of P.L.2009, c.60 (C.58:10C-27), the department, however, may not disapprove the use of a restricted use remedial action or a limited restricted use remedial action so long as the selected remedial action meets the health risk standard established in subsection d. of this section, and where, as applicable, is protective of the environment. Except as provided in this subsection and section 27 of P.L.2009, c.60 (C.58:10C-27), the choice of the remedial action to be implemented shall be made by the person responsible for conducting the remediation in accordance with regulations adopted by the department and that choice of the remedial action shall be approved by the department if all the criteria for remedial action selection enumerated in this section, as applicable, are met. Except as provided in section 27 of P.L.2009, c.60 (C.58:10C-27), the department may not require a person to compare or investigate any alternative remedial action as part of its review of the selected remedial action. The department may disapprove the selection of a remedial action for a site on which the proposed remedial action will render the property unusable for future redevelopment or for recreational use;

(2)Contamination may, upon the department's approval, be left onsite at levels or concentrations that exceed the minimum soil remediation standards for residential use if the implementation of institutional or engineering controls at that site will result in the protection of public health, safety and the environment at the health risk standard established in subsection d. of this section, if the requirements established in subsections a., b., c. and d. of section 36 of P.L.1993, c.139 (C.58:10B-13), and paragraphs (1) and (10) of this subsection, are met. The department may also require the treatment or removal of contaminated material that would pose an acute health or safety hazard in the event of failure of an engineering control;

(3)Real property on which there is soil that has not been remediated to the residential soil remediation standards, or real property on which the soil, groundwater, or surface water has been remediated to meet the required health risk standard by the use of engineering or institutional controls, may be developed or used for residential purposes, or for any other similar purpose, if (a) all areas of that real property at which a person may come into contact with soil are remediated to meet the residential soil remediation standards, (b) it is clearly demonstrated that for all areas of the real property, other than those described in subparagraph (a) above, engineering and institutional controls can be implemented and maintained on the real property sufficient to meet the health risk standard as established in subsection d. of this section, and (c) a presumptive remedy established and approved by the department pursuant to paragraph (10) of this subsection, or an alternative remedy approved by the department pursuant to paragraph (10) of this subsection, has been approved, as provided in paragraphs (1) and (10) of this subsection;

(4)Remediation shall not be required beyond the regional natural background levels for any particular contaminant. The department shall develop regulations that set forth a process to identify background levels of contaminants for a particular region. For the purpose of this paragraph "regional natural background levels" means the concentration of a contaminant consistently present in the environment of the region of the site and which has not been influenced by localized human activities;

(5)Remediation shall not be required of the owner or operator of real property for contamination coming onto the site from another property owned and operated by another person, unless the owner or operator is the person who is liable for cleanup and removal costs pursuant to P.L.1976, c.141 (C.58:10-23.11 et seq.);

(6)Groundwater that is contaminated shall not be required to be remediated to a level or concentration for any particular contaminant lower than the level or concentration that is migrating onto the property from another property owned and operated by another person;

(7)The technical performance, effectiveness and reliability of the proposed remedial action in attaining and maintaining compliance with applicable remediation standards and required health risk standards shall be considered. In reviewing a proposed remedial action, the department or the licensed site remediation professional shall also consider the ability of the owner or operator to implement the proposed remedial action within a reasonable time frame without jeopardizing public health, safety or the environment;

(8)The use of a remedial action for soil contamination that is determined by the department to be effective in its guidance document created pursuant to section 38 of P.L.1993, c.139 (C.58:10B-14), is presumed to be an appropriate remedial action if it is to be implemented on a site in the manner described by the department in the guidance document and applicable regulations and if all of the conditions for remedy selection provided for in this section are met. The burden to prove compliance with the criteria in the guidance document is with the person responsible for conducting the remediation;

(9)(Deleted by amendment, P.L.1997, c.278);

(10) The department shall, by rule or regulation, establish presumptive remedies, use of which shall be required on any site or area of concern to be used for residential purposes, as a child care center licensed pursuant to P.L.1983, c.492 (C.30:5B-1 et seq.), as a public school or private school as defined in N.J.S.18A:1-1, or as a charter school established pursuant to P.L.1995, c.426 (C.18A:36A-1 et seq.). The department may also issue guidelines that provide for presumptive remedies that may be required as provided in paragraph (1) of this subsection, on a site to be used for residential purposes, as a child care center, or as a public school, private school or charter school. The presumptive remedies shall be based on the historic use of the property, the nature and extent of the contamination at the site, the future use of the site and any other factors deemed relevant by the department. The department may include the use of engineering and institutional controls in the presumptive remedies authorized pursuant to this subsection. If the person responsible for conducting the remediation demonstrates to the department that the use of an unrestricted use remedial action or a presumptive remedy is impractical due to conditions at the site, or that an alternative remedy would be equally protective over time as a presumptive remedy, then an alternative remedy for the site that is protective of the public health and safety may be proposed for review and approval by the department;

(11) The department may authorize a person conducting a remediation to divide a contaminated site into one or more areas of concern. For each area of concern, a different remedial action may be selected provided the requirements of this subsection are met and the remedial action selected is consistent with the future use of the property; and

(12) The construction of single family residences, public schools, private schools, or charter schools, or child care centers shall be prohibited on a landfill that undergoes a remediation if engineering controls are required for the management of landfill gas or leachate.

The burden to demonstrate that a remedial action is protective of public health, safety and the environment, as applicable, and has been selected in conformance with the provisions of this subsection is with the person responsible for conducting the remediation.

The department may require the person responsible for conducting the remediation to supply the information required pursuant to this subsection as is necessary for the department to make a determination.

h. (1) The department shall adopt regulations which establish a procedure for a person to demonstrate that a particular parcel of land contains large quantities of historical fill material. Upon a determination by the department that large quantities of historic fill material exist on that parcel of land, there is a rebuttable presumption that the department shall not require any person to remove or treat the fill material in order to comply with applicable health risk or environmental standards. In these areas the department shall establish by regulation the requirement for engineering or institutional controls that are designed to prevent exposure of these contaminants to humans, that allow for the continued use of the property, that are less costly than removal or treatment, which maintain the health risk standards as established in subsection d. of this section, and, as applicable, are protective of the environment. The department may rebut the presumption only upon a finding by the preponderance of the evidence that the use of engineering or institutional controls would not be effective in protecting public health, safety, and the environment. The department may not adopt any rule or regulation that has the effect of shifting the burden of rebutting the presumption. For the purposes of this paragraph "historic fill material" means generally large volumes of non-indigenous material, no matter what date they were emplaced on the site, used to raise the topographic elevation of a site, which were contaminated prior to emplacement and are in no way connected with the operations at the location of emplacement and which include, but are not limited to, construction debris, dredge spoils, incinerator residue, demolition debris, fly ash, and non-hazardous solid waste. Historic fill material shall not include any material which is substantially chromate chemical production waste or any other chemical production waste or waste from processing of metal or mineral ores, residues, slags or tailings.

(2)The department shall develop recommendations for remedial actions in large areas of historic industrial contamination. These recommendations shall be designed to meet the health risk standards established in subsection d. of this section, and to be protective of the environment and shall take into account the industrial history of these sites, the extent of the contamination that may exist, the costs of remedial actions, the economic impacts of these policies, and the anticipated uses of these properties. The department shall issue a report to the Senate Environment Committee and to the Assembly Environment and Solid Waste Committee, or their successors, explaining these recommendations and making any recommendations for legislative or regulatory action.

(3)The department may not, as a condition of allowing the use of a nonresidential use soil remediation standard, or the use of institutional or engineering controls, require the owner of that real property, except as provided in section 36 of P.L.1993, c.139 (C.58:10B-13), to restrict the use of that property through the filing of a deed easement, covenant, or condition.

i.The department may not require a remedial action workplan to be prepared or implemented or engineering or institutional controls to be imposed upon any real property unless sampling performed at that real property demonstrates the existence of contamination above the applicable remediation standards.

j.Upon the approval by the department or by a licensed site remediation professional of a remedial action workplan, or similar plan that describes the extent of contamination at a site and the remedial action to be implemented to address that contamination, the department may not subsequently require a change to that workplan or similar plan in order to compel a different remediation standard due to the fact that the established remediation standards have changed; however, the department may compel a different remediation standard if the difference between the new remediation standard and the remediation standard approved in the workplan or other plan differs by an order of magnitude. The limitation to the department's authority to change a workplan or similar plan pursuant to this subsection shall only apply if the workplan or similar plan is being implemented in a reasonable timeframe, as may be indicated in the approved remedial action workplan or similar plan.

k.Notwithstanding any other provisions of this section, all remediation standards and remedial actions that involve real property located in the Pinelands area shall be consistent with the provisions of the "Pinelands Protection Act," P.L.1979, c.111 (C.13:18A-1 et seq.), any rules and regulations promulgated pursuant thereto, and with section 502 of the "National Parks and Recreation Act of 1978," 16 U.S.C. s.471i; and all remediation standards and remedial actions that involve real property located in the Highlands preservation area shall be consistent with the provisions of the "Highlands Water Protection and Planning Act," P.L.2004, c.120 (C.13:20-1 et al.), and any rules and regulations and the Highlands regional master plan adopted pursuant thereto.

l.Upon the adoption of a remediation standard for a particular contaminant in soil, groundwater, or surface water pursuant to this section, the department may amend that remediation standard only upon a finding that a new standard is necessary to maintain the health risk standards established in subsection d. of section 35 of P.L.1993, c.139 (C.58:10B-12) or to protect the environment, as applicable. The department may not amend a public health based soil remediation standard to a level that would result in a health risk standard more protective than that provided for in subsection d. of section 35 of P.L.1993, c.139 (C.58:10B-12).

m.Nothing in P.L.1993, c.139 shall be construed to restrict or in any way diminish the public participation which is otherwise provided under the provisions of the "Spill Compensation and Control Act," P.L.1976, c.141 (C.58:10-23.11 et seq.).

n.Notwithstanding any provision of subsection a. of section 36 of P.L.1993, c.139 (C.58:10B-13) to the contrary, the department may not require a person intending to implement a remedial action at an underground storage tank facility storing heating oil for on-site consumption at a one to four family residential dwelling to provide advance notice to a municipality prior to implementing that remedial action.

o.A person who has remediated a site pursuant to the provisions of this section, who was liable for the cleanup and removal costs of that discharge pursuant to the provisions of paragraph (1) of subsection c. of section 8 of P.L.1976, c.141 (C.58:10-23.11g), and who remains liable for the discharge on that site due to a possibility that a remediation standard may change, undiscovered contamination may be found, or because an engineering control was used to remediate the discharge, shall maintain with the department a current address at which that person may be contacted in the event additional remediation needs to be performed at the site. The requirement to maintain the current address shall be made part of the conditions of the permit issued pursuant to section 19 of P.L.2009, c.60 (C.58:10C-19) and the final remediation document.

L.1993, c.139, s.35; amended 1997, c.278, s.17; 2004, c.120, s.81; 2009, c.60, s.47; 2010, c.87, s.3.

NJSA 58:10B-13. Use of nonresidential standards or other controls, requirements

36. a. When real property is remediated to a nonresidential soil remediation standard or engineering or institutional controls are used in lieu of remediating a site to meet an established remediation standard for soil, groundwater, or surface water, the person responsible for conducting the remediation shall, as a condition of the use of that standard or control measure:

(1)implement any engineering or institutional controls the department requires to prevent exposure to the contaminants, provide maintenance, as necessary, of those controls, and provide for the restriction of the use of the property by the owner in a manner that prevents exposure;

(2)with the consent of the owner of the real property, provide for the recording with the office of the county recording officer, in the county in which the property is located, a notice to inform prospective holders of an interest in the property that contamination exists on the property at a level that may statutorily restrict certain uses of or access to all or part of that property, a delineation of those restrictions, a description of all specific engineering or institutional controls at the property that exist and that shall be maintained in order to prevent exposure to contaminants remaining on the property, and the written consent to the notice by the owner of the property. The notice shall be recorded in the same manner as are deeds and other interests in real property. The department shall develop a uniform deed notice that ensures the proper filing of the deed notice. The provisions of this paragraph do not apply to restrictions on the use of surface water or groundwater;

(3)provide written notice to the governing body of each municipality in which the property is located that contaminants will exist at the property above residential use soil remediation standards or any other remediation standards and specifying the restrictions on the use of or access to all or part of that property and of the specific engineering or institutional controls at the property that exist and that shall be maintained;

(4)post signs, as required by the department, at any location at the site where access is restricted or in those areas that must be maintained in a prescribed manner, to inform persons on the property that there are restrictions on the use of that property or restrictions on access to any part of the site;

(5)maintain a list of the restrictions on site for inspection by governmental enforcement officials; and

(6)prior to commencing a remedial action, notify, in writing, the governing body of each municipality wherein the property being remediated is located. The notice shall include, but not be limited to, the commencement date for the remedial action; the name, mailing address and business telephone number of the person implementing the remedial action, or his designated representative; and a brief description of the remedial action.

b.If the owner of the real property does not consent to the recording of a notice pursuant to paragraph (2) of subsection a. of this section, the person responsible for conducting the remediation shall implement a remedial action that meets the residential soil remediation standard in the remediation of that real property.

c.Whenever engineering or institutional controls on property as provided in subsection a. of this section are no longer required, or whenever the engineering or institutional controls are changed because of the performance of subsequent remedial activities, a change in conditions at the site, or the adoption of revised remediation standards, the department shall require that the owner or operator of that property record with the office of the county recording officer a notice that the use of the property is no longer restricted or delineating the new restrictions. The person responsible for conducting the remediation shall notify, in writing, the municipality in which the property is located of the removal or change of the restrictive use conditions.

d.The owner or lessee of any real property, or any person operating a business on real property, which has been remediated to a nonresidential use soil remediation standard or on which a remedial action that includes engineering or institutional controls for soil, groundwater, or surface water has been implemented to protect the public health, safety, or the environment, as applicable, shall maintain the engineering or institutional controls as required by the department. An owner, lessee, or operator who takes any action that results in the improper alteration or removal of engineering or institutional controls or who fails to maintain the engineering or institutional controls as required by the department, shall be subject to the penalties and actions set forth in section 22 of P.L.1976, c.141 (C.58:10-23.11u) and, where applicable, shall be liable for any additional remediation and damages pursuant to the provisions of section 8 of P.L.1976, c.141 (C.58:10-23.11g). The provisions of this subsection shall not apply if a notification received pursuant to subsection c. of this section authorizes all restrictions or controls to be removed from the subject property.

e.Notwithstanding the provisions of any other law, or any rule, regulation, or order adopted pursuant thereto to the contrary, whenever contamination at a property is remediated in compliance with all applicable soil, groundwater or surface water remediation standards that were in effect or approved by the department at the completion of the remediation, no person, except as otherwise provided in this section, shall be liable for the cost of any additional remediation that may be required by a subsequent adoption by the department of a more stringent remediation standard for a particular contaminant. Upon the adoption of a regulation that amends a remediation standard, or where the adoption of a regulation would change a remediation standard which was otherwise approved by the department, only a person who is liable to clean up and remove that contamination pursuant to section 8 of P.L.1976, c.141 (C.58:10-23.11g), and who does not have a defense to liability pursuant to subsection d. of that section, shall be liable for any additional remediation costs necessary to bring the site into compliance with the new remediation standards except that no person shall be so liable unless the difference between the new remediation standard and the level or concentration of a contaminant at the property differs by an order of magnitude. The department may compel a person who is liable for the additional remediation costs to perform additional remediation activities to meet the new remediation standard except that a person may not be compelled to perform any additional remediation activities on the site if that person can demonstrate that the existing engineering or institutional controls on the site prevent exposure to the contamination and that the site remains protective of public health, safety and the environment pursuant to section 35 of P.L.1993, c.139 (C.58:10B-12). The burden to prove that a site remains protective is on the person liable for the additional remediation costs. A person liable for the additional remediation costs who is relying on engineering or institutional controls to make a site protective, shall comply with the provisions of subsections a., b., c. and d. of this section.

Nothing in the provisions of this subsection shall be construed to affect the authority of the department, pursuant to subsection f. of this section, to require additional remediation on real property where engineering controls were implemented.

Nothing in the provisions of this subsection shall limit the rights of a person, other than the State, or any department or agency thereof, to bring a civil action for damages, contribution, or indemnification as provided by statutory or common law.

f.Whenever the department approves or has approved, or a licensed site remediation professional implements a remedial action that includes, the use of engineering controls for the remediation of soil, groundwater, or surface water, to protect public health, safety or the environment, the department may require additional remediation of that site only if the engineering controls no longer are protective of public health, safety, or the environment.

g.Whenever the department approves or has approved, or a licensed site remediation professional implements a remedial action that includes, the use of engineering or institutional controls for the remediation of soil, groundwater, or surface water, to protect public health, safety or the environment, the department shall inspect that site at least once every five years in order to ensure that the engineering and institutional controls are being properly maintained and that the controls remain protective of public health and safety and of the environment.

h.A property owner of a site on which a deed notice has been recorded shall notify any person who intends to excavate on the site of the nature and location of any contamination existing on the site and of any conditions or measures necessary to prevent exposure to contaminants.

L.1993, c.139, s.36; amended 1997, c.278, s.18; 2009, c.60, s.48.

NJSA 58:10B-13.1. No further action letter; covenant not to sue

6. a. Whenever on or after October 16, 2009 the Department of Environmental Protection issues a no further action letter pursuant to a remediation, the person responsible for conducting the remediation shall be deemed by operation of law to have received a covenant not to sue with respect to the real property upon which the remediation has been conducted. The covenant not to sue shall be consistent with any conditions and limitations contained in the no further action letter. The covenant not to sue shall be for any area of concern remediated and may apply to the entire real property if the remediation included a preliminary assessment and, if necessary, a site investigation of the entire real property, and any other necessary remedial actions. The covenant remains effective only for as long as the real property for which the covenant was issued continues to meet the conditions of the no further action letter. Upon a finding by the department that real property or a portion thereof to which a covenant not to sue pertains, no longer meets with the conditions of the no further action letter, the department shall provide notice of that fact to the person responsible for maintaining compliance with the no further action letter. The department may allow the person a reasonable time to come into compliance with the terms of the original no further action letter. If the property does not meet the conditions of the no further action letter and if the department does not allow for a period of time to come into compliance or if the person fails to come into compliance within the time period, the covenant not to sue shall be deemed to be revoked by operation of law.

Except as provided in subsection e. of this section, a covenant not to sue shall by operation of law provide for the following, as applicable:

(1)a provision releasing the person who undertook the remediation from all civil liability to the State to perform any additional remediation, to pay compensation for damage to, or loss of, natural resources, for the restoration of natural resources in connection with the discharge on the property or for any cleanup and removal costs;

(2)for a remediation that involves the use of engineering or institutional controls:

(a)a provision requiring the person, or any subsequent owner, lessee, or operator during the person's period of ownership, tenancy, or operation, to maintain those controls, conduct periodic monitoring for compliance, and submit to the department, on a biennial basis, a certification that the engineering and institutional controls are being properly maintained and continue to be protective of public health and safety and of the environment. The certification shall state the underlying facts and shall include the results of any tests or procedures performed that support the certification; and

(b)a provision that the covenant is revoked by operation of law if the engineering or institutional controls are not being maintained or are no longer in place; and

(3)for a remediation that involves the use of engineering controls but not for any remediation that involves the use of institutional controls only, a provision barring the person or persons whom the covenant not to sue benefits, from making a claim against the New Jersey Spill Compensation Fund and the Sanitary Landfill Facility Contingency Fund for any costs or damages relating to the real property and remediation covered by the covenant not to sue. The covenant not to sue shall not bar a claim by any person against the New Jersey Spill Compensation Fund and the Sanitary Landfill Contingency Fund for any remediation that involves only the use of institutional controls if, after a valid no further action letter has been issued, the department orders additional remediation, except that the covenant shall bar such a claim if the department ordered additional remediation in order to remove the institutional control.

b.Unless a covenant not to sue issued under this section is revoked by the department, or by operation of law, the covenant shall remain effective. The covenant not to sue shall apply to all successors in ownership of the property and to all persons who lease the property or who engage in operations on the property.

c.If a covenant not to sue is revoked, liability for any additional remediation shall not be applied retroactively to any person for whom the covenant remained in effect during that person's ownership, tenancy, or operation of the property.

d.A covenant not to sue and the protections it affords shall not apply to any discharge that occurs subsequent to the issuance of the no further action letter which was the basis of the issuance of the covenant, nor shall a covenant not to sue and the protections it affords relieve any person of the obligations to comply in the future with laws and regulations.

e.The covenant not to sue shall be deemed to apply to any person who obtains a no further action letter as provided in subsection a. of this section. The covenant not to sue shall not provide relief from any liability, either under statutory or common law, to any person who is liable for cleanup and removal costs pursuant to subsection c. of section 8 of P.L.1976, c.141 (C.58:10-23.11g), and who does not have a defense to liability pursuant to subsection d. of that section.

f.(1) Except as provided in paragraphs (2) and (3) of this subsection, the department shall not issue covenants not to sue after the issuance of licenses to site remediation professionals pursuant to the provisions of section 12 of P.L.2009, c.60 (C.58:10C-12).

(2)The department may issue a covenant not to sue that is consistent with the provisions of this section when it issues a no further action letter for a remediation of a discharge from an unregulated heating oil tank.

(3)The department may issue a covenant not to sue as part of a settlement of litigation.

L.1997, c.278, s.6; amended 2001, c.154, s.4; 2005, c.4, s.3; 2009, c.60, s.49; 2009, c.300.

NJSA 58:10B-13.2. Covenant not to sue, provisions

31. a. After a licensed site remediation professional issues a response action outcome to the person responsible for conducting the remediation, the person shall be deemed, by operation of law, to have received a covenant not to sue with respect to the real property upon which the remediation has been conducted. The covenant not to sue shall be subject to any conditions and limitations contained in the response action outcome. The covenant not to sue shall be for any area of concern remediated and may apply to the entire real property if the remediation included a preliminary assessment and, if necessary, a site investigation of the entire real property, and any other necessary remedial actions. The covenant remains effective only for as long as the real property for which the covenant was deemed to have been issued continues to meet the conditions of the response action outcome. Upon a finding by the department that real property or a portion thereof to which a covenant not to sue pertains, no longer meets with the conditions of the response action outcome, the department shall provide notice of that fact to the person responsible for maintaining compliance with the response action outcome. The department may allow the person a reasonable time to come into compliance with the terms of the original response action outcome. If the property does not meet the conditions of the response action outcome and if the department does not allow for a period of time to come into compliance or if the person fails to come into compliance within the time period, the covenant not to sue shall be deemed to be revoked by operation of law.

Except as provided in subsection e. of this section, a covenant not to sue shall by operation of law provide for the following, as applicable:

(1)a provision releasing the person who undertook the remediation from all civil liability to the State to perform any additional remediation, to pay compensation for damage to, or loss of, natural resources, for the restoration of natural resources in connection with the discharge on the property or for any cleanup and removal costs;

(2)for a remediation that involves the use of engineering or institutional controls:

(a)a provision requiring the person, or any subsequent owner, lessee, or operator during the person's period of ownership, tenancy, or operation, to maintain those controls, conduct periodic monitoring for compliance, and submit to the department, on a biennial basis, a certification that the engineering and institutional controls are being properly maintained and continue to be protective of public health and safety and of the environment. The certification shall state the underlying facts and shall include the results of any tests or procedures performed that support the certification; and

(b)a provision that the covenant is revoked by operation of law if the engineering or institutional controls are not being maintained or are no longer in place; and

(3)for a remediation that involves the use of engineering controls but not for any remediation that involves the use of institutional controls only, a provision barring the person or persons whom the covenant not to sue benefits, from making a claim against the New Jersey Spill Compensation Fund and the Sanitary Landfill Facility Contingency Fund for any costs or damages relating to the real property and remediation covered by the covenant not to sue. The covenant not to sue shall not bar a claim by any person against the New Jersey Spill Compensation Fund and the Sanitary Landfill Contingency Fund for any remediation that involves only the use of institutional controls if, after a valid response action outcome has been issued, the department orders additional remediation, except that the covenant shall bar such a claim if the department ordered additional remediation in order to remove the institutional control.

b.The covenant not to sue shall apply to all successors in ownership of the property and to all persons who lease the property or who engage in operations on the property.

c.If a covenant not to sue is revoked, liability for any additional remediation shall not be applied retroactively to any person for whom the covenant remained in effect during that person's ownership, tenancy, or operation of the property.

d.A covenant not to sue and the protections it affords shall not apply to any discharge that occurs subsequent to the issuance of the response action outcome which was the basis of the issuance of the covenant, nor shall a covenant not to sue and the protections it affords relieve any person of the obligations to comply in the future with laws, rules and regulations.

e.The covenant not to sue shall be deemed to apply to any person who obtains a response action outcome as provided in subsection a. of this section. The covenant not to sue shall not provide relief from any liability, either under statutory or common law, to any person who is liable for cleanup and removal costs pursuant to subsection c. of section 8 of P.L.1976, c.141 (C.58:10-23.11g), and who does not have a defense to liability pursuant to subsection d. of that section.

L.2009, c.60, s.31.

NJSA 58:10B-14. Development of guidance document

38. Within 12 months of the effective date of this act, the department shall develop a guidance document for the remediation of contaminated soils. The guidance document shall include a description of remedial actions the department determines are effective in remediating soil contamination to the residential or nonresidential use soil remediation standards and that should be considered by a person performing a soil remediation. The department shall revise the guidance document periodically as it determines necessary. Adoption of the guidance document, or the revisions thereto, shall be published in the New Jersey Register but the adoption of the guidance document, or the revisions thereto, shall not otherwise be subject to the notice, comment, publication, or other requirements of the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.).

L.1993,c.139,s.38.

NJSA 58:10B-15. Responsibility for prior discharges, exemptions; penalties

39. a. Any person who, before the effective date of P.L.1993, c.139 (C.13:1K-9.6 et al.), has discharged a hazardous substance in violation of P.L.1976, c.141, and:

(1) has not been issued a directive to remove or arrange for the removal of the discharge pursuant to section 7 of P.L.1976, c.141 (C.58:10-23.11f);

(2) has not been assessed a civil penalty, a civil administrative penalty, or is not the subject of an action pursuant to the provisions of section 22 of P.L.1976, c.141 (C.58:10-23.11u);

(3) has not entered into an administrative consent order to clean up and remove the discharge; and

(4) has not been ordered by a court to clean up and remove the discharge, shall not be subject to a monetary penalty for the failure to report the discharge or for any civil violation of P.L.1976, c.141 (C.58:10-23.11 et seq.) or P.L.1977, c.74 (C.58:10A-1 et seq.) that resulted in the discharge if the person notifies the department of the discharge and enters into an administrative consent order or a memorandum of agreement with the department to remediate the discharge in accordance with the provisions of P.L.1976, c.141 (C.58:10-23.11 et seq.), or any rules or regulations adopted pursuant thereto, within one year of the effective date of P.L.1993, c.139 (C.13:1K-9.6 et al.). Any person who notifies the department of the discharge pursuant to this section shall be liable for all cleanup and removal costs as provided in section 8 of P.L.1976, c.141 (C.58:10-23.11g).

b. Notwithstanding the provisions of subsection a. of this subsection, any person who enters into a memorandum of agreement or administrative consent order pursuant to this section and fails to remediate the discharge in accordance with the memorandum of agreement or administrative consent order, shall be subject to all penalties for violations that occurred before the effective date of P.L.1993, c.139 (C.13:1K-9.6 et al.) as well as any penalties for subsequent violations.

c. The provisions of this section shall not apply to violations of a permit issued pursuant to P.L.1977, c.74 (C.58:10A-1 et seq.).

d. Any documents or information provided to the department pursuant to this section may not be used in a criminal investigation or criminal prosecution against the person providing the information or documents for those violations that occurred before the effective date of this act as long as the person remediates the discharge in conformance with the administrative consent order or memorandum of agreement entered into pursuant to subsection a. of this section.

L.1993,c.139,s.39.

NJSA 58:10B-16. Access to property to conduct remediation

40. a. (1) Any person who undertakes the remediation of suspected or actual contamination and who requires access to conduct such remediation on real or personal property that is not owned by that person, may enter upon the property to conduct the necessary remediation if there is an agreement, in writing, between the person conducting the remediation and the owner of the property authorizing the entry onto the property. If, after good faith efforts, the person undertaking the remediation and the property owner fail to reach an agreement concerning access to the property, the person undertaking the remediation shall seek an order from the Superior Court directing the property owner to grant reasonable access to the property and the court may proceed in the action in a summary manner.

(2) Such relief may include, singly or in combination:

(a) A temporary or permanent injunction;

(b) Assessment of the person undertaking the remediation for costs associated with any disruption in operations on the property;

(c) Assessment of the person undertaking the remediation for any costs to return the property to its condition before the commencement of the remediation;

(d) A requirement that the person undertaking the remediation indemnify the owner of the property for any damages, penalties or liabilities resulting from the remediation;

(e) A requirement that the person undertaking the remediation indemnify the owner of the property for any liability resulting from the entry of persons onto the property to perform the remediation.

b. The court shall promptly issue any access order sought pursuant to this section upon a showing that (1) a reasonable possibility exists that contamination from another site has migrated onto the owner's property, or (2) access to the property is reasonable and necessary to remediate contamination. The presence of an applicable department oversight document or a remediation obligation pursuant to law involving the property for which access is sought shall constitute prima facie evidence sufficient to support the issuance of an order.

Unless the court otherwise orders for notice and for good cause shown, an action for an access order shall not be joined with non-germane issues against the owner of the property for which access is sought or other person who may be liable for the contamination. Non-germane issues shall include, but not be limited to, issues concerning contribution, treble damages, or other damages involving either the contamination or the remediation.

The court may impose reasonable conditions as part of the access order, including without limitation, that the person undertaking the remediation take all reasonable measures to minimize the disruption to the property and the activities conducted there and return the property to its condition prior to the commencement of remediation.

c. The department may not impose or seek to impose any civil or civil administrative penalties upon any person for failure to perform a remediation on property not owned by that person within the time schedule required by regulation on property not owned by that person if (1) the failure to perform the remediation was the result of an inability of that person to enter upon real or personal property owned by another person, and (2) the person took all appropriate action pursuant to this section to obtain access to the property.

d. Nothing herein shall be construed as limiting the rights of the owner of the property against which the access order is issued to initiate a civil action to seek any damages available under law.

e. Nothing herein shall be construed as limiting the rights of the person conducting the remediation from initiating any subsequent civil action against the owner of the property upon which access was ordered.

L.1993,c.139,s.40.

NJSA 58:10B-17. Review of department decision concerning remediation

41. a. Any person conducting a remediation of a contaminated site may dispute a decision by the department concerning the remediation in accordance with the guidelines developed pursuant to subsection b. of this section. The disputed decision shall be reviewed, and a determination shall be made, by the next level of the department's management, and the review may continue, upon the request of the person seeking review, until the commissioner or his designee has issued a decision on the dispute. Each successive level of management review and the resulting determination on the dispute, shall occur within seven days of the department's receipt of the request for review.

b. Within 60 days of the effective date of P.L.1993, c.139, the department shall develop guidelines that establish a procedure through which a person conducting a remediation of a contaminated site may dispute a department decision concerning the remediation. Those guidelines shall include provisions for an expedited review procedure under which the commissioner, or his designee, shall issue a decision on the dispute within 21 calendar days of the date on which the request for that review was received.

L.1993,c.139,s.41.

NJSA 58:10B-17.1. Commencement of civil actions under environmental laws, limitations; definitions

5. a. (1) Except where a limitations provision expressly and specifically applies to actions commenced by the State or where a longer limitations period would otherwise apply, and subject to any statutory provisions or common law rules extending limitations periods, any civil action concerning the remediation of a contaminated site or the closure of a sanitary landfill facility commenced by the State pursuant to the State's environmental laws shall be commenced within three years next after the cause of action shall have accrued.

(2)For purposes of determining whether a civil action subject to the limitations periods specified in paragraph (1) of this subsection has been commenced within time, no cause of action shall be deemed to have accrued prior to January 1, 2002 or until the contaminated site is remediated or the sanitary landfill has been properly closed, whichever is later.

b. (1) Except where a limitations provision expressly and specifically applies to actions commenced by the State or where a longer limitations period would otherwise apply, and subject to any statutory provisions or common law rules extending limitations periods, any civil action concerning the payment of compensation for damage to, or loss of, natural resources due to the discharge of a hazardous substance, commenced by the State pursuant to the State's environmental laws, shall be commenced within five years and six months next after the cause of action shall have accrued.

(2)For purposes of determining whether a civil action subject to the limitations periods specified in paragraph (1) of this subsection has been commenced within time, no cause of action shall be deemed to have accrued prior to January 1, 2002 or until the completion of the remedial action for the entire contaminated site or the entire sanitary landfill facility, whichever is later.

c.As used in this section:

"State's Environmental Laws" means the "Spill Compensation and Control Act," P.L.1976, c.141 (C.58:10-23.11 et seq.), the "Water Pollution Control Act," P.L.1977, c.74 (C.58:10A-1 et seq.), P.L.1986, c.102 (C.58:10A-21 et seq.), the "Brownfield and Contaminated Site Remediation Act," P.L.1997, c.278 (C.58:10B-1.1 et al.), the "Industrial Site Recovery Act," P.L.1983, c.330 (C.13:1K-6 et al.), the "Solid Waste Management Act," P.L.1970, c.39 (C.13:1E-1 et seq.), the "Comprehensive Regulated Medical Waste Management Act," P.L.1989, c.34 (C.13:1E-48.1 et seq.), the "Major Hazardous Waste Facilities Siting Act," P.L.1981, c.279 (C.13:1E-49 et seq.), the "Sanitary Landfill Facility Closure and Contingency Fund Act," P.L.1981, c.306 (C.13:1E-100 et seq.), the "Regional Low-Level Radioactive Waste Disposal Facility Siting Act," P.L.1987, c.333 (C.13:1E-177 et seq.), or any other law or regulation by which the State may compel a person to perform remediation activities on contaminated property; and

"State" means the State, its political subdivisions, any office, department, division, bureau, board, commission or agency of the State or one of its political subdivisions, and any public authority or public agency, including, but not limited to, the New Jersey Transit Corporation.

d.Nothing in the amendatory provisions to this section adopted pursuant to P.L.2009, c.60 (C.58:10C-1 et al.) shall extend a limitations period that has expired prior to the date of enactment of P.L.2009, c.60 (C.58:10C-1 et al.).

L.2001, c.154, s.5; amended 2005, c.4, s.2; 2005, c.245; 2009, c.60, s.50; 2012, c.45, s.136.

NJSA 58:10B-18. Preparation, distribution of informational materials

42. The Division of Consumer Affairs in the Department of Law and Public Safety, in consultation with the Department of Environmental Protection and Energy, shall prepare, and the department shall distribute, for the cost of reproduction and postage, to any interested person, informational materials that set forth criteria that may be used to evaluate the qualifications of environmental consultants, environmental consulting firms, engineers, geologists or any other consultant, whose expertise or training may be required by a person to comply with the provisions of P.L.1986, c.102 (C.58:10A-21 et seq.), P.L.1983, c.330 (C.13:1K-6 et al.), P.L.1976, c.141 (C.58:10-23.11 et seq.), and P.L.1993, c.139 (C.13:1K-9.6 et al.) relating to the remediation of contaminated real property. The materials may describe the expertise or training necessary to address specific types of environmental cleanups, sites or contamination, the significance and availability of various types of professional liability insurance, issued by an entity licensed by the Department of Insurance to transact business in the State of New Jersey, the average cost of services and tests commonly performed by consultants, the significance of available accreditations or certifications, the ethics code applicable to any consultant, the references that may be requested and any other relevant factor that may be used to evaluate the qualifications and expertise of persons performing remediation services.

L.1993,c.139,s.42.

NJSA 58:10B-19. Implementation of interim response action

43. The owner or operator of an industrial establishment who has submitted a notice to the department pursuant to subsection a. of section 4 of P.L.1983, c.330 (C.13:1K-9), or any person who has discharged a hazardous substance or is liable for the remediation of that discharge pursuant to P.L.1976, c.141 (C.58:10-23.11 et seq.), or any person who has been directed to or has entered into an agreement with the department to remediate a discharge, may implement an interim response action prior to departmental approval of that action. The interim response action may be implemented when the expeditious temporary or partial remediation of a discharged hazardous substance or hazardous waste is necessary to contain or stabilize a discharge prior to implementation of an approved remedial action workplan in order to prevent, minimize, or mitigate damage to public health or safety or to the environment which may otherwise result from a discharge. The interim response action shall be implemented in compliance with the procedures and standards established by the department. The department may require submission of a notice of intent to implement an interim response action, what those actions will be, and may require, subsequent to completion of the interim response action, a report detailing the actions taken and a certification that the interim response action was implemented in accordance with all applicable laws and regulations. The department shall review these submissions to verify whether the interim response action was implemented in accordance with applicable laws and regulations. The department shall not require that additional remediation be undertaken at an area of concern subject to the interim response action except in instances when further remediation is necessary to bring that area of concern into compliance with the applicable remediation regulations.

The department may, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), adopt rules and regulations establishing a fee schedule, as necessary, reflecting the actual costs associated with the review of the interim response action and any implementation thereof.

L.1993,c.139,s.43; amended 1997, c.278, s.44.

NJSA 58:10B-20. Remediation Guarantee Fund

45. a. There is created in the Department of Environmental Protection a special, revolving fund to be known as the Remediation Guarantee Fund. The fund shall be credited with all remediation funding source surcharges imposed pursuant to section 33 of P.L.1993, c.139 (C.58:10B-11), all moneys appropriated to it by law, all moneys collected in subrogation actions to recover moneys expended from the fund, and all moneys earned from the investment of the moneys in the fund.

b.(Deleted by amendment, P.L.2009, c.60)

c. (1) Moneys in the fund shall be used by the Department of Environmental Protection to remediate, or contract for the remediation of, any real property for which a person was required to establish a remediation funding source pursuant to section 25 of P.L.1993, c.139 (C.58:10B-3) and where that person fails to conduct or properly conduct that remediation.

(2)Moneys in the fund may be disbursed by the department as technical assistance grants to nonprofit organizations to evaluate remediation methods and monitor site conditions at specific sites of public concern in the local community in accordance with rules and regulations adopted by the department.

d.Any moneys expended by the department from the fund pursuant to this section shall constitute a debt of (1) the person required to establish the remediation funding source who fails to conduct or properly conduct a remediation and funds are expended pursuant to subsection c. of this section, and (2) against the discharger. The debt shall constitute a lien on all property owned by the person required to establish the remediation funding source and against the discharger to the same extent and in the same manner as provided for liens in subsection f. of section 7 of P.L.1976, c.141 (C.58:10-23.11f).

e.Whenever the department expends moneys from the fund for a remediation, it shall have a cause of action to recover from the person required to establish the remediation funding source or from any other person liable for the discharge pursuant to section 8 of P.L.1976, c.141 (C.58:10-23.11g) triple the amount of moneys expended for the remediation.

f.Moneys in the fund may be appropriated to pay for the costs to administer the fund except that those appropriations may not exceed the amount of moneys deposited into the fund earned from the investment of moneys in the fund.

L.1993, c.139, s.45; amended 2009, c.60, s.51.

NJSA 58:10B-21. Investigation, determination of extent of contamination of aquifers

3. a. The Department of Environmental Protection shall investigate and determine the extent of contamination of every aquifer in this State. The department shall prioritize its investigations of aquifers giving the highest priority to those aquifers underlying urban or industrial areas that are known or suspected of having large areas of contamination. This information shall be updated periodically as necessary. The information derived from the investigation shall be made available to the public by entering it into the Department of Environmental Protection's existing geographic information system, by making this information available on the system, and by making copies of any maps and data available to the public. The functions required pursuant to this section shall be considered a site remediation obligation of the State. The department may charge a reasonable fee for the reproduction of the maps and data which fee shall reflect the cost of their reproduction.

b.Upon completion of an investigation of an aquifer by the department and upon the department's determination of the extent of contamination of an aquifer, a person performing a remediation may rely upon that information for that person's submission of information to the department in the performance of a remediation.

c.The entire cost of the investigation required pursuant to this section shall be borne by the department from appropriations made to it by the Legislature specifically for this purpose. The department may not fund any part of this investigation by the imposition of a fee or charge on any person performing a remediation or upon any person who is in need of a permit or approval from the department.

d.Nothing in this section shall be construed to require or obligate the department to reclassify the groundwater of any aquifer.

e.Any information concerning the contamination of an aquifer that is submitted to the department in digital form by a person performing a remediation, shall be entered into the geographical information system maintained by the department and shall be made available to the public within 90 days of the receipt of the information by the department.

L.1997,c.278,s.3; amended 2003,c.224,s.3.

NJSA 58:10B-22. Investigation, mapping of historic fill areas

4. a. Within 270 days of the effective date of P.L.2003, c.224, the Department of Environmental Protection shall investigate and map those areas of the State at which large areas of historic fill exist. The department shall prioritize its investigations of historic fill areas giving highest priority to those areas of the State that are known or suspected to contain historic fill. This information shall be updated periodically as necessary. The information derived from the investigation shall be made available to the public by entering it into the Department of Environmental Protection's existing geographic information system, by making this information available on the system, and by making copies of any maps and data available to the public. The functions required pursuant to this section shall be considered a site remediation obligation of the State. The department may charge a reasonable fee for the reproduction of the maps and data which fee shall reflect the cost of their reproduction.

b.Upon completion of an investigation of an area of historic fill by the department and upon the department's determination of the location of historic fill in an area, a person performing a remediation may rely upon that information for that person's performance of a remediation and selection of a remedial action pursuant to subsection h. of section 35 of P.L.1993, c.139 (C.58:10B-12).

c.The entire cost of investigation required pursuant to this section shall be borne by the department from appropriations made to it by the Legislature specifically for this purpose. The department may not fund any part of this investigation by the imposition of a fee or charge on any person performing a remediation or upon any person who is in need of a permit or approval from the department.

L.1997,c.278,s.4; amended 2003, c.224, s.4.

NJSA 58:10B-23. "Brownfield's Redevelopment Task Force"; duties

5. a. There is created the "Brownfields Redevelopment Task Force." The task force shall consist of seven representatives from State agencies and six public members. The State agency representatives shall be from each of the following State agencies: the Office of State Planning in the Department of Community Affairs, the New Jersey Redevelopment Authority in the Department of Community Affairs, the New Jersey Commerce and Economic Growth Commission, the Department of Agriculture, the Economic Development Authority in, but not of, the Department of the Treasury, the Department of Transportation, and the Site Remediation Program in the Department of Environmental Protection. The six public members shall be appointed by the Governor with the advice and consent of the Senate. The public members shall include to the extent practicable: a representative of commercial or residential development interests, a representative of the financial community, a representative of a public interest environmental organization, a representative of a neighborhood or community redevelopment organization, a representative of a labor or trade organization, and a representative of a regional planning entity.

The Office of State Planning shall provide staff to implement the functions and duties of the task force. The public members of the task force shall serve without compensation but may be reimbursed for actual expenses in the performance of their duties. The Governor shall select the chairperson of the task force.

b.The task force shall prepare and update an inventory of brownfield sites in the State. In preparing the inventory, priority shall be given to those areas of the State that receive assistance from the Urban Coordinating Council. To the extent practicable, the inventory shall include an assessment of the contaminants known or suspected to have been discharged or that are currently stored on the site, the extent of any remediation performed on the site, the site's proximity to transportation networks, and the availability of infrastructure to support the redevelopment of the site. The information gathered for the inventory shall, to the extent practicable, be made available to the public by entering it into the Department of Environmental Protection's existing geographic information system, by making this information available on the system and by making copies of any maps and data available to the public. The department may charge a reasonable fee for the reproduction of maps and data which fee shall reflect the cost of their reproduction.

c.In addition to its functions pursuant to subsection b. of this section, the task force shall:

(1)coordinate State policy on brownfields redevelopment, including incentives, regulatory programs, provision of infrastructure, and redevelopment planning assistance to local governments;

(2)use the inventory to prioritize sites based on their immediate economic development potential;

(3)prepare a plan of action to return these sites to productive economic use on an expedited basis;

(4)actively market sites on the inventory to prospective developers;

(5)use the inventory to provide a targeted environmental assessment of the sites, or of areas containing several brownfield sites, by the Department of Environmental Protection;

(6)consult with the Pinelands Commission concerning the remediation and redevelopment of brownfield sites located in the pinelands area as designated pursuant to section 10 of P.L.1979, c.111 (C.13:18A-11);

(7)evaluate the performance of current public incentives in encouraging the remediation and redevelopment of brownfields; and

(8)make recommendations to the Governor and the Legislature on means to better promote the redevelopment of brownfields, including the provision of necessary public infrastructure and methods to attract private investment in redevelopment.

d.As used in this section, "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 a contaminant.

L.1997,c.278,s.5; amended 1998,c.44,s.35; 2003,c.63.

NJSA 58:10B-23.1. Findings, declarations relative to redevelopment of brownfield sites

1.The Legislature finds and declares that the redevelopment of brownfield sites provides an alternative to the development of undeveloped land; that the redevelopment of brownfield sites would reinvigorate the surrounding areas, provide additional tax revenues to municipal government, and create jobs; and that it is vital that State, county and local governments concerned with the economic growth in the State have available an accurate and comprehensive list of known brownfield sites so that growth can be directed away from sensitive areas and into already developed areas or currently underutilized areas. The Legislature further finds and declares that landowners should be encouraged to list their property on the State's inventory of brownfield sites in order to enhance opportunities for reusing brownfield sites to the benefit of all redevelopment stakeholders and to promote a cleaner environment, a more robust economy, and a better quality of life.

L.2005,c.365,s.1.

NJSA 58:10B-23.2. Preparation of inventory of brownfield sites; definitions

2. a. In accordance with section 5 of P.L.1997, c.278 (C.58:10B-23), the Brownfields Redevelopment Task Force shall continue to prepare an inventory of brownfield sites in the State , and shall expedite its efforts to compile a State inventory of brownfield sites for listing on the New Jersey Brownfields Site Mart. Within 12 months after the effective date of this act, and annually thereafter, the Brownfields Redevelopment Task Force shall submit a progress report to the Senate Environment Committee and the Assembly Environment and Solid Waste Committee, summarizing the efforts employed during the past 12 months toward compilation of an inventory of known brownfield sites in the State.

b.The inventory of brownfield sites shall include a list of known brownfield sites in the State, and at least the following information for each site:

(1)the street address, lot and block number, municipality and county;

(2)the size of the site;

(3)the last known municipal zoning classification for the site;

(4)the name and address of the owner of record of the site;

(5)an assessment of the contaminants known or suspected by the Department of Environmental Protection to have been discharged at the site;

(6)the extent and status of any remediation known by the Department of Environmental Protection to have been performed on the site; and

(7)the planning area designation and any center designation as shown on the State Plan Policy Map prepared by the State Planning Commission pursuant to P.L.1985, c.398 (C.52:18A-196 et seq.).

c.As used in this section, "brownfield site" means any former or current commercial or industrial site that is currently vacant or underutilized and on which there has been, or is suspected to have been, a discharge of a contaminant and "New Jersey Brownfields Site Mart" means an interactive database accessible on the Internet that provides information to developers, property owners, and State and local planners and officials, about brownfield sites in order to facilitate the sale and redevelopment of those properties.

L.2005,c.365,s.2.

NJSA 58:10B-24. Duties of Department of Environmental Protection

25. The Department of Environmental Protection shall:

(1) Prepare materials for dissemination to the public that explain the environmental and health risks associated with site remediations in general and which are designed to assist local governments and the public in assessing the risks associated with particular site remediation projects;

(2) Serve as an informational resource for county improvement authorities who are involved in remediating and redeveloping contaminated redevelopment areas and for municipalities and residents of this State who may be impacted by the remediation or redevelopment of contaminated real property regardless of who is undertaking the remediation or redevelopment;

(3) Work with residents and municipalities to form neighborhood informational groups whose purpose is to research, understand and disseminate information in neighborhoods concerning the public health and environmental risks associated with site remediations and redevelopment, as well as the economic benefits to be gained; and

(4) Make recommendations to the Legislature and the Governor in order to improve the public understanding, perception and risk associated with site remediations in the State.

L.1997,c.278,s.25.

NJSA 58:10B-24.1. Written notification of contaminated site remediation

1. a. Prior to the initiation of the remedial action phase of the remediation of a contaminated site, any person who is responsible for conducting a remediation of the contaminated site, including the Department of Environmental Protection when it conducts a remediation of a contaminated site using public monies, shall provide written notification describing the activities that are to take place at the contaminated site to the clerk of the municipality and to the county health department and the local health agency wherein the site is located. The written notice shall include notice of the location of the contaminated site, including address and the lot and block number of the contaminated site. The written notice shall also inform the municipality, county health department, and local health agency that they may receive a copy of the remedial action workplan and any updates or status reports, and a copy of the site health and safety plan, from the responsible party, upon request. For any remediation of a contaminated site that will take longer than two years to complete, notification shall be provided every two years until remediation is complete.

b.Notice required pursuant to this section shall not be required when the remediation of a contaminated site is caused by a leaking residential underground storage tank used to store heating oil for on-site consumption in a one to four family residential building or an emergency response action.

L.2006, c.65, s.1; amended 2007, c.276, s.1.

NJSA 58:10B-24.2. Copy of remedial action plan, site health and safety plan to municipality

2.Upon request of a municipality, any person who is responsible for conducting a remediation of a contaminated site shall submit a copy of a remedial action workplan and any updates or status reports pursuant to the "Industrial Site Recovery Act," P.L.1983, c.330 (C.13:1K-6 et al.), the "Brownfield and Contaminated Site Remediation Act," P.L.1997, c.278 (C.58:10B-1.1 et al.), or the "Spill Compensation and Control Act," P.L.1976, c.141 (C.58:10-23.11 et seq.), and a copy of the site health and safety plan, to the clerk of the municipality wherein the contaminated site is located at the same time as the workplan is submitted to the Department of Environmental Protection. Upon request of a county health department or a local health agency, the person who is responsible for conducting a remediation of a contaminated site shall also submit a copy of the remedial action workplan and any updates or status reports, and a copy of the site health and safety plan, to the county health department or local health agency, respectively.

L.2006, c.65, s.2; amended 2007, c.276, s.2.

NJSA 58:10B-24.3. Notification to public of remediation of contaminated site; requirements

3. a. Any person who is responsible for conducting a remediation of a contaminated site shall be responsible for notifying the public of the remediation of the contaminated site pursuant to rules and regulations adopted by the Department of Environmental Protection pursuant to subsection b. of this section.

b.Within six months after the date of enactment of this act, the Department of Environmental Protection shall adopt, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), rules and regulations setting forth the notice requirements pursuant to subsection a. of this section. The rules and regulations to be adopted by the department pursuant to this section shall require any person who is responsible for conducting a remediation of a contaminated site to provide written notification to any local property owners and tenants who reside within 200 feet of the contaminated site. The notification shall summarize site conditions and provide information about actions being taken to remediate the site and may require written notification or the posting of a sign visible to the public which shall be located on the boundaries of the contaminated site.

L.2006, c.65, s.3.

NJSA 58:10B-24.4. Definitions relative to remediation of contaminated sites

4.For the purposes of P.L.2006, c.65 (C.58:10B-24.1 et seq.):

"Local Health Agency" means a "local health agency" as defined in section 3 of P.L.1966, c.36 (C.26:2F-3).

"Oversight Document" means any document the Department of Environmental Protection or a court issues to define the role of a person participating in the remediation of a contaminated site or is of concern, and may include, without limitation, an administrative order, administrative consent order, court order, memorandum of understanding, memorandum of agreement, or remediation agreement.

"Person who is responsible for conducting a Remediation" means any person who executes or is otherwise subject to an oversight document.

"Site Health and Safety Plan" means a plan designed to protect the health and safety of persons working on a contaminated site and required pursuant to the rules and regulations establishing the technical requirements for site remediation adopted pursuant to P.L.1993, c.139 (C.58:10B-1 et seq.).

L.2006, c.65, s.4; amended 2007, c.276, s.3.

NJSA 58:10B-24.5. Notification of master list of known hazardous discharge sites; DEP website

5.Within 30 days after the date of enactment of this act, the Department of Environmental Protection shall notify the governing body of each municipality in the State and each county health department and local health agency of the existence of the New Jersey master list of known hazardous discharge sites prepared pursuant to P.L.1982, c.202 (C.58:10-23.15 et seq.). The department shall notify the governing body of each municipality in the State and each county health department and local health agency that this list is also made available to the public on the Internet website maintained by the Department of Environmental Protection.

L.2006, c.65, s.5; amended 2007, c.276, s.4.

NJSA 58:10B-24.6. Definitions relative to procedures concerning soil contamination on school property [Effective July 10, 2010]

1.As used in this act:

"Charter School" means a school established pursuant to P.L.1995, c.426 (C.18A:36A-1 et seq.).

"Contamination" means any discharged hazardous substance as defined pursuant to section 3 of P.L.1976, c.141 (C.58:10-23.11b), hazardous waste as defined pursuant to section 1 of P.L.1976, c.99 (C.13:1E-38), or pollutant as defined pursuant to section 3 of P.L.1977, c.74 (C.58:10A-3).

"Licensed Site Remediation Professional" means an individual who is licensed by the Site Remediation Professional Licensing Board pursuant to section 7 of P.L.2009, c.60 (C.58:10C-7) or the Department of Environmental Protection pursuant to section 12 of P.L.2009, c.60 (C.58:10C-12).

"School" means any public or private school as defined in N.J.S.18A:1-1.

"School Property" means any area inside and outside of the school buildings controlled, managed, leased, or owned by the school or school district.

"Staff Member" means an employee of a school or school district, including administrators, teachers, and other persons regularly employed by a school or school district.

L.2009, c.175, s.1.

NJSA 58:10B-24.7. Provision of notice to parent, guardian, staff [Effective July 10, 2010]

2. a. Within 10 business days after the discovery of soil contamination on school property that has been found by the Department of Environmental Protection or a licensed site remediation professional to exceed the direct contact soil remediation standards for residential use adopted by the department pursuant to section 35 of P.L.1993, c.139 (C.58:10B-12), the local school board, the board of trustees of a charter school, or the principal or chief administrator of a private school, as appropriate, shall provide to each parent or guardian of a student enrolled at the school, and staff member of the school, notice of the soil contamination that includes: (1) a description of the soil contamination and the conditions under which a student or staff member may be exposed to the contamination; (2) a description and timetable of the steps that have been taken and will be taken to ensure that there is no contact by any student or staff member with the soil contamination; and (3) a description and timetable of the steps that have been taken and will be taken to remediate the soil contamination.

b.The local school board, the board of trustees of a charter school, or the principal or chief administrator of a private school, as appropriate, may provide the notice required by subsection a. of this section by: (1) written notice sent home with the student and provided to the staff member; (2) telephone call; (3) direct contact; or (4) electronic mail.

c.The local school board, the board of trustees of a charter school, or the principal or chief administrator of a private school, as appropriate, shall post a copy of the notice required pursuant to subsection a. of this section in a conspicuous location near the site of the soil contamination to notify any other users of the school grounds of the existence of the contamination.

L.2009, c.175, s.2.

NJSA 58:10B-25. Designation of State environmental agency under federal law

48. Pursuant to section 941 of the federal "Taxpayer Relief Act of 1997," Pub. L. 105-34, the Governor shall designate the Department of Environmental Protection as the appropriate State environmental agency to issue statements that an area is within a targeted area and that there has been a release, or threat of release, or disposal of any hazardous substance at or on that area. For the purposes of this section "targeted area" and "hazardous substance" shall have the meanings given to them in the federal act.

L.1997,c.278,s.48.

NJSA 58:10B-25.1. Guidelines for designation of brownfield development areas

7.The Department of Environmental Protection shall establish guidelines to establish a procedure for the designation of brownfield development areas. In establishing criteria for the establishment of a brownfield development area, the department shall require:

(1)that a brownfield development area includes at least two brownfield sites within a contiguous area;

(2)that the boundaries are consistent with the boundaries of a distinct neighborhood;

(3)broad community support for the establishment of a brownfield development area; and

(4)that the establishment of a brownfield development area will result in a benefit to the public health and safety, and the environment.

A brownfield development area shall be designated by the department, in writing, upon application by a person proposing to remediate a site or sites within the area, or upon the department's initiative.

The guidelines, and any subsequent revisions thereto, and a list of the brownfield development areas, and any subsequent revisions thereto, shall be published in the New Jersey Register. The adoption of the guidelines or of the revisions thereto, shall not be subject to the requirements of the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.).

L.2005,c.223,s.7.

NJSA 58:10B-25.2. Grant expenditures for remedial action constitutes debt of property owner to fund; lien

8.Any expenditure of grant moneys for a remedial action in a brownfield development area by a municipality, county, or redevelopment entity on property in which the municipality, county, or redevelopment entity does not have an ownership interest, shall constitute a debt of the property owner to the fund. The debt shall constitute a lien on the real property at which the remedial action is performed. The lien shall be in the amount of the grant awarded for the remedial action on that property. The lien shall attach when a notice of lien, incorporating the name of the property owner, a description of the property subject to the remedial action and an identification of the amount of the grant awarded from the fund, is duly filed with the county recording officer in the county in which the property is located. The lien filed pursuant to this section which affects the property subject to the remedial action shall create a lien with priority over all other claims or liens which are or have been filed against the property, except if the property comprises six dwelling units or less and is used exclusively for residential purposes, this notice of lien shall not affect any valid lien, right or interest in the property filed in accordance with established procedure prior to the filing of this notice of lien. A lien that is filed on real property pursuant to this section shall be removed upon transfer of ownership of the property to the municipality, county, or redevelopment entity that expended grant moneys for a remedial action on that property.

L.2005,c.223,s.8.

NJSA 58:10B-25.3. Pilot program for awarding grants to nonprofit organizations; conditions

9. a. The Department of Environmental Protection, in consultation with the New Jersey Economic Development Authority, shall develop a pilot program to award grants from the Hazardous Discharge Site Remediation Fund established pursuant to section 26 of P.L.1993, c.139 (C.58:10B-4) to nonprofit organizations described in section 501(c)(3) of the federal Internal Revenue Code, 26 U.S.C. s.501(c)(3), that are exempt from taxation pursuant to section 501(a) of the federal Internal Revenue Code, 26 U.S.C. s.501(a), for the preliminary assessment, site investigation, and remedial investigation of real property that has been contaminated or is suspected of being contaminated by the discharge of a hazardous substance. All of the limitations and conditions for the award of financial assistance and grants applicable to municipalities pursuant to the provisions of the "Brownfield and Contaminated Site Remediation Act," P.L.1997, c.278 (C.58:10B-1.1 et al.) shall apply to the award of grants to a nonprofit organization pursuant to this section. The total amount awarded pursuant to this pilot program shall not exceed $5,000,000.

b.Prior to March 1 of each year, the Department of Environmental Protection shall prepare and transmit to the members of the Senate Environment Committee and the Assembly Environment and Solid Waste Committee, or their successors, an annual report that provides a description of the projects for which grants have been awarded, the grant recipients for each project, the owner of the property being remediated, the amount of each grant, and the location of the property being remediated.

L.2005,c.223,s.9.

NJSA 58:10B-26. Definitions relative to redevelopment agreements

34.As used in sections 34 through 39 of P.L.1997, c.278 (C.58:10B-26 through 58:10B-31):

"Contamination" or "Contaminant" means any discharged hazardous substance as defined pursuant to section 3 of P.L.1976, c.141 (C.58:10-23.11b), hazardous waste as defined pursuant to section 1 of P.L.1976, c.99 (C.13:1E-38), or pollutant as defined pursuant to section 3 of P.L.1977, c.74 (C.58:10A-3).

"Developer" means any person that enters or proposes to enter into a redevelopment agreement with the State pursuant to the provisions of section 35 of P.L.1997, c.278 (C.58:10B-27).

"Director" means the Director of the Division of Taxation in the Department of the Treasury.

"Licensed Site Remediation Professional" means an individual who is licensed by the Site Remediation Professional Licensing Board pursuant to section 7 of P.L.2009, c.60 (C.58:10C-7) or the Department of Environmental Protection pursuant to section 12 of P.L.2009, c.60 (C.58:10C-12).

"No Further Action Letter" means a written determination by the Department of Environmental Protection that based upon an evaluation of the historical use of a particular site, or of an area of concern or areas of concern at that site, as applicable, and any other investigation or action the department deems necessary, there are no discharged contaminants present at the site, at the area of concern or areas of concern, at any other site to which a discharge originating at the site has migrated, or that any discharged contaminants present at the site or that have migrated from the site have been remediated in accordance with applicable remediation regulations.

"Project" or "Redevelopment Project" means a specific work or improvement, including lands, buildings, improvements, real and personal property or any interest therein, including lands under water, riparian rights, space rights and air rights, acquired, owned, developed or redeveloped, constructed, reconstructed, rehabilitated or improved, undertaken by a developer within an area of land whereon a contaminated site is located, under a redevelopment agreement with the State pursuant to section 35 of P.L.1997, c.278 (C.58:10B-27).

"Redevelopment Agreement" means an agreement between the State and a developer under which the developer agrees to perform any work or undertaking necessary for the remediation of the contaminated site located at the site of the redevelopment project, and for the clearance, development or redevelopment, construction or rehabilitation of any structure or improvement of commercial, industrial or public structures or improvements within an area of land whereon a contaminated site is located pursuant to section 35 of P.L.1997, c.278 (C.58:10B-27), and the State agrees that the developer shall be eligible for the reimbursement of up to 75% of the costs of remediation of the contaminated site from the fund established pursuant to section 38 of P.L.1997, c.278 (C.58:10B-30) as authorized pursuant to section 36 of P.L.1997, c.278 (C.58:10B-28).

"Remediation" or "Remediate" means all necessary actions to investigate and clean up or respond to any known, suspected, or threatened discharge of contaminants, including, as necessary, the preliminary assessment, site investigation, remedial investigation, and remedial action, as those terms are defined in section 23 of P.L.1993, c.139 (C.58:10B-1).

"Remediation Costs" means all reasonable costs associated with the remediation of a contaminated site except that "remediation costs" shall not include any costs incurred in financing the remediation.

"Response Action Outcome" means a written determination by a licensed site remediation professional that the contaminated site was remediated in accordance with all applicable statutes and regulations, and based upon an evaluation of the historical use of the site, or of any area of concern at that site, as applicable, and any other investigation or action the department deems necessary, there are no contaminants present at the site, or at any area of concern, at any other site to which a discharge originating at the site has migrated, or that any contaminants present at the site or that have migrated from the site have been remediated in accordance with applicable remediation regulations, and all applicable permits and authorizations have been obtained.

L.1997, c.278, s.34; amended 2003, c.224, s.5; 2009, c.60, s.52.

NJSA 58:10B-27. Terms and conditions of agreements

35. a. The provisions of any other law, or rule or regulation adopted pursuant thereto, to the contrary notwithstanding, any developer may enter into a redevelopment agreement with the State pursuant to the provisions of this section. The State may not enter into a redevelopment agreement with a developer who is liable, pursuant to paragraph (1) of subsection c. of section 8 of P.L.1976, c.141 (C.58:10-23.11g), for the contamination at the site proposed to be in the redevelopment agreement.

The decision whether or not to enter into a redevelopment agreement is solely within the discretion of the Chief Executive Officer and Secretary of the Commerce and Economic Growth Commission and the State Treasurer and both must agree to enter into the redevelopment agreement. Nothing in P.L.1997, c.278 (C.58:10B-1.1 et al.) may be construed to compel the Secretary and the State Treasurer to enter into any redevelopment agreement.

The Chief Executive Officer and Secretary of the Commerce and Economic Growth Commission, in consultation with the State Treasurer shall negotiate the terms and conditions of any redevelopment agreement on behalf of the State. The redevelopment agreement shall specify the amount of the reimbursement to be awarded the developer, the frequency of payments and the length of time in which that reimbursement shall be granted. In no event shall the amount of the reimbursement, when taken together with the property tax exemption received pursuant to the "Environmental Opportunity Zone Act," P.L.1995, c.413 (C.54:4-3.151), less any in lieu of tax payments made pursuant to that act, or any other State, local, or federal tax incentive or grant to remediate a site, exceed 75%of the total cost of the remediation.

The Secretary and the State Treasurer may only enter into a redevelopment agreement if they make a finding that the State tax revenues to be realized from the redevelopment project will be in excess of the amount necessary to reimburse the developer. This finding may be made by an estimation based upon the professional judgment of the Secretary and the State Treasurer.

The percentage of each payment to be made to the developer pursuant to the redevelopment agreement shall be conditioned on the occupancy rate of the residential dwelling units, buildings, or other work areas located on the property. The redevelopment agreement shall provide for the payments made in order to reimburse the developer to be in the same percentages as the occupancy rate at the site except that upon the attainment of a 90% occupancy rate, the developer shall be entitled to the entire amount of each payment toward the reimbursement as set forth in the redevelopment agreement. If the redevelopment of the property is performed in phases, then the redevelopment agreement shall provide for the payments to reimburse the developer to commence prior to the completion of the redevelopment at the entire site. The redevelopment agreement shall provide that payments to reimburse the developer be in the same percentages as the occupancy rate of that portion of the site for which the developer has received a no further action letter, and on which new residential construction is completed or a place of business is located, that has generated new tax revenues. The redevelopment agreement shall provide for the frequency of the director's finding of the occupancy rate during the payment schedule. If a redevelopment project is completed in phases, where a portion of the property subject to the redevelopment agreement is generating new tax revenues, then the redevelopment agreement shall provide for the frequency of the director's finding of the occupancy rate for each phase of the redevelopment.

b.In deciding whether or not to enter into a redevelopment agreement and in negotiating a redevelopment agreement with a developer, the Secretary shall consider the following factors:

(1)the economic feasibility of the redevelopment project;

(2)the extent of economic and related social distress in the municipality and the area to be affected by the redevelopment project;

(3)the degree to which the redevelopment project will advance State, regional and local development and planning strategies;

(4)the likelihood that the redevelopment project shall, upon completion, be capable of generating new tax revenue in an amount in excess of the amount necessary to reimburse the developer for the remediation costs incurred as provided in the redevelopment agreement;

(5)the relationship of the redevelopment project to a comprehensive local development strategy, including other major projects undertaken within the municipality;

(6)the need of the redevelopment agreement to the viability of the redevelopment project; and

(7)the degree to which the redevelopment project enhances and promotes job creation and economic development.

L.1997,c.278,s.35; amended 2002, c.87, s.1; 2003, c.224, s.6.

NJSA 58:10B-27.1. State may enter into certain redevelopment agreements at certain landfill sites

5. a. The provisions of any other law, or any rule or regulation adopted pursuant thereto to the contrary notwithstanding, the State may enter into a redevelopment agreement pursuant to section 35 of P.L.1997, c.278 (C.58:10B-27) for the redevelopment project at the site of the following landfills: (1) the Avon Sanitary Landfill; (2) the Kingsland Park Sanitary Landfill; (3) the Lyndhurst Sanitary Landfill; and (4) the Rutherford Sanitary Landfill, in which the State may agree to reimburse the developer for the closure and remediation costs associated with the proper closure and remediation of the area of land whereon the Avon Sanitary Landfill, the Kingsland Park Sanitary Landfill, the Lyndhurst Sanitary Landfill, and the Rutherford Sanitary Landfill are located.

b.As used in this section, "closure and remediation costs" means all reasonable costs associated with the closure and remediation of the Avon Sanitary Landfill, the Kingsland Park Sanitary Landfill, the Lyndhurst Sanitary Landfill, and the Rutherford Sanitary Landfill, except that "closure and remediation costs" shall not include any costs incurred in financing the remediation and closure of a particular landfill; and "closure" means all activities associated with the design, purchase, construction or maintenance of all measures required by the Department of Environmental Protection, pursuant to law, in order to prevent, minimize or monitor pollution or health hazards resulting from the Avon Sanitary Landfill, the Kingsland Park Sanitary Landfill, the Lyndhurst Sanitary Landfill, and the Rutherford Sanitary Landfill subsequent to the termination of operations at these landfills, or at any portion thereof, including, but not necessarily limited to, the placement of final earthen or vegetative cover, the installation of methane gas vents or monitors and leachate monitoring wells or collection systems, and long-term operations and maintenance, at the site of these landfills.

L.2001,c.398,s.5.

NJSA 58:10B-27.2. Entry of State into redevelopment agreement, certain circumstances

1. a. The provisions of any other law, or rule or regulation adopted pursuant thereto, to the contrary notwithstanding, the State may enter into a redevelopment agreement pursuant to sections 35 and 36 of P.L.1997, c. 278 (C.58:10B-27 and 58:10B-28) for a redevelopment project that was commenced prior to the effective date of sections 34 through 39 of P.L.1997, c.278 (C.58:10B-26 through 58:10B-31) in which the State may agree to reimburse a developer for 75% of remediation costs incurred subsequent to entering into the redevelopment agreement, provided that the Chief Executive Officer and Secretary of the Commerce and Economic Growth Commission, in consultation with the State Treasurer, finds that:

(1)the remediation that has not yet been performed on the subject real property is necessary to ensure that the public health and safety and the environment are protected; and

(2) (a) the cost or extent of remediation was unanticipated at the time the redevelopment project was commenced; (b) changes to the rules and regulations governing site remediation were adopted after the redevelopment project was commenced; (c) principles of fairness and consistency indicate that the reimbursement of remediation costs provided by P.L.1997, c.278 should be made available to the developer who agreed to remediate and redevelop a brownfield prior to the enactment of P.L.1997, c.278; (d) an estimate of the cost of the remediation to be performed subsequent to entry into the redevelopment agreement as approved by the Department of Environmental Protection exceeds $10 million; (e) the subject real property is situated within a Planning Area 1 as designated in the State Development and Redevelopment Plan; and (f) a phase of the redevelopment project has not been commenced.

b.A developer that enters into a redevelopment agreement pursuant to this section shall be eligible for reimbursement of remediation costs pursuant to sections 36 and 37 of P.L.1997, c.278 (C.58:10B-28 and 58:10B-29), provided that:

(1)in estimating the amount of State taxes that are anticipated to be derived from a redevelopment project the director shall only consider tax revenues generated subsequent to the date of the redevelopment agreement from a phase of the redevelopment project that has not generated tax revenues prior to January 1, 2006; and

(2)a developer has entered into a memorandum of agreement or other oversight document with the Commissioner of Environmental Protection for the remediation of a contaminated site located on the site of the redevelopment project and the developer is in compliance with the memorandum of agreement or oversight document.

c.Nothing in this section shall require that a no further action letter be obtained by a developer for remediation of groundwater beneath the subject real property prior to reimbursement of the remediation costs, provided that the developer has completed any capital construction or infrastructure required for the remediation of groundwater on the site.

L.2005,c.360.

NJSA 58:10B-28. Eligibility for reimbursement; certification

36. a. The provisions of any other law, or rule or regulation adopted pursuant thereto, to the contrary notwithstanding, any developer that enters into a redevelopment agreement pursuant to section 35 of P.L.1997, c.278 (C.58:10B-27), may be eligible for reimbursement of up to 75% of the costs of the remediation of the subject real property pursuant to the provisions of this section upon the commencement of a business operation, or the completion of the construction of one or more new residences, within a redevelopment project.

b.To be eligible for reimbursement of the costs of remediation, a developer shall submit an application, in writing, to the director for review and certification of the reimbursement. The director shall review the request for the reimbursement upon receipt of an application therefor, and shall approve or deny the application for certification on a timely basis. The director shall also make a finding of the occupancy rate of the property subject to the redevelopment agreement in the frequency set forth in the redevelopment agreement as provided in section 35 of P.L.1997, c.278 (C.58:10B-27).

The director shall certify a developer to be eligible for the reimbursement if the director finds that:

(1)residential construction is complete, or a place of business is located, in the area subject to the redevelopment agreement that has generated new tax revenues;

(2)the developer had (i) entered into a memorandum of agreement, or other oversight document, with the Commissioner of Environmental Protection, after the developer entered into the redevelopment agreement, for the remediation of contamination located on the site of the redevelopment project pursuant to section 37 of P.L.1997, c.278 (C.58:10B-29) and the developer is in compliance with the memorandum of agreement, or (ii) complied with the requirements set forth in subsection b. of section 30 of P.L.2009, c.60 (C.58:10B-1.3); and

(3)the costs of the remediation were actually and reasonably incurred. In making this finding the director may consult with the Department of Environmental Protection.

c.When filing an application for certification for a reimbursement pursuant to this section, the developer shall submit to the director a certification of the total remediation costs incurred by the developer for the remediation of the subject property located at the site of the redevelopment project as provided in the redevelopment agreement, information concerning the occupancy rate of the buildings or other work areas located on the property subject to the redevelopment agreement, and such other information as the director deems necessary in order to make the certifications and findings pursuant to this section.

L.1997, c.278, s.36; amended 2002, c.87, s.2; 2003, c.224, s.7; 2009, c.60, s.53.

NJSA 58:10B-29. Qualification for certification of reimbursement for remediation costs; memorandum of agreement

37. a. To qualify for the certification of reimbursement of the remediation costs authorized pursuant to section 36 of P.L.1997, c.278 (C.58:10B-28), a developer shall: (1) enter into a memorandum of agreement, or other oversight document with the Commissioner of Environmental Protection; or (2) comply with the requirements set forth in subsection b. of section 30 of P.L.2009, c.60 (C.58:10B-1.3), for the remediation of the site of the redevelopment project.

b.Under the memorandum of agreement, or other oversight document, the developer shall agree to perform and complete any remediation activity as may be required by the Department of Environmental Protection to ensure the remediation is conducted pursuant to the regulations adopted by the Department of Environmental Protection pursuant to P.L.1993, c.139 (C.58:10B-1 et al.).

c.After the developer has entered into a memorandum of agreement, or other oversight document with the Commissioner of Environmental Protection, or after the developer has notified the Department of Environmental Protection of the name and license information of the licensed site remediation professional who has been hired to perform the remediation as required pursuant to subsection b. of section 30 of P.L.2009, c.60 (C.58:10B-1.3), the commissioner shall submit a copy thereof to the developer, the clerk of the municipality in which the subject property is located, the Division of Business Assistance, Marketing and International Trade in the New Jersey Economic Development Authority, and the director.

L.1997, c.278, s.37; amended 2003, c.224, s.8; 2009, c.60, s.54.

NJSA 58:10B-30. Brownfield Site Reimbursement Fund

38. a. There is created in the Department of the Treasury a special fund to be known as the Brownfield Site Reimbursement Fund. Moneys in the fund shall be dedicated to the purpose of reimbursing a developer who enters into a redevelopment agreement pursuant to section 35 of P.L.1997, c.278 (C.58:10B-27) and is certified for reimbursement pursuant to section 36 of P.L.1997, c.278 (C.58:10B-28). A special account within the fund shall be created for each developer upon approval of a certification pursuant to section 36 of P.L.1997, c.278 (C.58:10B-28). The Legislature shall annually appropriate the entire balance of the fund for the purposes of reimbursement of remediation costs as provided in section 39 of P.L.1997, c.278 (C.58:10B-31).

b.The fund shall be credited with an amount from the General Fund, determined sufficient by the Chief Executive Officer and Secretary of the Commerce and Economic Growth Commission, to provide the negotiated reimbursement to the developer. Moneys credited to the fund shall be an amount that equals the percent of the remediation costs expected to be reimbursed pursuant to the redevelopment agreement. In estimating the amount of new State taxes that is anticipated to be derived from a redevelopment project pursuant to section 35 of P.L.1997, c.278 (C.58:10B-27), the Chief Executive Officer and Secretary of the Commerce and Economic Growth Commission and the State Treasurer shall consider taxes from the following: the Corporation Business Tax Act (1945), P.L.1945, c.162 (C.54:10A-1 et seq.), "The Savings Institution Tax Act," P.L.1973, c.31 (C.54:10D-1 et seq.), the tax imposed on marine insurance companies pursuant to R.S.54:16-1 et seq., the tax imposed on fire insurance companies pursuant to R.S.54:17-4 et al., the tax imposed on insurers generally, pursuant to P.L.1945, c.132 (C.54:18A-1 et seq.), the public utility franchise tax, public utilities gross receipts tax and public utility excise tax imposed pursuant to P.L.1940, c.4, and P.L.1940, c.5 (C.54:30A-16 et seq. and C.54:30A-49 et seq.), the tax derived from net profits from business, a distributive share of partnership income, or a prorata share of S corporation income under the "New Jersey Gross Income Tax Act," N.J.S.54A:1-1 et seq., the tax derived from a business at the site of a redevelopment project that is required to collect the tax pursuant to the "Sales and Use Tax Act," P.L.1966, c.30 (C.54:32B-1 et seq.), the tax imposed pursuant to P.L.1966, c.30 (C.54:32B-1 et seq.) from the purchase of materials used for the remediation, the construction of new structures, or the construction of new residences at the site of a redevelopment project, or the portion of the fee imposed pursuant to section 3 of P.L.1968, c.49 (C.46:15-7) derived from the sale of real property at the site of the redevelopment project and paid to the State Treasurer for use by the State, that is not credited to the "Shore Protection Fund" or the "Neighborhood Preservation Nonlapsing Revolving Fund" pursuant to section 4 of P.L.1968, c.49 (C.46:15-8). For the purpose of computing the sales and use tax on the purchase of materials used for the remediation, the construction of new structures, or the construction of new residences at the site of a redevelopment project, it shall be presumed by the Director of the Division of Taxation, in lieu of an exact accounting from the developer, suppliers, contractors, subcontractors and other parties connected with the project, that the tax equals one percent of the developer's contract price for remediation and improvements or such other percentage, not to exceed three percent, that may be agreed to by the director upon the presentation of clear and convincing evidence that the tax on materials is greater than one percent of the contract price for the remediation and improvements.

L.1997,c.278,s.38; amended 2002, c.87, s.3; 2003, c.224, s.9.

NJSA 58:10B-31. Reimbursement of remediation costs

39. a. The State Treasurer shall reimburse the developer the amount of the remediation costs agreed upon in the redevelopment agreement, and as provided in sections 35 and 36 of P.L.1997, c.278 (C.58:10B-27 and C.58:10B-28) upon issuance of the certification by the director pursuant to section 36 of P.L.1997, c.278 (C.58:10B-28). The developer shall be entitled to periodic payments from the fund in an amount, in the frequency, and over the time period as provided in the redevelopment agreement. Notwithstanding any other provision of sections 34 through 39 of P.L.1997, c.278 (C.58:10B-26 through C.58:10B-31), the State Treasurer may not reimburse the developer any amount of the remediation costs from the fund until the State Treasurer is satisfied that the anticipated tax revenues from the redevelopment project have been realized by the State in an amount sufficient to pay for the cost of the reimbursements.

b.A developer shall submit to the director updated remediation costs actually incurred by the developer for the remediation of the contaminated property located at the site of the redevelopment project as provided in the redevelopment agreement. The reimbursement authorized pursuant to this section shall continue until such time as the aggregate dollar amount of the agreed upon reimbursement. To remain entitled to the reimbursement authorized pursuant to this section, the developer shall perform and complete all remediation activities as may be required pursuant to the memorandum of agreement or other oversight agreement entered into with the Commissioner of Environmental Protection pursuant to section 37 of P.L.1997, c.278 (C.58:10B-29) or as may be required by the licensed site remediation professional in order to issue a response action outcome for the site. The Department of Environmental Protection may review the remediation costs incurred by the developer to determine if they are reasonable.

Reimbursable remediation costs shall include costs that are incurred in preparing the area of land whereon the contaminated site is located for remediation and may include costs of dynamic compaction of soil necessary for the remediation.

L.1997, c.278, s.39; amended 2001, c.398, s.4; 2005, c.360, s.2; 2009, c.60, s.55.

NJAC Title 5, Chapter 85. State Planning
NJAC 5:85-1.1 Title and citation

This chapter shall be known and may be cited as N.J.A.C. 5:85, State Planning Rules.

HISTORY:
Amended by R.2003 d.336, effective August 18, 2003.
See: 35 New Jersey Register 304(a), 35 New Jersey Register 1990(a), 35 New Jersey Register 3819(a).
Amended the N.J.A.C. reference.

NJAC 5:85-1.2 Purpose and authority

(a) This chapter is adopted by the State Planning Commission pursuant to N.J.S.A. 52:18A-203 in order to establish an orderly and efficient process for the preparation, adoption, and implementation of the State Development and Redevelopment Plan. In support thereof, it is determined that in order to fulfill the purposes and to satisfy the requirements of the State Planning Act, it is necessary and appropriate that:

1. The cross-acceptance, plan endorsement, and map amendment processes be structured so as to establish vertically and horizontally integrated and consistent local, county, regional and State plans;

2. The State Planning Commission take all reasonable steps to ensure municipal, county and public participation in cross-acceptance and in plan endorsement; and

3. The detail and substance of the Preliminary State Development and Redevelopment Plan be enhanced by early and direct county, municipal and public participation.

(b) State Planning Commission action pursuant to these rules represent determinations of overall consistency with the State Development and Redevelopment Plan. These actions do not serve to either "validate" or "invalidate" a specific code, ordinance, administrative rule, regulation or other plan implementation mechanism.

HISTORY:
Amended by R.1997 d.7, effective January 6, 1997.
See: 28 New Jersey Register 4084(a), 29 New Jersey Register 150(b).
Deleted (a)2, relating to a review and comment process; and recodified (a)3 through (a)5 as (a)2 through (a)4.
Amended by R.2004 d.186, effective May 17, 2004.
See: 35 New Jersey Register 4001(a), 36 New Jersey Register 2490(c).
In (a), rewrote 1 and 2, deleted 4; added (b).

NJAC 5:85-1.3 Applicability

This chapter shall apply to all activities and actions of municipal and county governments, the State Planning Commission, regional and State Agencies, negotiating entities, and petitioners concerning the State Development and Redevelopment Plan.

HISTORY:
Amended by R.1997 d.7, effective January 6, 1997.
See: 28 New Jersey Register 4084(a), 29 New Jersey Register 150(b).
Amended by R.2004 d.186, effective May 17, 2004.
See: 35 New Jersey Register 4001(a), 36 New Jersey Register 2490(c).
Inserted "regional and" preceding "State Agencies", and substituted "negotiating entities, and petitioners concerning" for "and any negotiating entity designated by the Commission in the preparation, review and implementation of".

NJAC 5:85-1.4 Definitions

The following terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise:

"Action Plan" means an outline of the steps necessary for a petitioner to achieve consistency with the State Development and Redevelopment Plan and endorsement by the State Planning Commission. An Action Plan will provide timelines for the petitioner and relevant State agencies to complete required tasks; the relevant State agencies to review and evaluate petitioner submissions; and the relevant State agencies to provide or make available benefits that shall accrue to petitioner upon endorsement of the petition, as well as any conditions imposed on petitioner for obtaining said benefits.

"Center" means an efficient and compact form of development having one or more mixed-use cores and residential neighborhoods and green spaces. Center designations are based on the area, population, density, and employment of the center being considered and features of the surrounding areas. Centers can range in scale from very large, an Urban Center, to the smallest, a Hamlet. Centers range in scale in the following order: Urban, Regional, Town, Village, and Hamlet. Descriptions and criteria for designating each type of center are located in the New Jersey State Development and Redevelopment Plan.

"Center boundary" means the line between a center and its environs. The boundary is defined by physical features, such as rivers, roads, or changes in the pattern of development or by open space, environmentally sensitive features, or farmland, or combinations thereof.

"Center designation" or "designated center" means a center that has been officially recognized as such by the State Planning Commission. Center designations only may occur as part of the plan endorsement process.

"Certificate of eligibility" is a document issued by the Executive Director indicating that a petitioner has taken necessary preliminary steps to prepare for plan endorsement, entered into a Memorandum of Understanding and Action Plan with the State Planning Commission and has agreed to develop, adopt and implement plans that are consistent with the State Plan.

"Community visioning" is a process of involving the public, community and stakeholders in developing a vision statement to guide the future of a municipality, county, or regional entity.

"Comprehensive plan" means a document, including maps, to guide all aspects of development and preservation in a coordinated way for a given jurisdiction. It includes an inventory and analysis of current conditions in and around the area and plans and policies to guide future actions.

"Consistency" or "consistent" means that the State Planning Commission determines that a municipal, county, regional, neighborhood or special resource area plan, or an amendment thereto, submitted for plan endorsement pursuantto N.J.A.C. 5:85-7 and endorsed by the State Planning Commission pursuant to N.J.A.C. 5:85-7.19, or a map amendment submitted for approval pursuant to N.J.A.C. 5:85-8 and endorsed by the State Planning Commission pursuant to N.J.A.C. 5:85-8.6 is the same as or has the same effect as the State Development and Redevelopment Plan.

"Core" means a pedestrian-oriented area of commercial and civic uses serving the surrounding municipality or a center, generally including housing and access to public transportation.

"County" means any board, department, division, office, agency or other subdivision of the county duly authorized by the county governing body, or executive, as appropriate, to carry out the requirements of this chapter.

"Critical environmental site" (CES) means an area generally greater than two acres and less than a square mile depicted on the State Plan Policy Map, which includes one or more critical environmentally sensitive features located either outside of a planning area classified as environmentally sensitive by the State Development and Redevelopment Plan or within designated centers located within such planning areas.

"Cross-Acceptance Manual" means a document adopted by the State Planning Commission pursuant to N.J.A.C. 5:85-2.3 for the purpose of guiding negotiating entities through the cross-acceptance process. The manual shall contain, at a minimum, a sample work program, a draft schedule, a sample negotiation agenda, and an outline for the Cross-Acceptance Report.

"Cross-acceptance process" or "cross-acceptance" means a process of comparing planning policies among government levels with the purpose of obtaining consistency between municipal, county, regional, and State plans and the State Development and Redevelopment Plan.

"Cross-Acceptance Report" means a written statement submitted by the negotiating entity to the State Planning Commission describing the findings, recommendations, objections, and other information as set forth in the Cross-Acceptance Manual. The Cross-Acceptance Report can also be submitted by a municipality pursuant to N.J.A.C. 5:85-3.6 or by a regional entity or State agency pursuant to N.J.A.C. 5:85-3.7.

"Days" means calendar days unless otherwise specified.

"Demonstrated interest" means a particularized interest that an individual or an entity can specifically identify having in the action the State Planning Commission may take on a petition filed pursuant to N.J.A.C. 5:85-7 or 8 as a result of specified potential impact that action may have on the individual or entity's right to use, acquire or enjoy property.

"Display ad" means a notification of a public meeting or hearing in one or more newspapers, other than a legal advertisement, to be conducted by the Office of Smart Growth or the State Planning Commission pursuant to these rules. For public meeting or hearing, it shall contain the date of the meeting or hearing, the time of the meeting or hearing, the location of the meeting or hearing and the subject matter of such public meeting or hearing. The advertisements must be of at least four inches in width in a newspaper of general circulation in the jurisdictions to which the meeting, hearing or petition pertains.

"Draft Final State Development and Redevelopment Plan" means a draft of the Final State Development and Redevelopment Plan that has been released for public comment by the State Planning Commission following the cross acceptance process. The draft Final State Development and Redevelopment Plan is the same document as the Interim State Development and Redevelopment Plan that is also referenced in the State Planning Act.

"Endorsed plan" means a municipal, county, regional, neighborhood or special resource area plan, which has been submitted for consideration in a petition to the State Planning Commission, which petition has been approved as a result of a finding by the State Planning Commission that the plan is consistent with the State Development and Redevelopment Plan, pursuant to N.J.A.C. 5:85-7.

"Environs" means parts of the municipality or municipalities outside the center boundaries.

"Environmentally sensitive features" means natural attributes or characteristics whose function as part of a natural system or landscape is considered integral or important. For example, a coastal dune and beach system is an environmentally sensitive feature as is an area of critical habitat or a stream corridor. Environmentally sensitive features of Statewide or regional significance may also be part of the criteria for identification of a Special Resource Area.

"Executive Director" means the Executive Director of the Office of Smart Growth.

"Final State Development and Redevelopment Plan" means the plan that the State Planning Commission adopts after releasing and receiving comments on the draft Final State Development and Redevelopment Plan which upon adoption becomes the official State Development and Redevelopment Plan that sets forth Statewide planning policies and serves as the official blueprint for development and redevelopment in New Jersey.

"Goal" or "goals" means a desired state of affairs to which planned effort is directed. The goals of the State Development and Redevelopment Plan are general statements of values derived from the State Planning Act of 1986 and public comments.

"Historic and cultural site" (HCS) means a site of generally less then a square mile depicted on the State Plan Policy Map, which includes features or characteristics that have inherent cultural, historic or aesthetic significance of local, regional or Statewide importance. Such features include, but are not limited to, historic sites and districts, greenways and trails, dedicated open space, pre-historic and archaeological sites, scenic vistas and corridors, natural landscapes of exceptional aesthetic or cultural value.

"Impact assessment" means the assessment of the economic, environmental, infrastructure, community life and intergovernmental coordination of the draft Final State Development and Redevelopment Plan required by the State Planning Act and N.J.A.C. 5:85-4.7.

"Infrastructure Needs Assessment" means the assessment of present and prospective conditions, needs and costs with regard to State, county, and municipal capital facilities, including water, sewerage, transportation, solid waste, drainage, flood protection, shore protection and related capital facilities that is required to be part of the State Development and Redevelopment Plan by the State Planning Act and N.J.A.C. 5:85-5.

"Map amendments" means the changes in the State Plan Policy Map initiated by the State Planning Commission in response to new data or that result from approval by the State Planning Commission of a petition for a map amendment pursuant to N.J.A.C. 5:85-8 or approval by the State Planning Commission pursuant to N.J.A.C. 5:85-7 of a petition for plan endorsement, which includes a proposed map amendment.

"Master Plan" means a comprehensive plan for the development of a county or municipality used to guide development and development regulations. Master Plans are adopted by municipal and county planning boards pursuant to the Municipal Land Use Law (N.J.S.A. 40:55D-28) and the County Planning Act (N.J.S.A. 40:27-1 et seq.), respectively.

"Memorandum of Understanding" means a contract between the State Planning Commission and a petitioner to enter into an Action Plan in order for the petitioner to take the steps needed to achieve consistency with the State Plan, in collaboration with the Office of Smart Growth and the relevant State agencies.

"Minor map amendment" means an amendment to the State Plan Policy Map which does not exceed 100 acres and for which additional notice is required pursuant to N.J.A.C. 5:85-1.7(b)7 and (g)4.

"Municipality" means any board, department, division, office, agency, or other subdivision of the municipality duly authorized by the municipal governing body, or executive, as appropriate, to carry out the requirements of this chapter.

"Natural system" means regularly interacting and interdependent components of air, water, land and biological resources.

"Neighborhood Plan" means a plan submitted by an Urban Center municipality for plan endorsement that pertains specifically to a specific section of the municipality that has been identified as part of an overall strategy by the municipality for eventual endorsement of the municipal master plan and supporting plan elements for the entire municipality.

"Negotiating entity" or "negotiating entities" means a county, or where a county has declined to participate in the cross-acceptance process, some other entity designated by the State Planning Commission to compare and negotiate the Preliminary State Development and Redevelopment Plan.

"Negotiation" means the public dialogue between negotiating entities and the State Planning Commission to arrive at a Statement of Agreement and Disagreements.

"Negotiation session" means a session during which the duly authorized representatives of the State Planning Commission and a negotiating entity and any municipality that has submitted a Cross-Acceptance Report, engage in a dialogue with the purpose of attaining the highest degree of agreement on identified issues.

"Node" means a concentration of facilities and activities, which are not organized in a compact form.

"Office of Smart Growth" means the Office in the Department of Community Affairs that staffs the State Planning Commission and provides planning and technical assistance as requested. The Office of Smart Growth serves the same functions as, and is the successor to, the Office of State Planning (N.J.S.A. 52:18A-201). The Office of Smart Growth website is www.njsmartgrowth.com.

"Period of Cross-Acceptance" means that period of time extending from date of release of the Preliminary State Development and Redevelopment Plan by the Commission to the release of the Statement of Agreements and Disagreements.

"Petition" means either a formal request for plan endorsement or an amendment to an endorsed plan submitted by a municipality, a county, a regional planning entity or any grouping thereof to the State Planning Commission for review for consistency with State Development and Redevelopment Plan pursuant to N.J.A.C. 5:85-7 or a formal request by an entity other than a municipality, county or regional agency for a proposed map amendment in an area that is not subject of an endorsed plan pursuant to N.J.A.C. 5:85-8.

"Petition to amend" means a petition to amend either an endorsed plan, a Planning and Implementation Agreement or a prior center designation.

"Petitioner" means a municipality, county, regional or other relevant planning entity, or any grouping thereof, seeking plan endorsement or an amendment to an endorsed plan pursuant to N.J.A.C. 5:85-7 or an entity other than a municipality, county or regional planning entity or any group thereof seeking an amendment to the State Plan Policy Map for an area that is not subject of an endorsed plan pursuant to N.J.A.C. 5:85-8.

"Plan" means the legally adopted planning documents of a governmental entity submitted for endorsement, as well as the various plan elements, planning studies, and documentation used to prepare or implement it.

"Plan Endorsement Advisory Committee" or "Advisory Committee" means a citizen-based committee appointed by the mayor or governing body to serve as liaison with the State, county, regional agencies and local officials throughout the process, to increase public awareness of and participation in the plan endorsement process, and to guide and assist the plan endorsement process, including participating in meetings at the Office of Smart Growth between the petitioner and the relevant State agencies.

"Plan Endorsement Guidelines" means a document issued by the State Planning Commission for the purpose of guiding petitioners through the plan endorsement process.

"Plan endorsement process" or "plan endorsement" or "endorsement" means the process undertaken by a municipality, county, regional or other relevant planning entity or any grouping thereof, to petition the State Planning Commission for a determination of consistency of the submitted plan with the State Development and Redevelopment Plan and wherein upon successful completion of requirements outlined in an Action Plan and Memorandum of Understanding, the State Planning Commission shall make a determination that the submitted plan is consistent with the State Development and Redevelopment Plan, taking into account pertinent State agency statutes, rules, regulations, policies, and programs, and approve a petition for plan endorsement, wherein said plan shall then be considered endorsed.

"Plan implementation mechanisms" means zoning and land use ordinances, maps and schedules, natural resource inventories, capital improvement programs and any other relevant means used to implement plans.

"Planning area" means an area of greater than one square mile that shares a common set of conditions, such as population density, infrastructure systems, level of development, or environmental sensitivity. The State Development and Redevelopment Plan sets forth planning policies that guide growth in the context of those conditions.

"Planning and Implementation Agreement" means an agreement between the State Planning Commission and the petitioner that outlines how the petitioner proposes to achieve the goals and visions described in the endorsed plan and a schedule therefore and specifies benefits, such as technical and financial assistance that will be provided by State agencies to help advance the implementation of the plan.

"Policy" means a general rule for action focused on a specific issue, derived from more general goals and strategies. Some policies can be implemented directly through institutional procedures or regulations, others require the establishment of more specific and extensive plans or programs.

"Preliminary State Development and Redevelopment Plan" means the document, including maps, appendices, and other material included by reference approved by the State Planning Commission as the basis for comparing and negotiating with the negotiating entities and the State Planning Commission.

"Prior center designations" or "previously designated centers" means a center designated pursuant to the State Planning Rules and in effect prior to May 17, 2004 that was not designated as part of an endorsed plan.

"Regional" means an area encompassing land in more than one municipality, a county, or more than one county, that is bound together by shared characteristics and regional systems.

"Regional agency" and "regional entity" means an agency which performs planning for land development, infrastructure or capital investment planning for a region.

"Self-assessment" or "self-assessment report" means the report prepared by a petitioner to provide an overview and analysis of existing conditions of the petitioner, as well a review of existing plans, and an assessment of the consistency of a petitioner's plans and implementation mechanisms with the goals, policies and strategies of the State Development and Redevelopment Plan.

"Special Resource Area" means an area or region, and defined in the State Development and Redevelopment Plan that are worthy of special protection due to unique characteristics or resources of Statewide importance, which are essential to the sustained wellbeing and function of its own region and other regions or systems - environmental, economic, and social - and to the quality of life for future generations.

"State agency" means an agency of the State government, including authorities and cabinet departments, commissions, authorities and State colleges among others.

"State agency benefit" means any benefit, such as technical assistance, financial assistance, priority consideration for grant awards, special grant funding, or other programs, provided by a relevant State agency, that is afforded to any petitioner granted a State Planning Commission determination of consistency of its petition for plan endorsement or issued a Certificate of Eligibility by the Executive Director.

"State Development and Redevelopment Plan" or "State Plan" means the plan prepared and adopted pursuant to the State Planning Act that sets forth Statewide planning policies and serves as the official blueprint for development and redevelopment in New Jersey. It is an expression of Statewide intent and articulates the planning policies that will be needed to reach the goals of the State Planning Act. Local application of these policies occurs through the Plan Endorsement process.

"State Opportunities and Constraints Assessment" means a preliminary written assessment of existing land use patterns, infrastructure availability and natural resources provided by the Office of Smart Growth to a petitioner that has submitted a municipal self-assessment report, based on input from relevant State agencies, and used to inform community visioning.

"State Plan Policy Map" means the geographic application of the State Development and Redevelopment Plan goals, strategies, and policies and is comprised of series of maps corresponding to the 1:24,000 scale United States Geological Survey (U.S.G.S.) 7.5 minutes topographic quadrangle maps. The State Plan Policy Map serves as the official map of the State Development and Redevelopment Plan. Each quadrangle map includes at a minimum planning areas, including changes made in the plan endorsement process, endorsed plans, designated centers, cores, and nodes as well as other areas including critical environmental sites, historic and cultural sites, parks and natural areas, military installations, the certification signature, and appropriate initialing of revisions, if any, by the Secretary of the Commission, and the text for each planning area and its planning policies.

"State Planning Act" means the enabling legislation for establishing the State Planning Commission, creating the State Plan and delineating the duties of the State Planning Office, as codified at N.J.S.A. 52:18A-196 et seq.

"State Planning Commission" or "Commission" means the commission established under the State Planning Act, which has primary jurisdiction for the administration of developing and implementing the State Plan, coordinating planning among State agencies and other powers and duties as delineated in the State Planning Act.

"Statement of Agreements and Disagreements" means the document approved by the State Planning Commission pursuant to N.J.A.C. 5:85-4.6, which details the highest degree of agreement that is generated during the negotiation of plans between each negotiating entity and the State Planning Commission's negotiating committee.

"Strategy" means a general course of action, which links more general goals of the State Development and Redevelopment Plan with more specific policies.

"Urban complex" means an Urban Center and two or more municipalities within the surrounding Metropolitan Planning Area that exhibit a strong inter-municipal relationship, based on socio-economic factors and public facilities and services, that is defined, integrated and coordinated through a Strategic Revitalization Plan. Urban complexes are nominated jointly by a county or counties and the affected municipalities and are coterminous with municipal boundaries but not necessarily with county boundaries.

"Urban complex strategic revitalization plan" means a Strategic Revitalization Plan that may substitute for individual municipal Strategic Revitalization Plans within their jurisdiction and that:
1. Describes the relationships that exist within the urban complex;
2. Identifies issues affecting the future growth and viability of the urban complex;
3. Assesses the strengths and weaknesses of the urban complex; and
4. Specifies strategies for regional and cultural cooperation and action.

"Written notice" means notice that is provided either electronically or by first class mail.

HISTORY:
Amended by R.1990 d.336, effective July 2, 1990.
See: 22 N.J.R. 621(c), 22 N.J.R. 2033(a).

Definitions of negotiation session and State Planning Advisory Committee added.
Amended by R.1992 d.253, effective June 15, 1992.
See: 24 N.J.R. 1241(a), 24 N.J.R. 2287(a).

Revised definitions "compatibility" and "consistency".
Amended by R.1997 d.7, effective January 6, 1997.
See: 28 N.J.R. 4084(a), 29 N.J.R. 150(b).

Changed "Final cross-acceptance report" to "Cross-acceptance report"; inserted "Interim State Development and Redevelopment Plan" and "Preliminary State Development and Redevelopment Plan"; deleted "Functional state agency", "Goal", "Objective", "Policy", "Preliminary Plan Map", "Standard", "State Planning Advisory Committee(s)", "Strategy", and "Tier"; and amended several definitions.
Amended by R.2002 d.12, effective January 7, 2002.
See: 33 N.J.R. 1511(a), 34 N.J.R. 285(a).

Rewrote the section.
Amended by R.2003 d.336, effective August 18, 2003.
See: 35 N.J.R. 304(a), 35 N.J.R. 1990(a), 35 N.J.R 3819(a).

In "Interim State Development and Redevelopment Plan", inserted "or Interim Plan" preceding "means the document; deleted "Preliminary Plan Map" and "State Planning Advisory Committee(s)"; in "Office of State Planning website" amended the website; in "Consistency", "Endorsed plan", "Municipal Report", "Negotiation session" and "Period of Cross-Acceptance" amended the N.J.A.C. references.
Amended by R.2004 d.186, effective May 17, 2004.
See: 35 N.J.R. 4001(a), 36 N.J.R. 2490(c).

Rewrote the section.
Amended by R.2009 d.61, effective April 20, 2009.
See: 40 N.J.R. 3350(b), 41 N.J.R. 1733(a).

Deleted definitions "Advanced petition", "Initial petition", "Municipal Strategic Revitalization Plan", "Plan Endorsement Contract", "Regional strategic plan", "Strategic revitalization plan", and "Urban complex"; added definitions "Action Plan", "Certificate of eligibility", "Community visioning", "Executive Director", "Memorandum of Understanding", "Neighborhood Plan", "Petition to amend", "Plan Endorsement Advisory Committee", "Plan implementation mechanisms", "Self-assessment", "Special Resource Area", "Special Resource Area Plan", "State agency benefit", "State Opportunities and Constraints Assessment", "State Planning Act", and "State Planning Commission"; in definition "Center boundary", inserted ", or combinations thereof"; rewrote definitions "Consistency", "Endorsed plan", and "Plan endorsement process"; in definition "Critical environmental site", inserted "critical"; in definition "Map amendments", deleted "initial or advanced" preceding "plan" and inserted a comma following "endorsement"; in definition "Master Plan", inserted "municipal and county" and ", respectively"; in definition "Office of Smart Growth", inserted ", and is the successor to,"; in definition "Petition", deleted "initial or advanced" preceding "plan endorsement" and "submitted" preceding "to the State", inserted "submitted", and substituted "planning entity" for "agency"; in definition "Petitioner", substituted "or regional planning entity," for ", regional agency", ", seeking" for "seeking initial or advanced", and " planning entity or any group thereof" for "agency"; in definition "Plan", substituted "documents" for "document"; in definition "Planning and Implementation Agreement", inserted "benefits, such as" and substituted "provided by" for "available from"; in definition "Prior center designations", inserted "and", substituted "May 17, 2004" for "the adoption of these rules", and deleted "the" following "part of"; and in definition "State Development and Redevelopment Plan", inserted "or 'State Plan' ", and inserted the last two sentences.
Amended by R.2009 d.286, effective September 21, 2009.
See: 41 N.J.R. 1551(a), 41 N.J.R. 3407(b).

In definition "Critical environmental site", inserted "greater than two acres and"; in definitions "Petitioner" and "Plan endorsement process", substituted "county, regional or other relevant" for "county or regional"; deleted definition "Special Resource Area Plan"; and added definition "Urban complex".

NJAC 5:85-1.5 Technical assistance from the Office of Smart Growth

(a) The Office of Smart Growth shall provide technical assistance to negotiating entities and petitioners as may be needed to fulfill their responsibilities under these rules.

(b) Technical assistance may be in the form of a Cross-Acceptance Manual and Plan Endorsement Guidelines issued by the State Planning Commission, advice and consultation on plan comparisons, assistance with population and employment projections and distribution, and other assistance within the resources of the Office of Smart Growth.

HISTORY:
New Rule, R.1997 d.7, effective January 6, 1997.
See: 28 New Jersey Register 4084(a), 29 New Jersey Register 150(b).
Amended by R.2004 d.186, effective May 17, 2004.
See: 35 New Jersey Register 4001(a), 36 New Jersey Register 2490(c).
Rewrote the section.

NJAC 5:85-1.6 Public participation

(a) Public participation shall include written or oral comments concerning cross-acceptance, plan endorsement, and map amendments presented before or during the public comment period at the meetings of the State Planning Commission or any committee thereof, and at any public hearings conducted pursuant to these rules. All applicable meetings shall be carried out in accordance with the Open Public Meetings Act, N.J.S.A. 10:4-6 et seq., unless otherwise specified.

(b) Any member of the public can request notice of meetings or hearings, subsequent documents concerning a particular matter pending before the State Planning Commission, and any action taken by the State Planning Commission or the Office of Smart Growth pursuant to these rules by registering with the Office of Smart Growth in the following manner:

1. Filing a written request for such notice and document specifying subject matter requested; and

2. Providing name, organization, if any, address, phone and fax numbers, and email address.

(c) Cross-acceptance is intended to be an open and thorough dialog that involves not only governments but the public at-large as well. The State Planning Commission considers an inclusionary approach to cross-acceptance critical to the success of the process. To that end, the State Planning Commission and each negotiating entity shall provide meaningful opportunities for public participation during cross-acceptance.

At a minimum, the public may participate in cross-acceptance through the following means:

1. Public comment pursuant to N.J.A.C. 5:85-2.2(a) as to what changes, if any, are appropriate in the State Development and Redevelopment Plan prior to the preparation and release of a Preliminary State Development and Redevelopment Plan;

2. Public comment at negotiation sessions conducted pursuant to N.J.A.C. 5:85-4;

3. Submission of written comments to the State Planning Commission at any time up to 30 days after the last public hearing conducted pursuant to N.J.A.C. 5:85-5.2;

4. Written communication with negotiating entities or municipal or county officials involved in cross-acceptance;

5. Comments presented at meetings of the various committees of the State Planning Commission as they relate to the work of those committees; and

6. Participation in advisory committees.

(d) At a minimum, the public may participate in plan endorsement through the following means:

1. Public comment to the Commission and its committees when a petitioner is seeking approval of a petition for plan endorsement, a petition to amend or a revocation of plan endorsement or of a designated center pursuant to N.J.A.C. 5:85-7;

2. Written communication with petitioners seeking plan endorsement; and

3. Submission of written comments to the Executive Director at any time up to 30 days after any public hearing on a petition for plan endorsement, a petition to amend or a revocation of plan endorsement or of a designated center.

(e) The State Plan Policy Map is the geographic application of the State Development and Redevelopment Plan goals, strategies, and policies. Petitions to amend the State Plan Policy Map seek to demonstrate that the proposed change better reflects the goals, strategies, and policies of the State Development and Redevelopment Plan. At a minimum, the public may participate in map amendments through the following means:

1. Public comment to the State Planning Commission and its committees when the State Planning Commission is proposing a map amendment pursuant to N.J.A.C. 5:85-8.3(a) or when a petitioner is seeking a map amendment pursuant to N.J.A.C. 5:85-8.3(c);

2. Written communication with petitioners seeking map amendments; and

3. Submission of written comments to the Executive Director of the Office of Smart Growth at any time up to 30 days after any public hearing conducted pursuant to N.J.A.C. 5:85-8.5(e).

HISTORY:
New Rule, R.1997 d.7, effective January 6, 1997.
See: 28 N.J.R. 4084(a), 29 N.J.R. 150(b).

Amended by R.2003 d.336, effective August 18, 2003.
See: 35 N.J.R. 304(a), 35 N.J.R. 1990(a), 35 N.J.R. 3819(a).

Amended N.J.A.C. references.
Amended by R.2004 d.186, effective May 17, 2004.
See: 35 N.J.R. 4001(a), 36 N.J.R. 2490(c).

Rewrote the section.
Amended by R.2009 d.61, effective April 20, 2009.
See: 40 N.J.R. 3350(b), 41 N.J.R. 1733(a).
In (a), deleted "or hearings" following "meetings", and inserted "unless otherwise specified"; in the introductory paragraph of (d), deleted the first two sentences; and rewrote (d)1 and (d)3.

NJAC 5:85-1.7 Public notice requirements, form, content and timing

(a) At least 60 days prior to the release of approval of a Preliminary State Development and Redevelopment Plan pursuant to N.J.A.C. 5:85-2, the Office of Smart Growth shall seek comments:

1. By posting information concerning the intention to approve a Preliminary State Development and Redevelopment Plan on the Office of Smart Growth website;

2. By providing written notice to all persons or organizations who have registered with the Office of Smart Growth to receive public notice concerning the preparation and adoption of the State Development and Redevelopment Plan pursuant to N.J.A.C. 5:85-1.6(b); and

3. By providing written notice to all mayors, county executives and administrators and all municipal and county clerks, boards of chosen freeholders and planning boards and appropriate regional, State and Federal agencies.

(b) Public notice requirements for the State Planning Commission or the Executive Director pursuant to N.J.A.C. 5:85-3, 4, 7 and 8 are as follows:

1. All meetings shall satisfy notice requirements of the Open Public Meeting Act, N.J.S.A. 10:4-6 et seq.

2. All hearings shall satisfy timing and content requirements as provided for in (j) below.

3. Public notice of meetings or hearings shall be provided as follows:

i. By posting on the Office of Smart Growth website;

ii. By publishing a display ad or legal advertisement in at least one newspaper of general circulation in the area in which the meeting or hearing will be held;

iii. By written notice to all persons or organizations who have registered with the Office of Smart Growth to receive public notice of meetings or hearings concerning a particular matter pursuant to N.J.A.C. 5:85-1.6(b);

iv. By written notice to appropriate regional, State and Federal agencies;

v. If the public notice concerns a meeting regarding cross-acceptance pursuant to N.J.A.C. 5:85-3 or 4:

(1) By written notice to the negotiating entity;

(2) By written notice to the mayor, governing body, clerk and planning board of any municipality which is a subject of the negotiations; and

(3) By written notice to the board of chosen freeholders, county executive or administrator, if any, county clerk and county planning board if the county is not the negotiating entity;

vi. If the public notice concerns a meeting or a hearing regarding a petition filed pursuant to N.J.A.C. 5:85-7 or 8:

(1) By written notice to the petitioner;

(2) By written notice to the mayor, clerk and planning board of any municipality in which the property that is the subject of the petition is located if the municipality is not the petitioner; and

(3) By written notice to the board of chosen freeholders, county executive or administrator, if any, county clerk and county planning board of any county in which property that is subject of the petition is located if the county is not the petitioner; and

vii. If the public notice concerns a minor map amendment proposed by the State Planning Commission, by providing written notice to all owners of property that is subject of the petition and all owners of property located within 200 feet of the property that is subject of the petition.

(c) In addition to the public notice provisions provided in (b) above, notice of hearings on the draft Final State Development and Redevelopment Plan and the draft Infrastructure Needs Assessment held pursuant to N.J.A.C. 5:85-5.2(a) shall be placed at least 30 days in advance of the hearing in display ads in at least two newspapers which circulate in the area served by the hearing and provided with at least 30 days notice to the governing body and planning board of each county and municipality in the area served by the hearing.

(d) Public notice requirements for a municipality or county pursuant to N.J.A.C. 5:85-3 and 4 are as follows:

1. All meetings shall satisfy notice requirements of the Open Public Meeting Act, N.J.S.A. 10:4-6 et seq.

2. All hearings shall satisfy timing and content requirements as provided for in (j) below.

3. In addition, all public notice of meetings or hearings shall be further provided as follows:

i. By publishing a standard legal advertisement in each official newspaper of the municipality or county required to give public notice;

ii. By written notice to the mayor, clerk and planning board of any municipality that adjoins the municipality or county required to provide the public notice;

iii. By written notice to the board of chosen freeholders, county executive or administrator, if any, county clerk and county planning board of any county that adjoins the municipality or county required to provide the public notice;

iv. By written notice to the Executive Director;

v. Municipalities shall provide written notice to the municipal clerk to disseminate to the municipal planning board, board of education, environmental commission, if any, and each authority, board, commission, committee and department involved in economic development, land use, infrastructure or resource protection in that municipalities; and

vi. Counties shall provide written notice to the county clerk to disseminate to the county planning board and each authority, board, commission, and department involved in economic development, land use, infrastructure or resource protection in that county and to the mayor, governing body, clerk and planning board of each municipality in that county.

(e) All public notices required to be given by a negotiating entity pursuant to N.J.A.C. 5:85-3 or 4 shall be provided as follows when the negotiating entity is not a county:

1. By publishing a standard legal advertisement in each official newspaper of the county or counties for which the negotiating entity is conducting cross-acceptance;

2. By notifying the mayor, clerk and planning board of any municipality that adjoins the county or counties for which the negotiating entity is conducting cross-acceptance;

3. By notifying the board of chosen freeholders, county executive or administrator, if any, county clerk and county planning board of any county that adjoins the county or counties for which the negotiating entity is conducting cross-acceptance;

4. By notifying the State Planning Commission;

5. By notifying the Executive Director of the Office of Smart Growth;

6. By providing written notice to the mayor, governing body, clerk and planning board, environmental commission, if any and each authority, board, commission, committee and department involved in economic development, land use, infrastructure or resource protection in the municipality for which the negotiating entity is conducting cross-acceptance; and

7. By providing written notice to the board of chosen freeholders, county executive or administrator, if any, county clerk, county planning board and each authority, board, commission, committee and department involved in economic development, land use, infrastructure or resource protection in the county for which the negotiating entity is conducting cross-acceptance.

(f) Public notice requirements for a petitioner for a plan endorsement pursuant to N.J.A.C. 5:85-7 are as follows:

1. All meetings shall satisfy notice requirements of the Open Public Meeting Act, N.J.S.A. 10:4-6 et seq.;

2. All hearings shall satisfy timing and content requirements as provided for in (j) below;

3. All visioning workshops conducted pursuant to N.J.A.C. 5:85-7.11 shall be noticed at least 10 days in advance using the methods described in N.J.A.C. 5:85-7.11(a);

4. Publication of meetings or hearings shall be performed as follows:

i. For municipal or county petitioners, by publishing a standard legal advertisement in each official newspaper of each municipality or county for which the petitioner is seeking plan endorsement, respectively;

ii. For regional petitioners, by publishing a standard legal advertisement in each official newspaper of each county within the region for which the petitioner is seeking plan endorsement, or if said region is within a single county, then by publishing a standard legal advertisement in each official newspaper of said county and each municipality within said region; or

iii. For special resource area petitioners, by publishing a standard legal advertisement in each official newspaper of each county within the special resource area for which the petitioner is seeking plan endorsement or if said special resource area is within a single county, then by publishing a standard legal advertisement in said county and each official newspaper of each municipality within said special resource area;

5. Additional public notice to local governmental entities and neighboring municipalities or counties shall be performed as follows:

i. For municipal petitioners, by written notice to the mayor, governing body, planning board, and municipal clerk for dissemination to the environmental commission (if any) and each authority, board, commission, committee and department involved in economic development, land use, infrastructure or resource protection in the municipality for which plan endorsement is being sought and to the municipal clerk of adjoining municipalities for dissemination to the mayor, governing body and planning board in any municipality adjoining the municipal petitioner; or

ii. For county, regional and special resource area petitioners, by written notice to the board of chosen freeholders, county executive or administrator, if any, and county planning board and to the county clerk of any county that adjoins the county, region or special resource area for dissemination to the mayor, governing body and each authority, board, commission and department involved in economic development, land use, infrastructure or resource protection in that county; and

6. Petitioners shall provide written notice to the Executive Director of public meetings or hearings held pursuant to N.J.A.C. 5:85-7.

(g) Any entity petitioning for a map amendment pursuant to N.J.A.C. 5:85-8, shall provide public notice as follows:

1. By publishing a standard legal advertisement in each official newspaper of each municipality and county in which the property that is the subject of the petition is located;

2. By providing written notice to the mayor, clerk and planning board of each municipality in which the property that is the subject of the petition is located and of each municipality which adjoins the property that is the subject of the petition;

3. By providing written notice to the board of chosen freeholders, county executive or administrator, if any, county clerk and county planning board of any county in which the property that is the subject of the petition is located and of each county which adjoins the property that is the subject of the petition;

4. If the petition is for a minor map amendment, by providing written notice to all owners of property that is subject of the petition and all owners of property within 200 feet of the property that is subject of the petition;

5. By notifying the State Planning Commission; and

6. By notifying the Executive Director of the Office of Smart Growth.

(h) Within five days of the Office of Smart Growth being informed that notice has been provided pursuant to (d) through (g) above; receiving a completed petition pursuant to N.J.A.C. 5:85-7 or 8; the issuance of the Executive Director's monitoring report pursuant to N.J.A.C. 5:85-7.23, or the issuance of the Executive Director's report on a petition submitted pursuant to N.J.A.C. 5:85-8, the Office of Smart Growth shall:

1. Post information concerning said notice, petition, or report on the Office of Smart Growth website;

2. Provide written notice concerning said notice, petition, or report to all persons or organizations who have registered with the Office of Smart Growth to receive public notice concerning a particular matter pursuant to N.J.A.C. 5:85-1.6(b); and

3. Provide written notice concerning said notice, petition, or report to appropriate regional, State and Federal agencies.

(i) Within 45 days of the State Planning Commission adopting the Final State Development and Redevelopment Plan pursuant to N.J.A.C. 5:85-5 or acting on a petition pursuant to N.J.A.C. 5:85-7 or 8, the Office of Smart Growth shall provide notice of that action:

1. By posting information concerning said notice on the Office of Smart Growth website;

2. By providing written notice to all persons or organizations who have registered with the Office of Smart Growth to receive public notice concerning a particular matter pursuant to N.J.A.C. 5:85-1.6(b);

3. By providing written public notice to appropriate regional, State and Federal agencies;

4. By placing notice of the action by the State Planning Commission in the New Jersey Register;

5. If the public notice concerns adoption of the Final State Development and Redevelopment Plan, by providing written notice to all mayors, county executives and administrators and all municipal and county clerks, governing bodies and planning boards; and

6. If the public notice concerns action on a petition pursuant to N.J.A.C. 5:85-7 or 8:

i. By providing written notice to the mayor, clerk and planning board of any municipality in which property that is the subject of the petition is located if the municipality is not the petitioner; and
ii. By providing written notice to the board of chosen freeholders, county executive or administrator, if any, county clerk and county planning board of any county in which property that is subject of the petition is located if the county is not the petitioner.

(j) All public notice of hearings provided pursuant to (b) and (d) through (g) above shall be provided at least 10 days in advance of the hearings and shall provide the time, date, location, and purpose of the hearing. The public notice shall also specify that formal action may be taken and the public can comment orally at the hearing or submit written comments within a specified time period.

HISTORY:
New Rule, R.2004 d.186, effective May 17, 2004.
See: 35 N.J.R. 4001(a), 36 N.J.R. 2490(c).
Amended by R.2009 d.61, effective April 20, 2009.
See: 40 N.J.R. 3350(b), 41 N.J.R. 1733(a).

Section was "Public notice requirements". Rewrote (b), (d), and (f); in the introductory paragraph of (h), inserted the first occurrence of "the Office of Smart Growth", updated the N.J.A.C. references, and deleted "; or the issuance of a monitoring report by the Executive Director of the Office of Smart Growth pursuant to N.J.A.C. 5:85-7.12 or 7.13" preceding ", the Office of Smart Growth shall:"; and in (j), deleted "meetings or" preceding "hearings" twice and preceding "hearing" twice, and deleted the last sentence.
Amended by R.2009 d.286, effective September 21, 2009.
See: 41 N.J.R. 1551(a), 41 N.J.R. 3407(b).

In the introductory paragraph of (b), substituted ", 7 and 8" for "and 7"; in (d)3v, inserted a comma following "any", deleted a comma following "committee" and inserted "and" at the end; recodified (d)3vii as part of (d)3vi; in (d)3vi, substituted "and to" for "; and vii. To"; in (e)6, substituted "the negotiating entity is conducting cross-acceptance" for "plan endorsement is being sought"; in (f)1, inserted a semicolon at the end; in (f)2, substituted a semicolon for a period at the end; added new (f)3; recodified former (f)3 through (f)5 as (f)4 through (f)6; rewrote (f)5ii; in the introductory paragraph of (h), inserted "7 or" and "the issuance of the Executive Director's monitoring report pursuant to N.J.A.C. 5:85-7.23,"; and in (j), inserted "formal action may be taken and".

NJAC 5:85-1.8 Severability clause

If any section, subsection, provision, clause, or portion of this chapter is adjudged unconstitutional or invalid by a court of competent jurisdiction, the remaining portions of this chapter shall not be affected thereby.

HISTORY:
New Rule, R.2009 d.61, effective April 20, 2009.
See: 40 N.J.R. 3350(b), 41 N.J.R. 1733(a).

NJAC 5:85-2.1 Revising the State Development and Redevelopment Plan

(a) The State Planning Commission shall revise and readopt the State Development and Redevelopment Plan in accordance with the State Planning Act. In so doing, the State Planning Commission shall prepare and distribute a "Preliminary Plan" for cross-acceptance.

(b) The preparation, approval, and cross-acceptance of a Preliminary Plan pursuant to these rules notwithstanding, the current State Development and Redevelopment Plan shall continue to constitute the official State Development and Redevelopment Plan until such time as it is revised and readopted by the State Planning Commission in accordance with the State Planning Act and N.J.A.C. 5:85-5.

HISTORY:
Repeal and New Rule by R.1997 d.7, effective January 6, 1997.
See: 28 New Jersey Register 4084(a), 29 New Jersey Register 150(b).
Section was "Functional state agency review of the Draft Preliminary State Development and Redevelopment Plan".
Amended by R.2003 d.336, effective August 18, 2003.
See: 35 New Jersey Register 304(a), 35 New Jersey Register 1990(a), 35 New Jersey Register 3819(a).
Amended N.J.A.C. reference.
Amended by R.2004 d.186, effective May 17, 2004.
See: 35 New Jersey Register 4001(a), 36 New Jersey Register 2490(c).
Rewrote (a); in (b), amended the N.J.A.C. reference. .

NJAC 5:85-2.2 Approval of the Preliminary State Development and Redevelopment Plan

(a) The State Planning Commission shall solicit comments and recommendations from all State agencies, appropriate Federal and regional agencies, county and municipal governments and from the public regarding possible revisions of the current State Development and Redevelopment Plan by providing notice pursuant to N.J.A.C. 5:85-1.7(a).

(b) The State Planning Commission shall, after due consideration of any public comments and recommendations, including those from municipal, county, regional, State and Federal governmental agencies, regarding the current State Development and Redevelopment Plan, approve a Preliminary State Development and Redevelopment Plan, with the Cross-Acceptance Manual, to commence cross-acceptance and authorize its transmittal to each county and municipal planning board, governing body and chief executive, clerk and to those interested persons and organizations who have registered with the Office of Smart Growth in accordance with N.J.A.C. 5:85-1.6(b).

HISTORY:
Recodified from 17:32-2.3 and amended by R.1997 d.7, effective January 6, 1997.
See: 28 New Jersey Register 4084(a), 29 New Jersey Register 150(b).
Rewrote (a) and, in (b), inserted reference to public comment and recommendations and substituted "municipal planning board, governing body and chief executive" for "municipality". Former section was "Public comment on Draft Preliminary State Development and Redevelopment Plan".
Amended by R.2004 d.186, effective May 17, 2004.
See: 35 New Jersey Register 4001(a), 36 New Jersey Register 2490(c).
Rewrote the section.

NJAC 5:85-2.3 Cross-Acceptance Manual

(a) The State Planning Commission's Cross-Acceptance Manual, adopted by resolution, shall include, at a minimum, a draft work program, a draft schedule, a sample negotiation agenda, and a sample Cross-Acceptance Report for participating negotiating entities to complete the cross-acceptance process. The Cross-Acceptance Manual shall provide adequate measures to ensure a timely and thorough comparison of the Preliminary State Development and Redevelopment Plan with plans of municipalities, counties, regional and State agencies.

(b) Within 45 days of receipt of the Preliminary State Development and Redevelopment Plan and the Cross-Acceptance Manual, the negotiating entity shall either accept the included draft work plan and schedule or propose revisions to the draft work program and schedule to the Office of Smart Growth.

(c) In the event of the proposed changes to the draft work program and schedule are determined to be inadequate in any way, the Office of Smart Growth shall specify necessary changes to ensure an effective and efficient cross-acceptance process with adequate opportunity for public participation.

HISTORY:
Recodified to N.J.A.C. 17:32-2.2 by R.1997 d.7, effective January 6, 1997.
See: 28 New Jersey Register 4084(a), 29 New Jersey Register 150(b).
New Rule, R.2004 d.186, effective May 17, 2004.
See: 35 New Jersey Register 4001(a), 36 New Jersey Register 2490(c).
Section was reserved.

NJAC 5:85-3.1 Commencement of comparing plans

(a) The purpose of comparing plans is to coordinate planning activities and establish Statewide-planning objectives and to solicit and receive findings, objections, and recommendations to the Preliminary State Development and Redevelopment Plan from the negotiating entities.

(b) Cross-acceptance shall commence on the official date of release, as established by the State Planning Commission, of the Preliminary State Development and Redevelopment Plan.

(c) The State Planning Commission shall conduct a joint public informational meeting with each county planning board in each county for the purpose of providing information on the Preliminary State Development and Redevelopment Plan not less than 45 nor more than 90 days after the release of the Preliminary State Development and Redevelopment Plan. The State Planning Commission shall provide notice of those meetings pursuant to N.J.A.C. 5:85-1.7(b).

HISTORY:
New Rule, R.1990 d.336, effective July 2, 1990.
See: 22 New Jersey Register 621(c), 22 New Jersey Register 2033(a).
Amended by R.1997 d.7, effective January 6, 1997.
See: 28 New Jersey Register 4084(a), 29 New Jersey Register 150(b).
Amended by R.2004 d.186, effective May 17, 2004.
See: 35 New Jersey Register 4001(a), 36 New Jersey Register 2490(c).
Rewrote the section.

NJAC 5:85-3.2 Negotiating entities for cross-acceptance

(a) The State Planning Commission shall negotiate plan cross-acceptance with each participating county planning board.

(b) The State Planning Commission shall transmit to each county a copy of the Cross-Acceptance Manual and a request for either a Notice of Participation or a Notice of Waiver when it distributes the Preliminary State Development and Redevelopment Plan.

(c) Notices of Participation or Waiver shall be transmitted by each county to the Office of Smart Growth no later than 45 days after the official release of the Preliminary State Development and Redevelopment Plan. Notice of that decision shall be provided in accordance with N.J.A.C. 5:85-1.7(d).

1. A Notice of Participation shall be a duly adopted resolution of the county governing body authorizing participation of the county in the cross-acceptance process.

2. A Notice of Waiver is a duly adopted resolution of the county governing body stating its intent to forfeit and waive its statutory authority to participate in cross-acceptance.

(d) In the event that a county transmits a Notice of Waiver or fails to transmit a Notice of Participation within 45 days after the official date of release of the Preliminary State Development and Redevelopment Plan, the State Planning Commission shall, pursuant to N.J.S.A. 52:18A-202(b), designate an appropriate entity, or itself, to assume the responsibility of negotiating entity for cross-acceptance for each such county. The State Planning Commission shall designate an appropriate negotiating entity, or itself, to participate in cross-acceptance in the place of the non-participating county, after having first consulted with the county and the entity to be designated as the negotiating entity and having secured that entity's commitment to participate in the cross-acceptance process.

HISTORY:
Recodified by R.1990 d.336, effective July 2, 1990.
See: 22 New Jersey Register 621(c), 22 New Jersey Register 2033(a).

Text on negotiating entities for county and municipal cross-acceptance recodified from 3.1; on optional joint county cross-acceptance agreements to 3.3.
Amended by R.1997 d.7, effective January 6, 1997.
See: 28 New Jersey Register 4084(a), 29 New Jersey Register 150(b).

In (a), deleted reference to transmission of financial assistance application form; and in (c), amended designation of negotiating entity language.
Amended by R.2003 d.336, effective August 18, 2003.
See: 35 New Jersey Register 304(a), 35 New Jersey Register 1990(a), 35 New Jersey Register 3819(a).

Amended N.J.A.C. reference.
Amended by R.2004 d.186, effective May 17, 2004.
See: 35 New Jersey Register 4001(a), 36 New Jersey Register 2490(c).
Rewrote the section.

NJAC 5:85-3.3 Optional joint county cross-acceptance agreements

Counties, especially those located within the purview of an existing regional planning agency or metropolitan planning organization, are encouraged to enter into intergovernmental agreements for consolidated or coordinated participation in cross-acceptance and if such an agreement is entered into notice of that agreement shall be provided pursuant to N.J.A.C. 5:85-1.7(d).

HISTORY:
Recodified by R.1990 d.336, effective July 2, 1990.
See: 22 New Jersey Register 621(c), 22 New Jersey Register 2033(a).

Text on optional joint county cross-acceptance agreements recodified from 3.2; on designating of the negotiating entity by the State Planning Commission to 3.4.
Amended by R.1997 d.7, effective January 6, 1997.

See: 28 New Jersey Register 4084(a), 29 New Jersey Register 150(b).
Amended by R.2004 d.186, effective May 17, 2004.

See: 35 New Jersey Register 4001(a), 36 New Jersey Register 2490(c).
Rewrote the section.

NJAC 5:85-3.4 (Reserved)

HISTORY:
Recodified by R.1990 d.336, effective July 2, 1990.
See: 22 New Jersey Register 621(c), 22 New Jersey Register 2033(a).

Text on designating of the negotiating entity by the State Planning Commission recodified to 3.3; on cross-acceptance work programs and grants-in-aid to 3.5.
Amended by R.1997 d.7, effective January 6, 1997.

See: 28 New Jersey Register 4084(a), 29 New Jersey Register 150(b).
Amended N.J.A.C. references and recodified (b)1 as (c).
Amended by R.2003 d.336, effective August 18, 2003.

See: 35 New Jersey Register 304(a), 35 New Jersey Register 1990(a), 35 New Jersey Register 3819(a).
Amended N.J.A.C. references.
Repealed by R.2004 d.186, effective May 17, 2004.

See: 35 New Jersey Register 4001(a), 36 New Jersey Register 2490(c).
Section was "Designation of negotiating entity by the State Planning Commission in lieu of county participation".

NJAC 5:85-3.5 (Reserved)

HISTORY:
Recodified by R.1990 d.336, effective July 2, 1990.

See: 22 New Jersey Register 621(c), 22 New Jersey Register 2033(a).
Text on municipal participation in the cross-acceptance process recodified to 3.6; on cross-acceptance work programs and grants-in-aid from 3.4.
Amended by R.1997 d.7, effective January 6, 1997.

See: 28 New Jersey Register 4084(a), 29 New Jersey Register 150(b).
In (b), amended N.J.A.C. reference; and, in (a) and (b), deleted references to submitting a cross-acceptance grant application.
Amended by R.2003 d.336, effective August 18, 2003.

See: 35 New Jersey Register 304(a), 35 New Jersey Register 1990(a), 35 New Jersey Register 3819(a).

Amended N.J.A.C. references.
Repealed by R.2004 d.186, effective May 17, 2004.

See: 35 New Jersey Register 4001(a), 36 New Jersey Register 2490(c).
Section was "Cross-acceptance work programs".

NJAC 5:85-3.6 Municipal participation in the cross-acceptance process

(a) Each municipality in the State shall participate in cross-acceptance by:

1. Providing to the negotiating entity the most up-to-date copies of the municipal master plans and other information and materials, such as master plan reexamination reports, land use ordinances and capital improvement programs, requested by the negotiating entity as necessary for an effective comparison of the State Development and Redevelopment Plan with the planning policies of the municipality and identifying infrastructure needs that should be included in the Infrastructure Needs Assessment; and

2. Participating through official representation at cross-acceptance meetings convened by the negotiating entity.

(b) A municipal planning board may, at its option, and by duly adopted resolution, appoint a committee to represent the full board at negotiation sessions.

(c) If a municipality is not satisfied with the Cross-Acceptance Report, in whole or in part, prepared by the negotiating entity pursuant to N.J.A.C. 5:85-3.9(a) or if the negotiating entity does not file a Cross-Acceptance Report, the municipality may file a separate report with the State Planning Commission, after holding a public meeting or hearing with notice provided pursuant to N.J.A.C. 5:85-1.7(d). The municipal Cross-Acceptance Report shall be submitted to the State Planning Commission within 45 days of either the negotiating entity filing its Cross-Acceptance Report or of the date the Cross-Acceptance Report was due to be filed if no such Report is filed by the negotiating entity and shall be in the form specified by the Office of Smart Growth in the Cross-Acceptance Manual. The Report shall outline the degree to which the municipality's planning is consistent with the Preliminary State Development and Redevelopment Plan, the degree to which its planning conflicts with the Preliminary State Development and Redevelopment Plan and any proposed modification to the Preliminary State Development and Redevelopment Plan or its plan and any infrastructure needs that should be addressed in the Infrastructure Needs Assessment. The individual municipal Cross-Acceptance Report shall also be filed with the negotiating entity and planning board of adjoining municipalities at the same time as it is filed with the State Planning Commission.

(d) If a municipality does not file a municipal Cross-Acceptance Report within 45 days of the filing of the Cross-Acceptance Report by the negotiating entity for the county that includes that municipality, then the municipality shall be deemed to have concurred and agreed with the Cross-Acceptance Report filed by the negotiating entity. If the negotiating entity for a county fails to file a Cross-Acceptance Report and any municipality within that county fails to file a municipal Cross-Acceptance Report within 45 days of the date by which the negotiating entity was due to file its Cross-Acceptance Report, then each such municipality shall be deemed to have concurred and agreed with the provisions of the Preliminary State Development and Redevelopment Plan.

HISTORY:
Recodified by R.1990 d.336, effective July 2, 1990.

See: 22 New Jersey Register 621(c), 22 New Jersey Register 2033(a).
Text on public informational meetings in each county recodified to 3.7; on municipal participation in the cross-acceptance process from 3.5.
Amended by R.1997 d.7, effective January 6, 1997.

See: 28 New Jersey Register 4084(a), 29 New Jersey Register 150(b).
Substituted "comparison phase of cross-acceptance" for "cross-acceptance process".
Amended by R.2004 d.186, effective May 17, 2004.

See: 35 New Jersey Register 4001(a), 36 New Jersey Register 2490(c).
Rewrote the section.

NJAC 5:85-3.7 Regional and State agency participation in the cross-acceptance process

(a) The Preliminary State Development and Redevelopment Plan shall be distributed to all appropriate regional and State agencies as determined by the State Planning Commission. Each such agency shall provide the State Planning Commission within three months a report outlining the degree to which its plans, policies, and regulations are consistent with the Preliminary State Development and Redevelopment Plan, the degree to which its plans, policies, and regulations conflict with the provisions of the Preliminary State Development and Redevelopment Plan, and any proposed modifications to the Preliminary State Development and Redevelopment Plan or its plans, policies, and regulations.

(b) The Office of Smart Growth shall provide each regional and State agency contacted pursuant to (a) above, notice of all public meetings and hearings conducted pursuant to these rules within their respective areas of jurisdiction.

HISTORY:
New Rule, R.1997 d.7, effective January 6, 1997.

See: 28 New Jersey Register 4084(a), 29 New Jersey Register 150(b).
Former section recodified to N.J.A.C. 17:32-3.8.
Amended by R.2004 d.186, effective May 17, 2004.

See: 35 New Jersey Register 4001(a), 36 New Jersey Register 2490(c).
Rewrote the section.

NJAC 5:85-3.8 (Reserved)

HISTORY:
Recodified by R.1990 d.336, effective July 2, 1990.
See: 22 New Jersey Register 621(c), 22 New Jersey Register 2033(a).
Text on technical assistance from the Office of State Planning recodified to 3.8; on public informational meetings in each county from 3.6.

Recodified from 17:32-3.7 and amended by R.1997 d.7, effective January 6, 1997.
See: 28 New Jersey Register 4084(a), 29 New Jersey Register 150(b).
References to date of distribution changed to official date of release. Former section was "Technical assistance from Office of State Planning during negotiation of cross-acceptance".

Repealed by R.2004 d.186, effective May 17, 2004.
See: 35 New Jersey Register 4001(a), 36 New Jersey Register 2490(c).
Section was "Public informational meetings in each county in regard to the Preliminary State Development and Redevelopment Plan".

NJAC 5:85-3.9 Comparison of the Preliminary State Development and Redevelopment Plan with local and county plans and preparation of a Cross-Acceptance Report

(a) The negotiating entity shall, after holding cross-acceptance meetings with the official representatives designated by the municipalities, compare municipal and county plans with the Preliminary State Development and Redevelopment Plan and prepare a Cross-Acceptance Report, in accordance with the Cross-Acceptance Manual. The Cross-Acceptance Report shall outline the degree to which the planning in the county and each municipality is consistent with the Preliminary State Development and Redevelopment Plan and the degree to which those plans conflict with the provisions of the Preliminary State Development and Redevelopment Plan, and any proposed modifications to the Preliminary State Development and Redevelopment Plan, or the municipal plans or county plan and any infrastructure needs that should be addressed in the Infrastructure Needs Assessment; and submit the Cross-Acceptance Report to the State Planning Commission and to municipal planning boards in that county, to the board of chosen freeholders and county executive, if any, in that county, to the county planning board if the county is not the negotiating entity, and to the planning boards of adjoining counties.

(b) Should a negotiating entity fail to file a Cross-Acceptance Report, or any part thereof, in substantial compliance with this chapter, the negotiating entity shall be deemed to be in agreement with the provisions of the Preliminary State Development and Redevelopment Plan as they pertain to those parts of the report not filed or deemed not to be in substantial compliance.

(c) The Cross-Acceptance Report of each negotiating entity shall not be filed with the State Planning Commission until the governing body of each such county, or the designated negotiating entity, shall have authorized the transmittal of the Cross-Acceptance Report at a public meeting or hearing for which notice was given pursuant to N.J.A.C. 5:85-1.7(d) or (e).

HISTORY:
Recodified by R.1990 d.336, effective July 2, 1990.
See: 22 New Jersey Register 621(c), 22 New Jersey Register 2033(a).
Text on negotiating entity reports recodified to 3.12; on comparison of State plan and local and county plans from 3.10.
Amended by R.1990 d.336, effective July 2, 1990.

See: 22 New Jersey Register 621(c), 22 New Jersey Register 2033(a).
Text on individual municipal reports recodified to 3.13; on negotiating entity reports from 3.11; (a) deleted; (b) recodified to (d); new (a), (b) and (c) added.
Recodified from 17:32-3.11, 17:32-12 and amended by R.1997 d.7, effective January 6, 1997.

See: 28 New Jersey Register 4084(a), 29 New Jersey Register 150(b).
Substantially amended section. Former section was "Public participation in the cross-acceptance process".
Amended by R.2003 d.336, effective August 18, 2003.

See: 35 New Jersey Register 304(a), 35 New Jersey Register 1990(a), 35 New Jersey Register 3819(a).
Amended N.J.A.C. references.
Amended by R.2004 d.186, effective May 17, 2004.

See: 35 New Jersey Register 4001(a), 36 New Jersey Register 2490(c).
Rewrote the section.

NJAC 5:85-3.10 Distribution of Cross-Acceptance Reports by the Office of Smart Growth

The Office of Smart Growth shall provide copies of all Cross-Acceptance Reports received by the State Planning Commission to each negotiating entity and to all appropriate State agencies. Those Reports shall be available to the general public at the Office of Smart Growth and on the Office of Smart Growth website.

HISTORY:
Amended by R.1990 d.336, effective July 2, 1990.

See: 22 New Jersey Register 621(c), 22 New Jersey Register 2033(a).
Text on Office of State Planning Report repealed; on individual municipal reports recodified from 3.12.
Recodified from 17:32-3.13 and amended by R.1997 d.7, effective January 6, 1997.

See: 28 New Jersey Register 4084(a), 29 New Jersey Register 150(b).
Substantially amended section. Former section was "Review of Preliminary Plan Maps by the negotiating entities during the cross-acceptance process".
Amended by R.2004 d.186, effective May 17, 2004.

See: 35 New Jersey Register 4001(a), 36 New Jersey Register 2490(c).
Rewrote the section. Former section was "Individual municipal reports in regards to cross-acceptance".

NJAC 5:85-3.11 (Reserved)

HISTORY:
Amended by R.1990 d.336, effective July 2, 1990.

See: 22 New Jersey Register 621(c), 22 New Jersey Register 2033(a).
Text on adoption of the State Plan repealed; new text on completion of comparison phase added.
Recodified from 17:32-3.14 and amended by R.1997 d.7, effective January 6, 1997.

See: 28 New Jersey Register 4084(a), 29 New Jersey Register 150(b).
Former section recodified to N.J.A.C. 17:32-3.9.
Repealed by R.2004 d.186, effective May 17, 2004.

See: 35 New Jersey Register 4001(a), 36 New Jersey Register 2490(c).
Section was "Completion of comparison phase of cross-acceptance".

NJAC 5:85-3.12 (Reserved)

HISTORY:
Recodified to N.J.A.C. 17:32-3.9 by R.1997 d.7, effective January 6, 1997.
See: 28 New Jersey Register 4084(a), 29 New Jersey Register 150(b).

NJAC 5:85-3.13 (Reserved)

HISTORY:
Recodified to N.J.A.C. 17:32-3.10 by R.1997 d.7, effective January 6, 1997
. See: 28 New Jersey Register 4084(a), 29 New Jersey Register 150(b).

NJAC 5:85-3.14 (Reserved)

HISTORY:
Recodified to N.J.A.C. 17:32-3.11 by R.1997 d.7, effective January 6, 1997.
See: 28 New Jersey Register 4084(a), 29 New Jersey Register 150(b).

NJAC 5:85-4.1 Commencement of negotiating plans

(a) The purpose of the negotiating plans is to attain consistency between municipal, county, regional, and State Plans with the Preliminary State Development and Redevelopment Plan. The process is designed to result in a written statement specifying areas of agreements or disagreements and areas requiring modification by parties to the negotiation.

(b) The State Planning Commission shall provide each negotiating entity and municipality that has submitted a Cross-Acceptance Report pursuant to N.J.A.C. 5:85-3, an opportunity for a sufficient number of negotiating sessions as determined by the State Planning Commission's negotiating committee and shall provide notice of those negotiating sessions pursuant to N.J.A.C. 5:85-1.7(b).

HISTORY:
Amended by R.1997 d.7, effective January 6, 1997.

See: 28 New Jersey Register 4084(a), 29 New Jersey Register 150(b).
In (a), amended N.J.A.C. references.
Amended by R.2003 d.336, effective August 18, 2003.

See: 35 New Jersey Register 304(a), 35 New Jersey Register 1990(a), 35 New Jersey Register 3819(a).
Amended N.J.A.C. references.
Amended by R.2004 d.186, effective May 17, 2004.

See: 35 New Jersey Register 4001(a), 36 New Jersey Register 2490(c).
Rewrote the section.

NJAC 5:85-4.2 State Planning Commission representation for negotiating plans

(a) The State Planning Commission may authorize an appropriate committee to represent the Commission to negotiate plans by a duly adopted resolution of the State Planning Commission.

(b) The State Planning Commission may, at its discretion, direct the committee to reconsider a determination made at any given negotiation session as described in the periodic reports referenced in N.J.A.C. 5:85-4.5(b).

(c) All determinations made by the State Planning Commission's negotiating committee regarding revisions to the Preliminary State Development and Redevelopment Plan shall be subject to the approval of the State Planning Commission.

HISTORY:
Amended by R.1997 d.7, effective January 6, 1997.

See: 28 New Jersey Register 4084(a), 29 New Jersey Register 150(b).
In (d), inserted text "made at any given negotiation session"; and in (e), amended N.J.A.C. reference.
Amended by R.2003 d.336, effective August 18, 2003.

See: 35 New Jersey Register 304(a), 35 New Jersey Register 1990(a), 35 New Jersey Register 3819(a).
Amended N.J.A.C. references.
Amended by R.2004 d.186, effective May 17, 2004.

See: 35 New Jersey Register 4001(a), 36 New Jersey Register 2490(c).
In (a), substituted "to negotiate plans" for "during the negotiation phase of cross-acceptance" preceding "by a duly"; inserted "State Planning" preceding "Commission" throughout".

NJAC 5:85-4.3 Negotiating entity representation for negotiating plans

(a) A negotiating entity may, at its option, and by duly adopted resolution, appoint a committee from among its members and staff to represent the negotiating entity at negotiation sessions.

(b) When the county planning board is the negotiating entity, all determinations made by the county planning board regarding the Preliminary State Development and Redevelopment Plan shall be subject to the action of the county governing body. The determination will be presumed to be acceptable if the governing body fails to act within 45 days from when the determination was received.

HISTORY:
Amended by R.1997 d.7, effective January 6, 1997.

See: 28 New Jersey Register 4084(a), 29 New Jersey Register 150(b).
In (c), amended N.J.A.C. reference and substantially amended the second sentence.
Amended by R.2003 d.336, effective August 18, 2003.

See: 35 New Jersey Register 304(a), 35 New Jersey Register 1990(a), 35 New Jersey Register 3819(a).
Amended N.J.A.C. reference.
Amended by R.2004 d.186, effective May 17, 2004.

See: 35 New Jersey Register 4001(a), 36 New Jersey Register 2490(c).
Deleted former (a) and recodified former (b) and (c) as new (a) and (b); inserted references to county planning board or the negotiating entity throughout.

NJAC 5:85-4.4 Municipal representation for negotiating plans

(a) Municipalities that are involved in individual negotiation sessions pursuant to N.J.A.C. 5:85-4.1 shall be represented at those sessions by a committee duly authorized by the municipal governing body.

(b) All determinations made at these sessions by the municipality regarding the Preliminary State Development and Redevelopment Plan shall be subject to the action of the municipal governing body. The determination will be presumed to be acceptable if the governing body fails to act within 45 days from when the determination was received.

HISTORY:
Amended by R.1997 d.7, effective January 6, 1997.

See: 28 New Jersey Register 4084(a), 29 New Jersey Register 150(b).
In (b), amended plan name and N.J.A.C. reference.
Amended by R.2003 d.336, effective August 18, 2003.

See: 35 New Jersey Register 304(a), 35 New Jersey Register 1990(a), 35 New Jersey Register 3819(a).
Amended N.J.A.C. references.
Amended by R.2004 d.186, effective May 17, 2004.

See: 35 New Jersey Register 4001(a), 36 New Jersey Register 2490(c).
Rewrote the section.

NJAC 5:85-4.5 The negotiation process

(a) Negotiation sessions shall be conducted as follows:

1. The staff of the Office of Smart Growth will meet with the authorized representatives of each negotiating entity, to reach agreement on issues raised in the Cross-Acceptance Reports and from the public comments and to identify those issues requiring negotiation between the negotiating committee of the State Planning Commission and the authorized representatives of the negotiating entities.

2. Each municipality that submits an individual municipal Cross-Acceptance Report, pursuant to N.J.A.C. 5:85-3.6(c), may choose to discuss and negotiate the issues presented in its Report with the Commission's negotiating committee, with the appropriate negotiating entity represented if the negotiating entity has filed a Cross-Acceptance Report. Prior to such discussion and negotiations, the committee designated by the municipality pursuant to N.J.A.C. 5:85-4.4 shall meet with the staff of the Office of Smart Growth to reach agreement on those issues raised in the municipal Cross-Acceptance Report and from the public comments requiring negotiation between the negotiating committee and the authorized representatives of the municipality.

3. The State Planning Commission's negotiating committee and the authorized representatives of each negotiating entity will meet to negotiate those issues identified in (a)1 above. The State Planning Commission's negotiating committee and the authorized representatives of each municipality involved in individual negotiation sessions pursuant to N.J.A.C. 5:85-4.1 will meet to negotiate those issues identified in (a)2 above.

(b) Agreements reached during negotiation sessions and any remaining disagreements shall be published by the Office of Smart Growth in periodic reports which shall be available to the general public at the Office of Smart Growth and on the Office of Smart Growth website, county offices and State depository libraries. Further distribution shall be made to the State Planning Commission and the parties involved and to those interested persons and organizations who have registered with the Office of Smart Growth pursuant to N.J.A.C. 5:85-1.6(b).

HISTORY:
Amended by R.1997 d.7, effective January 6, 1997.

See: 28 New Jersey Register 4084(a), 29 New Jersey Register 150(b).
In (a), added second sentence.
Amended by R.2003 d.336, effective August 18, 2003.

See: 35 New Jersey Register 304(a), 35 New Jersey Register 1990(a), 35 New Jersey Register 3819(a).
Amended N.J.A.C. reference.
Amended by R.2004 d.186, effective May 17, 2004.

See: 35 New Jersey Register 4001(a), 36 New Jersey Register 2490(c).
Rewrote the section.

NJAC 5:85-4.6 Completion of cross-acceptance

(a) When the State Planning Commission's negotiating committee believes that the negotiations have produced the highest degree of agreement among the negotiating entities, the committee shall submit a report containing a summary of its findings, including a draft Statement of Agreements and Disagreements resulting from each negotiation session, to the State Planning Commission, the negotiating entities, and each municipality and county and to those interested persons and organizations who have registered with the Office of Smart Growth pursuant to N.J.A.C. 5:85-1.6(b). The draft Statement of Agreements and Disagreements shall also be available at the Office of Smart Growth and on the Office of Smart Growth's website.

(b) Cross-acceptance shall conclude when the Statement of Agreements and Disagreements is approved by the State Planning Commission. The State Planning Commission shall not act on the draft Statement of Agreements and Disagreements until at least 14 days after it is distributed pursuant to (a) above.

(c) The State Planning Commission's negotiating committee shall forward to the State Planning Commission, for its consideration and approval, a draft Final State Development and Redevelopment Plan, reflecting recommended changes to the Preliminary State Development and Redevelopment Plan resulting from cross-acceptance. The State Planning Commission's negotiating committee shall also forward to the State Planning Commission for its consideration and approval a draft Infrastructure Needs Assessment. The draft Infrastructure Needs Assessment shall be distributed to the negotiating entities, and each municipality and county and to those interested persons and organizations who have registered with the Office of Smart Growth pursuant to N.J.A.C. 5:85-1.6(b). The draft Statement of Agreements and Disagreements shall also be available at the Office of Smart Growth and on the Office of Smart Growth's website.

HISTORY:
Amended by R.1991 d.457, effective September 3, 1991.

See: 23 New Jersey Register 1778(b), 23 New Jersey Register 2654(a).
Negotiation phase extended to 150 days after approval of State Development and Redevelopment Plan.
Recodified from 17:32-3.7 and amended by R.1997 d.7, effective January 6, 1997.

See: 28 New Jersey Register 4084(a), 29 New Jersey Register 150(b).
Deleted (c), relating to negotiation of deferred issues; and recodified (d) as (c) and substantially amended. Former section was "Public participation in the negotiation phase of cross-acceptance".
Amended by R.2003 d.336, effective August 18, 2003.

See: 35 New Jersey Register 304(a), 35 New Jersey Register 1990(a), 35 New Jersey Register 3819(a).
Amended N.J.A.C. reference.
Amended by R.2004 d.186, effective May 17, 2004.

See: 35 New Jersey Register 4001(a), 36 New Jersey Register 2490(c).
Rewrote the section.

NJAC 5:85-4.7 Impact Assessment of the draft Final State Development and Redevelopment Plan

(a) The State Planning Commission shall have prepared an assessment of the impacts of the draft Final State Development and Redevelopment Plan relative to the impacts that would likely occur without that draft Final State Development and Redevelopment Plan. The results of the assessment shall identify desirable changes to be incorporated into the Final State Development and Redevelopment Plan.

(b) The Impact Assessment shall be distributed to the Governor, Legislature, and governing bodies of each county and municipality, and made available to the general public. A period extending from 45 days prior to the first of the public hearings conducted pursuant to N.J.A.C. 5:85-5.2, to 30 days following the last of those hearings shall be provided for counties, municipalities, and other interested parties to review and respond to the Impact Assessment.

(c) After consideration of the results of the Impact Assessment, the State Planning Commission may choose to either amend or not amend the draft Final State Development and Redevelopment Plan as appropriate.

HISTORY:
New Rule, R.1997 d.7, effective January 6, 1997.
See: 28 New Jersey Register 4084(a), 29 New Jersey Register 150(b).
Former section was recodified to N.J.A.C. 17:32-4.6.
Amended by R.2003 d.336, effective August 18, 2003.
See: 35 New Jersey Register 304(a), 35 New Jersey Register 1990(a), 35 New Jersey Register 3819(a).
Amended N.J.A.C. reference.
Amended by R.2004 d.186, effective May 17, 2004.
See: 35 New Jersey Register 4001(a), 36 New Jersey Register 2490(c).
In (a), deleted the N.J.S.A. reference, substituted "draft Final" for "Interim" following "impacts of the", inserted "with and" following "likely occur"; in (b), inserted "draft" preceding "Impact Assessment"; in (c), substituted "draft Final State Development and Redevelopment" for "Interim".

NJAC 5:85-5.1 Commencement of Final Plan approval

Upon consideration of the formal reports of the negotiating entities and the State Planning Commission's negotiating committee, the draft Final State Development and Redevelopment Plan prepared by the negotiating committee and the Impact Assessment, the State Planning Commission shall prepare and approve for distribution a draft Final State Development and Redevelopment Plan, which will also include the draft Infrastructure Needs Assessment. The draft Final State Development and Redevelopment Plan shall be distributed at least 14 days in advance of the first public hearing to each negotiating entity, county and municipal planning board, mayor, board of chosen freeholders, county executive or county administrator, county and municipal clerk and to those interested persons and organizations who have registered with the Office of Smart Growth pursuant to N.J.A.C. 5:85-1.6(b). The draft Final State Development and Redevelopment Plan shall also be available at the Office of Smart Growth and on the Office of Smart Growth's website.

HISTORY:
Amended by R.1997 d.7, effective January 6, 1997.
See: 28 New Jersey Register 4084(a), 29 New Jersey Register 150(b).
Substantially amended section.
Amended by R.2003 d.336, effective August 18, 2003.
See: 35 New Jersey Register 304(a), 35 New Jersey Register 1990(a), 35 New Jersey Register 3819(a).
Amended the N.J.A.C. reference.
Amended by R.2004 d.186, effective May 17, 2004.
See: 35 New Jersey Register 4001(a), 36 New Jersey Register 2490(c).
Rewrote and undesignated former (a) and deleted (b).

NJAC 5:85-5.2 Required public hearings

(a) There shall be a minimum of six public hearings on the draft Final State Development and Redevelopment Plan in different locations throughout the State with notice provided pursuant to N.J.A.C. 5:85-1.7(b) and (c).

(b) The public hearings shall be convened by the State Planning Commission, or by a committee of the Commission designated for that purpose, whereupon comments will be taken on the draft Final State Development and Redevelopment Plan.

HISTORY:
Amended by R.1997 d.7, effective January 6, 1997.
See: 28 New Jersey Register 4084(a), 29 New Jersey Register 150(b).
Amended report and N.J.A.C. references.
Amended by R.2004 d.186, effective May 17, 2004.
See: 35 New Jersey Register 4001(a), 36 New Jersey Register 2490(c).
Substituted "draft Final" for "Interim" throughout; rewrote (a); deleted former (b) and (c) and recodified former (d) as new (b).

NJAC 5:85-5.3 Municipal and county review and comment before adoption of Final State Development and Redevelopment Plan

Municipalities and counties may submit written comments to the State Planning Commission regarding the draft Final State Development and Redevelopment Plan and the draft Infrastructure Needs Assessment at any time up to 30 days after the last public hearing conducted pursuant to N.J.A.C. 5:85-5.2.

HISTORY:
Amended by R.1997 d.7, effective January 6, 1997.
See: 28 New Jersey Register 4084(a), 29 New Jersey Register 150(b).
Amended report references.
Amended by R.2003 d.336, effective August 18, 2003.
See: 35 New Jersey Register 304(a), 35 New Jersey Register 1990(a), 35 New Jersey Register 3819(a).
Amended the N.J.A.C. references throughout.
Amended by R.2004 d.186, effective May 17, 2004.
See: 35 New Jersey Register 4001(a), 36 New Jersey Register 2490(c).
Rewrote and undesignated former (a); deleted (b).

NJAC 5:85-5.4 Adoption of the Final State Development and Redevelopment Plan

The State Planning Commission shall adopt a Final State Development and Redevelopment Plan, which includes the Infrastructure Needs Assessment, no sooner than 30 days and no later than 60 days after the last public hearing conducted pursuant to N.J.A.C. 5:85-5.2. Within 45 days of the State Planning Commission adopting the Final State Development and Redevelopment Plan, the Executive Director of the Office of Smart Growth shall provide notice of said adoption pursuant to N.J.A.C. 5:85-1.7(i).

HISTORY:
Recodified from 17:32-5.5 and amended by R.1997 d.7, effective January 6, 1997.
See: 28 New Jersey Register 4084(a), 29 New Jersey Register 150(b).
Substituted "final review phase" for "issue resolution phase". Section was "Public participation during the issue resolution phase of cross-acceptance".
Amended by R.2003 d.336, effective August 18, 2003.
See: 35 New Jersey Register 304(a), 35 New Jersey Register 1990(a), 35 New Jersey Register 3819(a).
Amended the N.J.A.C. references throughout.
Amended by R.2004 d.186, effective May 17, 2004.
See: 35 New Jersey Register 4001(a), 36 New Jersey Register 2490(c).
Rewrote the section.

NJAC 5:85-5.5 (Reserved)

HISTORY:
Recodified to N.J.A.C. 17:32-5.4 by R.1997 d.7, effective January 6, 1997.
See: 28 New Jersey Register 4084(a), 29 New Jersey Register 150(b).

NJAC 5:85-7.1 Introduction

(a) The State Planning Act includes the legislative finding that significant economies, efficiencies and savings in the development process would be realized by private sector enterprise and by public sector development agencies if the several levels of government would cooperate in preparing and adhering to sound and integrated plans. The Legislature further observed that a State Development and Redevelopment Plan needed to be designed for use as a tool for assessing suitable locations for infrastructure, housing, economic growth and conservation. The Legislature emphasized the importance of providing local governments in this State with the technical resources and guidance necessary to assist them in developing land use plans and procedures, which are based on sound planning information and practice, and to facilitate the development of local plans, which are consistent with State and regional plans and programs. To achieve the desired sound planning, the State Planning Act mandates that the Office of State Planning (predecessor to the Office of Smart Growth) provide advice and assistance to regional, county and local planning units.

(b) The State Planning Act specifically authorizes and requires the Office of State Planning to provide planning service to other agencies or instrumentalities of State government, to review the plans prepared by them, and to coordinate planning so as to avoid or mitigate conflicts between plans.

(c) The State Planning Act also requires the Office of State Planning to develop and promote procedures to facilitate cooperation and coordination among State agencies, regional entities, and local governments with regard to the development of plans, programs and policies, which affect land use, environmental, capital and economic development issues.

(d) The goals, policies, targets and indicators of the State Plan have been designed to address the concerns of the need to maintain beneficial growth, improve environmental quality, insure cost-effective delivery of infrastructure and other public services, improve governmental coordination, preserve the quality of community life and redevelop the State's major urban areas. Implementation of the State Plan is expected to achieve a balance among these concerns and to maximize the well-being for the State and its residents.

(e) This Plan Endorsement subchapter delineates the process developed by the Office of Smart Growth (successor to Office of State Planning) to increase the degree of consistency among municipal, county, regional and State agency plans and the State Plan and to facilitate implementation of these plans.

NJAC 5:85-7.2 Purpose and scope

(a) The purpose of this subchapter is to delineate procedural and substantive requirements of plan endorsement, including minimum submission requirements petitioner must meet in order to achieve plan endorsement and qualify for associated benefits; responsibilities of relevant State agencies in participating in plan endorsement; and responsibilities of the Office of Smart Growth in administering the plan endorsement process. The Office of Smart Growth shall prepare Guidelines for petitioners seeking to pursue plan endorsement. The Guidelines shall be posted on the Office of Smart Growth website at: http://www.njsmartgrowth.com and shall be periodically updated.

(b) This subchapter applies to municipalities, counties, regional planning entities and other relevant planning entities seeking plan endorsement.

(c) The State Planning Commission may approve a petition for plan endorsement submitted by a petitioner based upon recommendations of the Office of Smart Growth, in consultation with relevant regional, State and Federal agencies and after consideration of public comment.

(d) State agencies shall provide State agency benefits upon an approval of plan endorsement as described in the document entitled "Plan Endorsement Benefits" and posted on the Office of Smart Growth website at: http://www.njsmartgrowth.com. Additional State agency benefits, as appropriate and feasible, shall be added to said document as they become available.

(e) State agencies shall make available certain State agency benefits, and planning assistance, agreed upon by the petitioner and relevant State agencies during the plan endorsement process, once the Office of Smart Growth has issued a Certificate of Eligibility.

HISTORY:
Amended by R.2009 d.286, effective September 21, 2009.
See: 41 N.J.R. 1551(a), 41 N.J.R. 3407(b).
In (a), deleted the second sentence; and in (a) and (d), substituted "http://www.njsmartgrowth.com" for "http://www.nj.gov/dca/osg".

NJAC 5:85-7.3 Applicability

(a) Plans to which this subchapter applies and that may be considered for plan endorsement are:

1. Municipal master plans and supporting plan implementation mechanisms submitted by the municipal governing body pursuant to this subchapter;

2. County master plans and supporting plan implementation mechanisms, submitted by the county governing body pursuant to this subchapter. Municipalities within counties that have been granted plan endorsement shall only qualify for State agency benefits associated with plan endorsement upon receiving plan endorsement of said municipality;

3. Regional plans for any regional planning entity regarding a regional planning theme not associated with an intention to amend the State Plan Policy Map;

4. Regional plans for two or more municipalities sharing a common regional planning theme relating to an intention to amend the State Plan Policy Map, provided that each affected municipality individually petition for plan endorsement. Municipalities within regions that submit regional plans shall only qualify for State agency benefits associated with plan endorsement upon receiving plan endorsement of said municipality. Regional and municipal plan endorsement may be pursued concurrently;

5. Special resource area plans as defined in the State Development and Redevelopment Plan submitted by the relevant regional planning entity;

6. Neighborhood plans in municipalities designated as Urban Centers by the State Planning Commission, submitted by the municipal governing body, provided that endorsement of any neighborhood plan is part of an identified overall strategy for eventual endorsement of the master plan and supporting plan elements for the entire municipality; and

7. Plans that previously received Initial Plan Endorsement from the Commission.

(b) Plans submitted in connection with a petition for initial plan endorsement that have been deemed complete by the Office of Smart Growth prior to April 20, 2009, shall, upon petitioner's request, be considered for initial plan endorsement under the prior State Planning Rules governing plan endorsement.

HISTORY:
Amended by R.2009 d.286, effective September 21, 2009.
See: 41 N.J.R. 1551(a), 41 N.J.R. 3407(b).
Added new (a)3; recodified former (a)3 through (a)6 as (a)4 through (a)7; in (a)4, substituted "regional" for "resource or", "relating to an intention to amend the State Plan Policy Map," for "submitted jointly by the affected municipal governing bodies and pursuant to this subchapter," and "individually petition for plan endorsement" for "submit master plans and supporting plan implementation mechanisms".

NJAC 5:85-7.4 Posting and New Jersey Register publication requirements for the Office of Smart Growth

(a) Within five days of the Office of Smart Growth either receiving or issuing documents relating to plan endorsement pursuant to this subchapter, notice shall be posted and made by the Office of Smart Growth by:

1. Posting information concerning said documents on the Office of Smart Growth website;

2. Written notice concerning said documents to all persons or organizations who have registered with the Office of Smart Growth to receive public notice concerning a particular matter pursuant to N.J.A.C. 5:85-1.6(b); and

3. Written notice concerning said documents to appropriate regional, State and Federal agencies.

(b) Within 45 day of a State Planning Commission decision on a petition for plan endorsement pursuant to N.J.A.C. 5:85-7.19, a decision on revocation of a plan endorsement or of a previously designated center pursuant to N.J.A.C. 5:85-7.23 or a petition to amend pursuant to N.J.A.C. 5:85-7.24, the Office of Smart Growth shall publish notice of the decision in the New Jersey Register.

HISTORY:
Amended by R.2009 d.286, effective September 21, 2009.
See: 41 N.J.R. 1551(a), 41 N.J.R. 3407(b).
In (b), deleted "a decision on a temporarily reestablished center pursuant to N.J.A.C. 5:85-7.21," following "N.J.A.C. 5:85-7.19,".

NJAC 5:85-7.5 State agency responsibilities

(a) The State Planning Commission shall call to its assistance staff of any regional, State or Federal agency, regional planning entity, county municipality, or political subdivision thereof, as it requires to implement the plan endorsement program.

(b) Each State agency member of the State Planning Commission, and any other relevant State agency or authority, at the request of the State Planning Commission or the Executive Director, shall prepare a list of State agency benefits available for endorsed plans that shall be designed to encourage participation in plan endorsement, promote implementation of an endorsed plan and promote the policies and goals of the State Development and Redevelopment Plan. These benefits shall be made available only in an area that is the subject of a petition for plan endorsement, provided that the plan has been endorsed by the State Planning Commission. Each list of benefits, funding grants or other programs shall specify:

1. The benefits that will take effect once a petition for plan endorsement has been approved by the State Planning Commission pursuant to N.J.A.C. 5:85-7.19;

2. The information that must be included in the petition, the actions that must be taken by petitioner as delineated in an action plan or planning and implementation agreement in order for each such benefit to be made available; and

3. Those benefits that only apply in limited areas and the extent and reasons for those limitations.

(c) Each State agency member of the State Planning Commission, where appropriate and feasible, shall commit to making any modifications to State agency rules and programs that may be necessary to allow those benefits to accrue to the petitioner.

(d) Each State agency member of the Commission, and any other relevant State agency or authority, at the request of the Commission or the Executive Director, shall share the following responsibilities:>

1. Review and assess the plan submitted by a petitioner and provide a written analysis of those planning documents within the time periods provided in this subchapter;>

2. Provide guidance and assistance with respect to programs available through each State agency or authority that may assist a petitioner to achieve plan endorsement and implementation of a petitioner's planning strategy in a manner that is consistent with and promotes the goals and policies of the State Plan;

3. Prepare a list of plan implementation mechanisms that may be required for a petitioner to implement an endorsed plan to effectuate land use patterns that are consistent with the State Plan and provide adequate and appropriate examples of each such mechanism. In the event that an appropriate example of a required plan implementation mechanism does not exist, the relevant State agency will work with the Office of Smart Growth and the petitioner to develop same, which can later be used as an example;

4. Make reasonable recommendations to the petitioner and the Commission concerning requirements for a petitioner to receive plan endorsement and how to adequately implement the plan, once endorsed, by developing reasonable and appropriate planning implementation strategies for inclusion in a planning and implementation agreement to achieve consistency with the goals, policies and strategies of the State Plan; and

5. Facilitate prioritized technical assistance and coordinated regulatory review of applications of entities with endorsed plans, where the application is determined to be consistent with the endorsed plan and the goals, policies and strategies of the State Development and Redevelopment Plan and takes into account relevant State agency policies, rules and regulations.

(e) The Office of Smart Growth has prepared a list of available State agency benefits entitled "Plan Endorsement Benefits," which was approved by the State Planning Commission on October 17, 2007 and is presently posted on the Office of Smart Growth website at: http://www.njsmartgrowth.com. The Office of Smart Growth shall, on an ongoing basis, compile and maintain an updated list of all State agency benefits and requirements and make the list available to prospective petitioners and post the updated list on the Office of Smart Growth website.

HISTORY:
Amended by R.2009 d.286, effective September 21, 2009.
See: 41 N.J.R. 1551(a), 41 N.J.R. 3407(b).
In (b)2, inserted "or planning and implementation agreement"; in (d)4, inserted the fourth occurrence of "and"; and in (e), substituted "http://www.njsmartgrowth.com" for "http://www.nj.gov/dca/osg".

NJAC 5:85-7.6 Waivers

(a) Any of the requirements of plan endorsement, pursuant to N.J.A.C. 5:85-7.8, 7.9 and 7.11 may be partially or fully waived at the discretion of the Executive Director in consultation with the relevant State agencies.

(b) A waiver may be granted pursuant to (a) above, provided the Executive Director determines that a petitioner has previously satisfactorily completed the requirement, or has substantially complied with the intent of the requirement. The determination will be based on a consideration of whether standards for plan endorsement as delineated in this subchapter and, if appropriate, whether additional relevant requirements based on guidance provided by the Office of Smart Growth in plan endorsement guidelines and related guidance documents and as agreed upon between the Office of Smart Growth and petitioner, have been met.

(c) A petitioner may request a waiver for any provision of the plan endorsement process pursuant to (a) above, at any time. The request shall include a written justification to the Executive Director.

(d) Within 30 days of receipt of a request for a waiver pursuant to (c) above, the Executive Director shall determine whether the waiver is justified and notify the petitioner in writing of such determination.

(e) The Executive Director shall advise the State Planning Commission of a grant of any waivers pursuant to (a) through (d) above, at the next regularly scheduled Commission meeting following the decision.

(f) Any of the requirements of plan endorsement, other than N.J.A.C. 5:85-7.8, 7.9 and 7.11 may be waived at the discretion of the State Planning Commission, based on a written request by petitioner and a written recommendation by the Executive Director in consultation with any relevant State agencies. The recommendation shall be based on a determination of whether intended comprehensive planning goals have been achieved using alternative implementation mechanisms or whether a requirement of plan endorsement is determined to be inappropriate or unnecessary to achieve intended comprehensive planning goals, based on a petitioner's unique circumstances.

HISTORY:
Recodified from N.J.A.C. 5:85-7.9 and amended by R.2009 d.286, effective September 21, 2009.
See: 41 N.J.R. 1551(a), 41 N.J.R. 3407(b).
In (a) and (f), updated the N.J.A.C. references; in (a), inserted "partially or fully"; in (b), inserted "pursuant to (a) above,"; in (d), substituted "30" for "15"; and in (f), substituted "by" for "of" following "written recommendation", and substituted "in consultation with" for "and" following "Director". Former N.J.A.C. 5:85-7.6, Pre-petition submission requirements, scheduling and meeting, recodified to N.J.A.C. 5:85-7.7.

NJAC 5:85-7.7 Pre-petition submission requirements, scheduling and meeting

(a) A prospective municipal petitioner may request a meeting with the Office of Smart Growth when considering whether to petition for plan endorsement and is required to make the request in writing in order to initiate plan endorsement. Submission requirements for the request include one electronic and one hard color copy of the following:

1. A cover letter from the mayor to the Office of Smart Growth requesting a pre-petition meeting and stating the goals and intent of the prospective petitioner in seeking plan endorsement;

2. All planning documents, as delineated in N.J.A.C. 5:85-7.13(d), to the extent that they already exist; and
3. A list of existing planning documents that have been submitted.

(b) The Office of Smart Growth shall schedule a pre-petition meeting within 30 days after a prospective petitioner satisfies the submission requirements.

(c) The Office of Smart Growth, members of relevant State agencies, and representatives for the petitioner, including at least one elected official, shall attend a pre-petition meeting to discuss the plan endorsement process, goals and intent of a prospective petitioner in seeking plan endorsement, and the preliminary findings of State agency review of submitted planning documents.

(d) A petitioner shall submit its Self-Assessment Report within one year of a pre-petition meeting or the petition shall be considered to be withdrawn without prejudice and petitioner shall be informed in writing of the status of the petition.

HISTORY:
Recodified from N.J.A.C. 5:85-7.6 and amended by R.2009 d.286, effective September 21, 2009.
See: 41 N.J.R. 1551(a), 41 N.J.R. 3407(b).
In the introductory paragraph of (a), inserted "municipal" and "one electronic and one hard color copy of the following"; in (a)1, inserted "from the mayor"; rewrote (a)2; in (c), inserted ", including at least one elected official,"; and in (d), substituted "submit its Self-Assessment Report" for "begin to satisfy the requirements of plan endorsement". Former N.J.A.C. 5:85-7.7, Advisory committee appointment and membership, recodified to N.J.A.C. 5:85-7.8.

NJAC 5:85-7.8 Advisory committee appointment and membership

(a) Petitioner shall appoint an advisory committee to guide the plan endorsement process, serve as liaison with the State, county, regional agencies and local officials throughout the process and increase public awareness of and participation in the plan endorsement process. Appointments shall be made in accord with any relevant local government ethics law and be designed to avoid any appearance of impropriety.

1. For a municipal petitioner or a neighborhood petitioner, the advisory committee shall be appointed by the mayor with the advice and consent of the governing body, at a public meeting for which adequate notice has been provided. The appointment shall take effect by approval of a resolution of the governing body. The advisory committee shall consist of between five and 10 people including at least one representative of the governing body, of which the mayor is considered a member, for this purpose, at least one Class IV member of the planning board, at least one member of another local board, commission or committee; and at least two representatives of the public who reside within the jurisdiction of the petitioner and are not elected or appointed to any public position within said jurisdiction.

2. For a county petitioner, the advisory committee shall be appointed by the board of chosen freeholders at a public meeting for which adequate notice has been provided and the appointment shall take effect by approval of a resolution of the board of chosen freeholders. The advisory committee shall consist of between five and 10 people including at least one representative of the board of chosen freeholders, at least one member of the county planning board, at least one member of another countywide board, commission or committee, and at least two representatives of the public who reside within the jurisdiction of the petitioner and are not elected or appointed to any public position within said jurisdiction.

3. For a special resource area petitioner, the advisory committee shall be appointed by the relevant planning entity or by the governing body of each affected municipality, depending on the nature of the area, at a public meeting for which adequate notice has been provided. The appointment shall take effect upon approval of a resolution of the relevant planning entity. The advisory committee shall consist of between five and 10 members, including at least one member of a relevant planning entity, at least one member of a relevant board of chosen freeholders, one member of a relevant county planning board, at least two representatives of the public who reside within the area and are not elected or appointed to any public position within said area and at least one additional elected official, such that each political jurisdiction in the area is represented by an elected official at either the local, county or regional level. Membership in the advisory committee shall be subject to the approval of the Executive Director. The public members may not hold an appointed or elected position within the municipality or be employed by said relevant planning entity.

HISTORY:
Recodified from N.J.A.C. 5:85-7.7 and amended by R.2009 d.286, effective September 21, 2009.
See: 41 N.J.R. 1551(a), 41 N.J.R. 3407(b).
In the introductory paragraph of (a), substituted the first occurrence of "local" for "locals"; in (a)1 and (a)2, substituted "petitioner" for "plan" throughout the first sentence; in (a)1, inserted "of which the mayor is considered a member, for this purpose,"; and rewrote (a)3. Former N.J.A.C. 5:85-7.8, Self-Assessment Report, form, content, adoption and submission requirements, recodified to N.J.A.C. 5:85-7.9.

NJAC 5:85-7.9 Self-Assessment Report, form, content, adoption and submission requirements

(a) Petitioner shall prepare a Self-Assessment Report. Municipal petitioners may use the document entitled "Municipal Template Report," as posted on the Office of Smart Growth website as a template for the report. The municipal self-assessment report shall include, as a minimum:

1. An analysis of existing conditions of the area, a review of existing plans, and an assessment of the consistency of a petitioner's plans and implementation mechanisms with the goals and policies of the State Plan;

2. An inventory of key characteristics of the relevant area, including: current population and trends, housing and economy trends, available public facilities and services, transportation, water and sewer infrastructure, and natural, cultural and recreational resources;

3. Any requests for mapping amendments to the State Plan, such as planning areas and centers, in digital GIS format;

4. Findings and conclusions regarding consistency with the State Plan, including an assessment of actions needed to achieve consistency, benefits petitioner seeks as a result of plan endorsement;

5. Any requests for waivers pursuant to N.J.A.C. 5:85-7.6(a), including a justification for same;

6. A list of benefits petitioner seeks as a result of plan endorsement;

7. For petitioners representing a county, specific reference shall be made to identify and evaluate countywide efforts to provide for efficient use of natural and capital resources and to address planning for conditions for which a map change was requested in the latest round of cross acceptance;

8. For petitioners representing a special resource area, specific reference shall be made to identify and evaluate planning efforts made specifically to provide for protection of the special resource area; and

9. Data on square footage of commercial properties, number of households, acreage of vacant lands per municipal tax assessment, GIS parcels, and any other pertinent data mapping, to the extent that these files exist, to ensure accurate mapping of centers and other features.

(b) Petitioner shall hold a public meeting in which the advisory committee presents the findings and conclusions of the Self-Assessment Report to the relevant governing body or planning entity.

(c) Petitioner shall consider a resolution to pursue plan endorsement and authorize submission of the Self-Assessment Report to the Office of Smart Growth at a public meeting of the relevant governing body or planning entity.

(d) Submission of the Self-Assessment Report to the Office of Smart Growth as part of a petition for plan endorsement shall include the following:

1. Proof of public notice pursuant to N.J.A.C. 5:85-1.7(f) for all required public meetings in the form of an affidavit of publication;

2. A certified resolution from the governing body, or the relevant planning entity for a regional plan or special resource area plan, approving the Self-Assessment Report; and

3. Copies of the meeting minutes of each public meeting at which the Self-Assessment Report was reviewed and adopted. The minutes shall include a summary of public comments and copies of written comments filed before or during the public meeting.

HISTORY:
Recodified from N.J.A.C. 5:85-7.8 and amended by R.2009 d.286, effective September 21, 2009.
See: 41 N.J.R. 1551(a), 41 N.J.R. 3407(b).
In the introductory paragraph of (a), inserted "municipal"; rewrote (a)3; in (a)5, updated the N.J.A.C. reference; rewrote (a)6; in (a)7, deleted "and" from the end; in (a)8, substituted "; and" for a period at the end; added (a)9; in (b) and (c), deleted "regional" preceding "planning"; in (d)1, inserted "pursuant to N.J.A.C. 5:85-1.7(f)" and "in the form of an affidavit of publication"; and in (d)2, substituted "relevant" for "regional". Former N.J.A.C. 5:85-7.9, Waivers, recodified to N.J.A.C. 5:85-7.6.

NJAC 5:85-7.10 State agency Opportunities and Constraints Assessment and Report

(a) After receipt of a complete Self-Assessment Report and supporting documentation, the relevant State agencies shall compare the findings and conclusions of the petitioner's Self-Assessment Report with the most up-to-date regional and Statewide data, evaluate the report with regard to development, infrastructure and natural resources, and make an assessment as to whether trend growth apparent in petitioner's report is sustainable based on the resources and infrastructure available in the municipality, region and State. The report shall be made in accordance with this section and any additional agreed upon standards as described in the plan endorsement guidelines and shall be provided to the Office of Smart Growth.

(b) Within 45 days of receipt of the complete Self-Assessment Report, the Office of Smart Growth shall include the assessments provided by the relevant State agencies in an Opportunities and Constraints Report to the petitioner, summarizing the findings and conclusions of the opportunities and constraints assessment.

(c) The Opportunities and Constraints Report shall be used to inform the visioning process, described in N.J.A.C. 5:85-7.11, of existing conditions, and State agency assessment of planning related issues arising from these conditions.

(d) The Office of Smart Growth may require a site visit in order to better understand the dynamics of a community, county or region, and to enable the Office of Smart Growth and the State agencies to visualize the attributes and challenges of the area based on first-hand knowledge.

HISTORY:
Amended by R.2009 d.286, effective September 21, 2009.
See: 41 N.J.R. 1551(a), 41 N.J.R. 3407(b).
In (b) and (c), deleted "Assessment" following "Constraints".

NJAC 5:85-7.11 Community visioning process, vision statement development and adoption, and submission requirements

(a) Petitioner shall perform a community visioning process designed to maximize involvement of the community and structured so as to encourage consensus. Petitioner shall meet minimum requirements for conducting visioning sessions as set forth below and any additional agreed upon standards from plan endorsement guidelines and related support materials, which may be called for depending on individual circumstances. Community visioning shall engage the public in many ways through a variety of tools. Each step in which the public is invited to participate shall be widely promoted using each of the following promotional efforts, if available: notice on the official municipal, county or regional entity website; notice on locally broadcast cable TV station(s); articles in local newspapers and written materials posted in municipal buildings, schools and local businesses; and by notice to the Office of Smart Growth. Findings of the visioning process shall be used to develop a vision statement for inclusion in the master plan. Minimum requirements for conducting a visioning process include:

1. At least three facilitated workshops consisting of interactive discussions with residents and other community stakeholders to identify the community's purpose, core values, and vision for a 20-year horizon. The workshops shall be noticed in a legal advertisement, which satisfies the requirements at N.J.A.C. 5:85-1.7(j). At these workshops, a variety of materials relating to the community, such as maps, photos and resource inventories, shall be made available for review and discussion. The advisory committee shall provide further notice of the workshops according to N.J.A.C. 5:85-1.7(f)3, and shall provide the following additional notice, to the extent available, at least 10 days in advance of the workshops: issuing a press release to local newspapers promoting the workshops, posting notice of the workshops on the official municipal website and posting notice of the workshops in a conspicuous public place; and

2. At least two public hearings during the course of the visioning process in which a preliminary vision statement is vetted and discussed. The advisory committee shall, at least 10 days in advance of said public hearings, issue a press release to local newspapers regarding the vetting of the preliminary vision statement and post notice of the hearing on the official municipal website, if available, and in a conspicuous public place. The vision statement may be adopted as a part of the master plan. In this case, the hearings for such adoption shall be consistent with N.J.S.A. 40:55D-1 et seq., regarding adoption, revision or amendment of a master plan.

(b) A vision statement of community consensus of its intended future shall be prepared using the information gathered in the visioning process.

(c) A summary report identifying actions taken to meet minimum and agreed upon additional requirements for performing the visioning process.

(d) Submission of the vision statement to the Office of Smart Growth as part of a petition for plan endorsement, which shall include the following:

1. Proof of public notice pursuant to N.J.A.C. 5:85-1.7(f) for all required public meetings and hearings in the form of an affidavit of publication;

2. A certified resolution from the governing body, approving submission of the vision statement to the Office of Smart Growth;

3. Copies of materials used in the visioning process;

4. A copy of the summary report;

5. Copies of the meeting minutes of each public meeting and hearing at which the community vision was developed, reviewed and adopted. The minutes shall include a summary of public comments and copies of written comments filed before or during the public meeting or hearing; and

6. A copy of the vision statement.

(d) The Office of Smart Growth may require a site visit in order to better understand the dynamics of a community, county or region, and to enable the Office of Smart Growth and the State agencies to visualize the attributes and challenges of the area based on first-hand knowledge.

HISTORY:
Amended by R.2009 d.286, effective September 21, 2009.

See: 41 N.J.R. 1551(a), 41 N.J.R. 3407(b).
In the introductory paragraph of (a), inserted "; and by notice to the Office of Smart Growth"; rewrote (a)1; in (a)2, inserted the last two sentences; in (d)1, inserted "pursuant to N.J.A.C. 5:85-1.7(f)" and "in the form of an affidavit of publication"; rewrote (d)2; in (d)4, inserted "report" and deleted "and" from the end; in (d)5, substituted "; and" for a period at the end; and added (d)6.

Administrative correction.
See: 41 N.J.R. 3798(a).

NJAC 5:85-7.12 Commencement of consistency review

Upon receipt of all items submitted pursuant to N.J.A.C. 5:85-7.7, 7.8, 7.9 and 7.11(d) and any other plan implementation mechanisms identified by State agencies to be evaluated as requirements for consistency, pursuant to N.J.A.C. 5:85-7.5(d)3, the Executive Director shall commence the consistency review, post notice of receipt of required submissions and the commencement of review pursuant to N.J.A.C. 5:85-7.4 and send copies of the plan and supporting documents to the State agencies represented on the State Planning Commission and any other relevant State or Federal agency..

HISTORY:
Repeal and New Rule, R.2009 d.286, effective September 21, 2009.
See: 41 N.J.R. 1551(a), 41 N.J.R. 3407(b).
Section was "Complete petition for plan endorsement".

NJAC 5:85-7.13 Consistency review

(a) Within 45 days of receipt of items submitted pursuant to N.J.A.C. 5:85-7.12, relevant Federal, State and regional agencies shall provide comments regarding consistency of the petition to the Executive Director.

(b) Within 90 days of receipt of items submitted pursuant to N.J.A.C. 5:85-7.12, the Office of Smart Growth, in consultation with the relevant Federal, State and regional agencies, shall conduct a review of the plan for consistency with the goals, policies and strategies of the State Plan.

(c) In conducting the consistency review, consideration will be given to the ability of the submitted plan to achieve the targets and indicators contained in the State Plan that are applicable to the petitioner; the extent to which the activities listed to be undertaken in each planning area can or will achieve consistency with the State Plan goals and implement Statewide sound planning policies, taking into account relevant State agency policies, rules and regulations, and whether the plan is based on current information and data. Consistency will be evaluated based on all the provisions of the State Plan with particular emphasis on the following provisions:

1. The Statewide goals, policies and strategies;

2. The policies that apply to all planning areas;

3. The intentions for each relevant planning area;

4. The policy objectives for each relevant planning area;

5. If any change to a planning area boundary is proposed, the delineation criteria, intent and policy objectives for each planning area impacted by any boundary change;

6. The delineation criteria and intent for critical environmental sites and historic and cultural sites;

7. If there is a designated center or a center is proposed for designation, the policies for centers, including the center design policies, and environs; and

8. If a center is proposed to be designated or a change to the boundary of a designated center is proposed, the criteria for designating the type of center that is proposed to be designated or modified.

(d) A consistent municipal plan shall contain the following:

1. The submissions required pursuant to N.J.A.C. 5:85-7.12;

2. The following mandatory planning documents:

i. A sustainability statement;

ii. A land use element;

iii. A land use inventory or map;

iv. A zoning ordinance, schedule or map;

v. Documents detailing recent or upcoming developments;

vi. A circulation element;

vii. A municipal stormwater management plan and ordinance;

viii. A wastewater management plan;

ix. A housing element;

x. A petition for substantive certification filed with COAH or compliance with court-ordered housing;

xi. A draft fair share plan and implementing documents/ordinances;

xii. A community facilities plan, inventory and map;

xiii. A board of education five-year facilities plan;

xiv. An open space and recreation plan;

xv. A natural resource inventory;

xvi. A conservation plan and implementing ordinances;

xvii. Recycling Statement of Consistency;

xviii. A municipal recycling ordinance;

xix. A New Jersey State Police letter approving the local emergency operating plan; and

xx. A capital improvement program; and

3. The following conditional items, which may be required depending on local circumstances:

i. A utility service plan;

ii. A flood control plan;

iii. A recreation and open space inventory;

iv. An economic development plan;

v. An agricultural retention plan/farmland preservation plan, agricultural advisory committee, right-to-farm ordinance, and implementation program;

vi. A historic and cultural resources inventory, historic preservation plan, and implementation documents and mechanisms;

vii. Incorporation of hazard mitigation measures into relevant planning documents;

viii. A sustainability element; and

ix. Any additional requirements that are agreed upon between petitioner and the Executive Director, in consultation with the relevant State agencies;

(e) During the consistency review period, the Office of Smart Growth, at the discretion of the Executive Director, may hold a public hearing in an appropriate jurisdiction to receive testimony on the petition. The Office of Smart Growth shall hold a public hearing in an appropriate jurisdiction to receive public comment on the petition if the Executive Director receives a written request for such a hearing within 10 days of posting notice pursuant to N.J.A.C. 5:85-7.12 from:

1. The petitioner;

2. The governing body of a municipality or county, which is not the petitioner; or

3. A total of at least 10 written requests from other governmental agencies, advocacy groups or individuals with a demonstrated interest in the petition.

HISTORY:
Amended by R.2009 d.286, effective September 21, 2009.
See: 41 N.J.R. 1551(a), 41 N.J.R. 3407(b).

In (a) and (b), substituted "items submitted pursuant to N.J.A.C. 5:85-7.12" for "the complete petition for plan endorsement", and deleted the last sentence; in the introductory paragraph of (c), deleted the first sentence; rewrote (d); and in the introductory paragraph of (e), substituted "pursuant to N.J.A.C. 5:85-7.12" for "of receipt of a complete petition".

NJAC 5:85-7.14 Finding of consistency and recommendation report

(a) After receipt of items submitted pursuant to N.J.A.C. 5:85-7.12, the Executive Director shall make a determination as to whether or not a plan that is the subject of a petition for plan endorsement is consistent with the State Plan as described in N.J.A.C. 5:85-7.13 and the petitioner has fulfilled all requirements for plan endorsement as described in this chapter and relevant parts of the Plan Endorsement Guidelines. In the event the Executive Director determines the plan is consistent with the State Plan, then the Executive Director shall prepare a recommendation report to the Commission for its consideration, within 60 days of the conclusion of the 90-day consistency review period, containing detailed findings and conclusions to support the determination. The Executive Director may then issue a Certificate of Eligibility to petitioner pursuant N.J.A.C. 5:85-7.16. The Commission shall then consider the petition pursuant to N.J.A.C. 5:85-7.19.

(b) If the Executive Director determines that additional action must be taken to complete the self-assessment, visioning or other action necessary to achieve consistency, the Executive Director shall, in consultation with the relevant State agencies and petitioner, develop a draft Memorandum of Understanding and draft Action Plan pursuant to this subchapter. The Action Plan may include designation of an interim center, including a map depicting same. The Executive Director shall submit the drafts to the Commission for its consideration at a public hearing and petitioner shall continue to pursue plan endorsement as described in further detail below.

1. If the State Planning Commission determines that the self-assessment and visioning process steps have been performed, or that a waiver of these requirements has been properly granted, and the terms and conditions of the draft Action Plan and draft Memorandum of Understanding are appropriate to achieve consistency, then the Commission shall execute the Memorandum of Understanding and direct the Executive Director to issue a Certificate of Eligibility pursuant to N.J.A.C. 5:85-7.16.

2. If the State Planning Commission determines that the self-assessment and visioning are not acceptable or that the terms and conditions of the draft Action Plan and draft Memorandum of Understanding are not appropriate to achieve consistency, then it shall revise the draft Action Plan so that it is appropriate to achieve consistency, execute the Memorandum of Understanding and direct the Executive Director to issue a Certificate of Eligibility pursuant to N.J.A.C. 5:85-7.16.

3. If the Executive Director fails to provide a draft Action Plan and draft Memorandum of Understanding to the State Planning Commission and petitioner within the 90-day consistency review period, then petitioner may directly petition the State Planning Commission for plan endorsement, pursuant to N.J.A.C. 5:85-7.18.

HISTORY:
Amended by R.2009 d.286, effective September 21, 2009.
See: 41 N.J.R. 1551(a), 41 N.J.R. 3407(b).

In (a), substituted "items submitted pursuant to" for "a complete petition as defined in", "60" for "45" and "the conclusion of the 90-day consistency review period" for "receipt of the complete petition", and inserted "as described in N.J.A.C. 5:85-7.13"; and in the introductory paragraph of (b), deleted a comma following "visioning", inserted the second sentence and substituted "The" for "Then, the" preceding the last occurrence of "Executive Director".

NJAC 5:85-7.15 Action Plan and Memorandum of Understanding adoption, submission and completion

(a) Within 60 days of the State Planning Commission's execution of the Memorandum of Understanding pursuant to N.J.A.C. 5:85-7.14(b), or within a reasonable period of time as agreed to by the Executive Director, the petitioner shall authorize execution of the Memorandum of Understanding by resolution at a public hearing of the governing body, or the relevant planning entity for a regional, county or special resource area plan, to commit to complete the requirements identified in the Action Plan to achieve endorsement of the petitioner's plan.

1. Petitioner shall consider adoption of the Memorandum of Understanding and Action Plan at a public hearing of the relevant governing body or planning entity.

2. Municipal petitioners shall present the Memorandum of Understanding and Action Plan to both the planning board and governing body, which can be at the same or separate public hearings. The planning board and governing body may choose to hold a joint public hearing to consider adoption of the Memorandum of Understanding and Action Plan.

3. Petitioner shall submit the fully executed Memorandum of Understanding to the Executive Director. Submission of the executed Memorandum of Understanding shall include the following:

i. Proof of public notice pursuant to N.J.A.C. 5:85-1.7 for all required public meetings and hearings in the form of an affidavit of publication;

ii. A certified resolution from the governing body, or the relevant planning entity for a regional plan or special resource area plan, approving execution of the Memorandum of Understanding;

iii. A copy of the meeting minutes of each public meeting and hearing at which the Memorandum of Understanding and Action Plan were reviewed. The minutes shall include a summary of public comments and copies of written comments filed before or during the public hearing(s); and

iv. A copy of the certified resolution authorizing execution of the Memorandum of Understanding, a copy of the executed Memorandum of Understanding, and a copy of the approved Action Plan.

(b) If petitioner fails to execute the Memorandum of Understanding to enter into the Action Plan with the State Planning Commission within 60 days of the Commission's execution of the Memorandum of Understanding, or within a reasonable period of time as agreed to by the Executive Director, in consultation with relevant State agencies, the petition will be considered to have been withdrawn without prejudice and the petitioner so notified. Notice of any such withdrawal shall be provided by the Office of Smart Growth to the petitioner, and the Commission pursuant to N.J.A.C. 5:85-1.7(h) and 7.4(b).

(c) An approved Action Plan may only be amended for good cause shown at the discretion of the Executive Director. Notice of any amendments to an Action Plan shall be provided to the Commission and the public pursuant to N.J.A.C. 5:85-1.7(h) and 7.4(b).

(d) Interim centers shall remain designated for two years provided petitioner continues making progress in following the Action Plan. Interim centers may be revoked by the Commission in the event petitioner fails to satisfy action plan deadlines, based on a recommendation by the Executive Director, in consultation with relevant State agencies. Boundaries of interim centers shall be used to define boundaries of designated centers and may only be amended if they are shown to be inconsistent with the State Plan as determined by the Commission.

HISTORY:
Amended by R.2009 d.286, effective September 21, 2009.
See: 41 N.J.R. 1551(a), 41 N.J.R. 3407(b).

In the introductory paragraph of (a), substituted "relevant" for "regional" and ", county" for "plan"; in (a)1, deleted "regional" preceding "planning"; in (a)3i, inserted "pursuant to N.J.A.C. 5:85-1.7" and "in the form of an affidavit of publication"; in (a)3ii, substituted "relevant" for "regional"; in (a)3iii, substituted ". The minutes shall include" for "and adopted includes"; in (b), inserted "in consultation with relevant State agencies,"; and added (d).

NJAC 5:85-7.16 Certificate of Eligibility

(a) A Certificate of Eligibility for Plan Endorsement represents to the State the commitment of a municipality, county, or regional entity to adopt and implement a plan consistent with the State Plan and based on available resources and infrastructure. The Certificate of Eligibility qualifies a petitioner to State agency assistance in preparing and updating plans for endorsement and authorizes petitioner to pursue parallel planning efforts, including, but not limited to, seeking designation of areas in need of redevelopment that may be appropriate but are outside of smart growth areas pursuant to the Local Redevelopment and Housing Law (N.J.S.A. 40A:12A-1 et seq.). The Executive Director shall issue a Certificate of Eligibility as follows:

1. When a petitioner submits a consistent petition pursuant to N.J.A.C. 5:85-7.14(a);

2. In the event additional steps are needed to achieve consistency, within 10 days of receipt of a fully executed Memorandum of Understanding and Action Plan pursuant to N.J.A.C. 5:85-7.15; and

3. To a petitioner that previously received Initial Plan Endorsement from the State Planning Commission and has entered into a Memorandum of Understanding and Action Plan, pursuant to N.J.A.C. 5:85-7.15, if necessary.

(b) Upon issuance of a Certificate of Eligibility, the State agencies shall coordinate planning and regulatory assistance and public investment decisions, to the maximum extent possible in order to assist a petitioner to achieve endorsement and implementation of its plan.

HISTORY:
Amended by R.2009 d.286, effective September 21, 2009.
See: 41 N.J.R. 1551(a), 41 N.J.R. 3407(b).

In the introductory paragraph of (a), deleted "developing a transfer of development rights (TDR) program pursuant to the State TDR Act (N.J.S.A. 40:55D-137 et seq.) and" preceding "seeking designation"; in (a)1, (a)2 and (a)3, updated the N.J.A.C. references; in (a)1, deleted "complete and" preceding "consistent"; and in (a)2, deleted ", respectively" preceding "; and".

NJAC 5:85-7.17 Draft Planning and Implementation Agreement

Prior to receiving endorsement, the petitioner shall work with relevant State agencies to develop a draft Planning and Implementation Agreement, that outlines planning implementation mechanisms for the petitioner to undertake during the 10-year endorsement period so that the petitioner will achieve the goals and vision described in the endorsed plan, and State agency benefits needed to successfully implement the plan once endorsed. The draft Planning and Implementation Agreement shall be adopted as part of the Commission resolution granting endorsement of a petition pursuant to N.J.A.C. 5:85-7.19. Petitioner's ability to maintain endorsement over the 10-year period shall be contingent upon fulfilling the obligations of the Planning and Implementation Agreement.

HISTORY:
Amended by R.2009 d.286, effective September 21, 2009.
See: 41 N.J.R. 1551(a), 41 N.J.R. 3407(b).
Rewrote the section.

NJAC 5:85-7.18 Recommendation report, review of petition, and direct petition

(a) Within 60 days of satisfaction of action items in an Action Plan, the Executive Director shall prepare a recommendation report to the Commission. The report shall either determine that the plan is consistent or not consistent with the State Plan.

(b) Within 45 days after receipt of the Executive Director's recommendation report, a duly authorized subcommittee of the Commission shall review the Executive Director's recommendation report and shall recommend that the petition be considered for approval, approval with revisions or denial by the Commission at its next regularly scheduled meeting.

(c) If the subcommittee requests additional information from petitioner to make its determination, it may add an additional 45 days after receipt of the requested information, to prepare its recommendations on the petition.

(d) A petitioner may directly petition the Commission for plan endorsement under the following circumstances:

1. If the subcommittee fails to make a recommendation on the petition within 45 days of receipt of the Executive Director's Report or within 45 days of receipt of the requested additional information, or if the petitioner disagrees with the recommendation of the subcommittee; or

2. If the Office of Smart Growth fails to prepare a draft Action Plan and Memorandum of Understanding pursuant to N.J.A.C. 5:85-7.14.

HISTORY:
Amended by R.2009 d.286, effective September 21, 2009.
See: 41 N.J.R. 1551(a), 41 N.J.R. 3407(b).
Rewrote (a); in (b), inserted the first occurrence of "recommendation"; and in (d)2, updated the N.J.A.C. reference.

NJAC 5:85-7.19 Plan endorsement by State Planning Commission

(a) Within 45 days after receipt of the recommendation report pursuant to N.J.A.C. 5:85-7.14 or a direct petition pursuant to N.J.A.C. 5:85-7.18, the Commission shall conduct a hearing to consider the petition and Executive Director's report and affirm, revise or reverse the Executive Director's recommendation on the petition or the petitioner's direct petition for endorsement. If the Commission determines that the plan is consistent with the State Plan, it shall approve the petition for plan endorsement and authorize execution of the Planning and Implementation Agreement. If the Commission determines the plan is not consistent with the State Plan, the Commission shall either request the petitioner to make necessary changes to address requirements that must be met in order to achieve consistency with the State Plan, or deny the petition. The Commission's approval or denial of a petition is a final agency action.

1. Within 30 days of the Commission's action on a petition for plan endorsement, the Executive Director shall notify the petitioner in writing of the Commission's determination, findings and recommendations regarding the petition.

HISTORY:
Amended by R.2009 d.286, effective September 21, 2009.
See: 41 N.J.R. 1551(a), 41 N.J.R. 3407(b).

In the introductory paragraph of (a), substituted "recommendation report" for "subcommittee's recommendation", and deleted "or 7.18," following "N.J.A.C. 5:85-7.14", ", if relevant" following "Agreement", and ", so that the plan is consistent with the State Plan, prepare an Action Plan" following "changes".

NJAC 5:85-7.20 Extension of time requirements

(a) The Executive Director may extend, up to 90 days, the time allowed for State actions under this subchapter, in the event that the number of requests for plan endorsement or amendments thereto exceeds the resources of the Office of Smart Growth to process those requests.

(b) The Executive Director may extend any time period in this subchapter up to an additional 90 days for the purpose of requesting additional information necessary to adequately and appropriately evaluate a petition for plan endorsement, an amendment to a previously endorsed plan or center designation. The period of review shall be extended 30 days after the receipt of the requested additional information by the Office of Smart Growth.

(c) Public notice of any extensions shall be provided pursuant to N.J.A.C. 5:85-7.4.

HISTORY:
Amended by R.2009 d.286, effective September 21, 2009.
See: 41 N.J.R. 1551(a), 41 N.J.R. 3407(b).

In (b), substituted "30" for "60"; in (c), substituted "pursuant to N.J.A.C. 5:85-7.4" for "to the petitioner, to those interested persons and organizations who have registered with the Office of Smart Growth in accordance with N.J.A.C. 5:85-1.6(b)"; and deleted (d).

NJAC 5:85-7.21 Period of endorsement

(a) Endorsement of any plan shall be valid for 10 years.

(b) In the Pinelands, as defined by N.J.A.C. 7:50-2.11, the Pinelands Commission's certification of a municipality's master plan and land use ordinances pursuant to N.J.A.C. 7:50-3.31 et seq., is deemed equivalent to endorsement by the Commission for the purposes of qualifying municipalities for benefits of plan endorsement, provided the municipality's master plan and land use ordinances remains certified. Pinelands Regional Growth Areas, Pinelands Towns and Pinelands Villages within the municipalities having Pinelands Commission certified plans and implementing land use ordinances are deemed equivalent to designated regional centers, town centers and village centers, respectively, as defined in the State planning rules and State Plan, for the purposes of determining eligibility for State agency benefits of plan endorsement.

(c) Urban complex strategic revitalization plans and corridor plans, including any centers, cores or nodes designated therein, approved prior to January 7, 2002, shall remain endorsed for a period of 10 years from January 7, 2002.

(d) Designated centers, cores and nodes approved prior to January 7, 2002, shall remain endorsed for a period of six years from January 7, 2002.

(e) Designated centers approved after January 7, 2002 and prior to July 1, 2004, other than centers designated in an endorsed plan, shall be endorsed for a period of six years from the date of designation by the Commission.

HISTORY:
Amended by R.2009 d.286, effective September 21, 2009.
See: 41 N.J.R. 1551(a), 41 N.J.R. 3407(b).
Rewrote (b); in (e), deleted ", cores and nodes" following the first occurrence of "centers"; and deleted (f) and (g).

NJAC 5:85-7.22 Monitoring of endorsed plans and designated centers

(a) The Executive Director shall periodically monitor the status and progress of endorsed plans and associated Planning and Implementation Agreements and previously designated centers, during the term of plan endorsement or prior center designation and shall forward all reports to the Commission.

(b) Within one year from the date of endorsement, municipalities, counties or other relevant planning entities having endorsed plans or previously designated centers shall provide an annual report to the Executive Director on the status of their Planning and Implementation Agreement efforts, with biennial reports due thereafter, unless otherwise agreed. The annual and biennial reports shall include any Board of Adjustment Annual Report on Variances pursuant to N.J.S.A. 40:55D-70.1, planning board reports, and significant updates to other planning materials submitted as part of the petition for plan endorsement, including zoning ordinances or other implementation measures, adopted since plan endorsement, or prior center designation and submission of the last annual report. The report shall state how these items are consistent with the State Plan, the endorsed plan and the terms of the Planning and Implementation Agreement.

(c) At least 30 days prior to adoption of a new or significantly revised plan by municipalities, counties, regional agencies or planning authorities with endorsed plans or previously designated centers, copies of said new or significantly revised plans shall be provided to the Executive Director. Within 30 days after adoption of said new or significantly revised plans identified above, copies shall be provided to the Executive Director. The impacts of the new or significantly revised plan on the endorsed plan shall also be addressed in the next regularly scheduled annual report.

(d) If a complaint is received by the Office of Smart Growth or the Commission of failure to comply with the terms of an endorsed plan or the Planning and Implementation Agreement or a Planning Implementation Agenda prepared in connection with a prior center designation, within 45 days of receipt of said complaint, the Executive Director shall investigate and report to the Commission. Public notice of any such complaint and any report by the Executive Director shall be provided in accord with N.J.A.C. 5:85-7.4.

HISTORY:
Amended by R.2009 d.286, effective September 21, 2009.
See: 41 N.J.R. 1551(a), 41 N.J.R. 3407(b).
Rewrote (b) and (d).

NJAC 5:85-7.23 Revocation of plan endorsement or prior center designation

(a) If the Executive Director finds that a jurisdiction has made substantial changes to its endorsed plan or previously designated center, or has substantially violated the terms of its Planning and Implementation Agreement, so that its endorsed plan or previously designated center are inconsistent with the State Plan, the Executive Director shall:

1. Direct the Office of Smart Growth to conduct a public hearing in the affected jurisdiction to receive public comment on the status and progress of the jurisdiction's implementation of the endorsed plan or previously designated center. Minutes of this public hearing shall include a summary of public comments and copies of written comments filed before, or presented at, the public hearing;

2. Prepare and forward a monitoring report to the Commission recommending that plan endorsement or prior center designation be revoked;

3. Inform the petitioner, county representatives and the Commission in writing of the reasons therefore; and

4. Provide written notice of said recommendation to the relevant planning entity pursuant to N.J.A.C. 5:85-1.7(h) and post notice pursuant to N.J.A.C. 5:85-7.4.

(b) Within 45 days of the issuance of the monitoring report by the Executive Director, the Commission or its duly authorized subcommittee shall review the recommendation report of the Executive Director and the Commission shall affirm, revise, or reverse the recommendation based on its determination of whether the endorsed plan or prior center designation remains consistent with the State Development and Redevelopment Plan. Except for a revision of the recommendation, the Commission determination regarding revocation shall be a final agency action.

(c) Within 45 days after Commission action, as set forth in (b) above, the Executive Director shall provide notice of the decision to the petitioner, pursuant to N.J.A.C. 5:85-1.7(i) and post notice pursuant to N.J.A.C. 5:85-7.4.

(d) Upon revocation by the Commission of an endorsed plan or previously designated center, all benefits and incentives made available to a petitioner shall be rendered null and void.

HISTORY:
Amended by R.2009 d.286, effective September 21, 2009.
See: 41 N.J.R. 1551(a), 41 N.J.R. 3407(b).
In (b), substituted "45" for "60"; and in (c), substituted "45" for "30" and inserted "and post notice pursuant to N.J.A.C. 5:85-7.4".

NJAC 5:85-7.24 Petitions to amend endorsed plans, previously designated centers, Planning and Implementation Agreements

(a) Petitions to amend endorsed plans, previously designated centers or Planning and Implementation Agreements may be submitted by the original petitioner, in its annual report, unless either the endorsement period will end in less than two years or it can be demonstrated that, for special reasons, the proposed amendment cannot wait until the next biennial report is due.

(b) A petition to amend shall include, at a minimum:

1. A Self-Assessment Report, fully completed and signed by the petitioner or a duly authorized official, representing the petitioner;

2. A statement updating the petitioner's latest annual report, if the petition amendment is not being proposed as part of a biennial report;

3. A list of the documents being submitted;

4. Proof that notice of submission of the petition to amend to the Executive Director has been provided pursuant to N.J.A.C. 5:85-1.7(f) in the form of an affidavit of publication;

5. A certified resolution from the governing body for a municipal petitioner or the relevant planning entity for a county plan, regional plan or special resource area plan, that is impacted by the petition to amend, approving the petition to amend, wherein said certified resolution authorizes the official of the municipality or the relevant planning entity to submit the petition and execute any requested or required amendment;

6. A copy of the meeting minutes of each public meeting or hearing at which the petition to amend was reviewed, and of the hearing during which the resolution approving the petition to amend was approved. The minutes shall include a summary of public comments and copies of written comments filed before or at the public meeting;

7. If any changes to the State Plan Policy Map are proposed, both the proposed and current State Plan Policy Map boundaries shall be depicted in digital files conforming to national standards of 1:24,000 scale accuracy and as provided in the Plan Endorsements Guidelines;

8. One hard copy in color and one electronic copy of the petitioner's proposed amendment;

9. A narrative description of public participation and planning coordination efforts used to prepare and submit the petition to amend;

10. A statement describing:

i. How the amendment promotes local, regional and State goals and objectives;

ii. How the amendment will impact public sector decisions;

iii. The reason(s) why the amendment cannot wait until the next revision of the State Plan; and

iv. The reason(s) why the amendment is not being proposed as part of a biennial report, if the amendment is not being proposed as part of a biennial report; and

11. A report describing:

i. How the proposed amendment is consistent with the State Plan; and

ii. How the amendment helps the municipality, county, regional and State agencies achieve consistency with the State Plan and the endorsed plan or previously designated centers; or

iii. Why the current planning and implementation agreement item that is proposed to be changed cannot be implemented and why the proposed change will accomplish the same purpose as well or better as the original agreement.

(c) Within 60 days of the receipt of a petition to amend, the Executive Director shall provide written notice to the petitioner and the Commission, as to whether the petition complies with this subchapter.

(d) In cases where the Executive Director finds that the petition to amend has not been submitted in accordance with this subchapter, the Executive Director shall inform the petitioner in writing within 60 days after receipt of the petition to amend, of the deficiencies of the petition. If a revised petition to amend is not resubmitted within 90 days after receipt of the Executive Director's notice, or as otherwise agreed, or is submitted incorrectly, it will be considered withdrawn without prejudice and the petitioner so notified. The Executive Director shall provide notice of any such withdrawal to those interested persons and organizations who have registered with the Office of Smart Growth in accordance with N.J.A.C. 5:85-1.6(b) and post such information on the Office of Smart Growth website.

(e) In cases where the Executive Director finds that the petition to amend is submitted in accordance with this subchapter, or is resubmitted correctly pursuant to (a) and (b) above, the Executive Director shall provide public notice in accordance with N.J.A.C. 5:85-1.7(b) and send copies of the petition, plan and supporting documents to the State agencies represented on the Commission and any other relevant State or Federal agency.

(f) The relevant State and Federal agencies receiving copies of a petition to amend pursuant to (e) above shall provide comments to the Executive Director within 60 days.

(g) Within the State and Federal agency 60-day review period, the Office of Smart Growth may hold a public hearing in an appropriate jurisdiction to receive public comment on the petition with public notice provided pursuant to N.J.A.C. 5:85-1.7(b).

(h) The Office of Smart Growth shall hold a public hearing if the Executive Director receives a written request for such a hearing from the petitioner, the governing body of a municipality or county, which is not the petitioner or a total of at least 10 written requests from other governmental agencies, advocacy groups or individuals with a demonstrated interest in the petition within 10 days of the Office of Smart Growth providing notice public notice pursuant to (e) above that a petition to amend has been submitted in accordance with this subchapter.

(i) In cases where the Executive Director determines that a petition to amend is submitted in accordance with this section, the Executive Director shall determine within 90 days after the conclusion of the State and Federal agency review period whether the subject of the petition to amend is consistent with the State Plan.

(j) The Executive Director shall prepare a report containing detailed findings and conclusions concerning the consistency of the subject of the petition to amend with the State Plan. The Executive Director shall provide notice of the report pursuant to N.J.A.C. 5:85-1.7(b) and forward the report to the Commission, the petitioner and post the report on the Office of Smart Growth website.

1. If the Executive Director determines that the subject of the petition to amend is consistent with the State Plan, the Executive Director shall recommend that the petition to amend be approved by the Commission.

2. If the Executive Director determines that the subject of the petition to amend is not consistent with the State Plan, the Executive Director shall either recommend the necessary changes that should be required by the Commission to make the subject of the petition to amend consistent with the State Plan, or recommend that the petition to amend be denied by the Commission.

3. If the Executive Director fails to submit a recommendation to the Commission concerning a petition to amend that has been determined to have been submitted pursuant to this subchapter within the 90-day time period set forth in (i) above, the petitioner may request that the Commission take direct action on the petition.

(k) The Commission and any duly authorized subcommittee shall review the recommendation of the Executive Director, that the petition to amend was submitted in accordance with this subchapter, and the determination as to whether the subject of the petition to amend is consistent with the State Plan.

(l) Within 45 days after receipt of the recommendation, the Commission shall conduct a hearing on the petition to amend and affirm, revise or reverse the Executive Director's recommendation, based on its determination of whether the subject of the petition is consistent with the State Plan. The Commission determination on the petition to amend shall be a final agency action.

(m) The Executive Director shall, within 30 days after Commission action as set forth in (l) above, notify the petitioner in writing of the Commission's determination, findings and recommendations regarding the petition to amend.

(n) Within 45 days of the Commission determining whether the petition to amend was submitted in accordance with this section, and is consistent with the State Plan, the Executive Director shall post notice of said determination pursuant to N.J.A.C. 5:85-7.4.

HISTORY:
Amended by R.2009 d.286, effective September 21, 2009.
See: 41 N.J.R. 1551(a), 41 N.J.R. 3407(b).

In (a) and (b)2, substituted "biennial" for "annual"; in (b)4, updated the N.J.A.C. reference and inserted "in the form of an affidavit of publication"; in (b)5, substituted "the" for "each" preceding "governing", "the relevant" for "regional" and "or the relevant" for ", county or regional", and inserted "for a municipal petitioner"; in (b)10iv, substituted "a biennial" for "an annual" twice; in (e), (g) and the introductory paragraph of (j), updated the N.J.A.C. reference; in (l), substituted "45" for "60"; and in (m), substituted "(l)" for "(j) or (k)".

NJAC 5:85-8.1 State Plan Policy Map

(a) The official map of the State Development and Redevelopment Plan is entitled the "State Plan Policy Map" and is comprised of a series of maps encompassing the geographic area of the State of New Jersey.

(b) Any other graphic representation, at any scale, of delineations and other pertinent data contained on the State Plan Policy Map that is included in the State Development and Redevelopment Plan or any other document, is for illustrative purposes only and is not to be considered the official map of the State Development and Redevelopment Plan as outlined in (a) above.

HISTORY:
Amended by R.2002 d.12, effective January 7, 2002.

See: 33 New Jersey Register 1511(a), 34 New Jersey Register 285(a).
Rewrote the section.

Amended by R.2004 d.186, effective May 17, 2004.

See: 35 New Jersey Register 4001(a), 36 New Jersey Register 2490(c).
Rewrote (a); deleted former (b); recodified former (c) as (b) and substituted "State Development and Redevelopment Plan as outlined in (a) above" for "State Plan as outlined in (a) and (b) above".

NJAC 5:85-8.2 Purpose

In most cases, the State Plan Policy Map reflects the intergovernmental consensus arrived at during the cross-acceptance process. While the cross-acceptance process provides sufficient data, coordination and dialogue to prepare the State Plan Policy Map, new research, conditions and events may also suggest appropriate changes to the State Plan Policy Map. The purpose of this subchapter, therefore, is to create a process for amending the State Plan Policy Map after adoption of the State Development and Redevelopment Plan in order to accommodate such newly discovered or newly important conditions, situations or knowledge that emerge as the State Plan is applied by State and regional agencies, as well as municipalities and counties. In addition, it is necessary to address planning area changes and designation of centers, cores and nodes that evolve through the plan endorsement process.

HISTORY:
Amended by R.2002 d.12, effective January 7, 2002.

See: 33 New Jersey Register 1511(a), 34 New Jersey Register 285(a).
Rewrote the section.

Amended by R.2003 d.336, effective August 18, 2003.

See: 35 New Jersey Register 304(a), 35 New Jersey Register 1990(a), 35 New Jersey Register 3819(a).
In (a), inserted "State Plan Policy" preceding "Map" in the second sentence; in (c), amended the N.J.A.C. reference.

Amended by R.2004 d.186, effective May 17, 2004.

See: 35 New Jersey Register 4001(a), 36 New Jersey Register 2490(c).
Rewrote the section.

NJAC 5:85-8.3 Map amendments

(a) Except for areas that are subject to an endorsed plan, the State Planning Commission may initiate amendments to the State Plan Policy Map based on new information related to the goals, strategies, policies and delineation criteria of the State Plan provided that the new information alters the assumptions that were the basis for adopting the State Plan Policy Map for a particular area or areas. If the State Planning Commission determines that it should initiate a map amendment to the State Plan Policy Map, it shall prepare and distribute to appropriate municipalities, counties, State agencies and regional entities justification for requesting the State Plan Policy Map amendments and hold a public hearing on the proposed map amendment in the vicinity of where the proposed map amendment is located. Public notice of the hearing concerning the proposed map amendment shall be provided pursuant to N.J.A.C. 5:85-1.7(b).

(b) Any proposed change to the State Plan Policy Map by municipality, county, or regional agency shall be conducted through the plan endorsement process set forth in N.J.A.C. 5:85-7.

(c) Any other entity may submit a petition for an amendment to the State Plan Policy Map provided that the concerned area is not subject of an endorsed plan.

HISTORY:
Amended by R.2002 d.12, effective January 7, 2002.

See: 33 New Jersey Register 1511(a), 34 New Jersey Register 285(a).
In (a), substituted "State Plan Policy Map" for "Resource Planning and Management Map"; inserted new (b); recodified former (b) as (c) with substantive amendments.

Amended by R.2003 d.336, effective August 18, 2003.

See: 35 New Jersey Register 304(a), 35 New Jersey Register 1990(a), 35 New Jersey Register 3819(a).
Added a new (a); recodified former (a) as (b); recodified former (b) as (c) and amended the N.J.A.C. references throughout; recodified former (c) as (d).

Amended by R.2004 d.186, effective May 17, 2004.

See: 35 New Jersey Register 4001(a), 36 New Jersey Register 2490(c).
Rewrote the section.

Public Notice: Notice of Completed Petition for Map Amendment.
See: 36 New Jersey Register 4177(a).

Petition for Rulemaking.
See: 37 New Jersey Register 360(a).

NJAC 5:85-8.4 Procedures

(a) Petitions to amend the State Plan Policy Map shall be submitted to the Executive Director of the Office of Smart Growth, who shall serve as agent for the State Planning Commission in the administration of this subchapter. Ten copies and one electronic copy of the proposed map amendment petition documentation required under (b)1 and 8 below shall be submitted.

(b) A petition to amend the State Plan Policy Map shall include at a minimum:

1. Petitioner's name, address and telephone number, including the same information for the duly authorized agent, if any, who will represent the petitioner, with proof of authorization;

2. A statement describing the interest of the entity or individual submitting the petition in the land area under consideration, including, at a minimum:

i. For a State agency, its public policy (planning or regulatory) interests; and

ii. For an entity or an individual, his, her or its financial, ownership or contractual interests and a description of any pertinent regulatory actions occurring during the immediate past five years or planned/anticipated in the next three years regarding the use of the property;

3. A statement describing:

i. How the amendment promotes local, regional and State goals and objectives;

ii. How the amendment will impact public sector decisions; and

iii. The reason(s) why the amendment cannot await the next revision of the State Development and Redevelopment Plan;

4. A report describing:

i. How the proposed amendment is consistent with the provisions of the State Development and Redevelopment Plan and any adjoining municipal, county or regional plan endorsed by the State Planning Commission, citing the pertinent provisions in each plan; and

ii. How the proposed amendment helps each municipality, county and regional agency impacted by the proposed amendment achieve consistency with the State Development and Redevelopment Plan, and any adjoining municipal, county or regional plan endorsed by the State Planning Commission;

5. The current and proposed State Plan Policy Map boundaries shall be depicted on drafting film at a scale of 1:24,000 and corresponding to the United States Geological Survey (U.S.G.S.) 7.5 minutes topographic quadrangle maps or in digital files conforming to national standards of 1:24,000 scale accuracy and as provided in the Plan Endorsements Guidelines established by the State Planning Commission;

6. Proper authorization and endorsement as follows:

i. For a State agency, the petition shall include a transmittal letter on letterhead from the departmental Commissioner or Secretary requesting consideration of the petition;

ii. For a private entity, the petition shall include a certified copy of the authorization to submit the petition; and

iii. For an individual, at the discretion of the petitioner, the petition may include endorsements of the amendment by public and private organizations;

7. Documentation that the public notice requirements at N.J.A.C. 5:85-1.7(g) have been met for the proposed map amendment; and

8. A list of documents being submitted.

(c) The Executive Director of the Office of Smart Growth shall forward one copy of the proposed map amendment to the appropriate municipal and county governing bodies and planning boards for their view and comment. If no comment is received within 90 days after mailing said petition, the municipality or county shall be deemed to have no comment on the proposed map amendment.

(d) If the State Planning Commission initiates a map amendment, the Executive Director of the Office of Smart Growth shall notify the appropriate municipal and county governing bodies and planning boards for their review and comment. If no comment is received within 90 days after mailing said notice, the municipality or county shall be deemed to have no comment on the proposed map amendment.

(e) The Office of Smart Growth shall hold a public hearing in an appropriate jurisdiction to receive testimony on the petition or map amendment initiated by the State Planning Commission. Notice of this hearing shall be provided pursuant to N.J.A.C. 5:85-1.7(b).

(f) The State Planning Commission may, at its discretion, appoint a subcommittee to hear and review proposed map amendments, including those initiated by the State Planning Commission. Only the State Planning Commission may act on a proposed map amendment petition.

HISTORY:
Amended by R.2002 d.12, effective January 7, 2002.

See: 33 New Jersey Register 1511(a), 34 New Jersey Register 285(a).
Rewrote the section. Recodified (f) through (i) with amendments as N.J.A.C. 17:32-8.6
Amended by R.2003 d.336, effective August 18, 2003.

See: 35 New Jersey Register 304(a), 35 New Jersey Register 1990(a), 35 New Jersey Register 3819(a).
Rewrote the section.
Recodified from N.J.A.C. 5:85-8.5 and amended by R.2004 d.186, effective May 17, 2004.

See: 35 New Jersey Register 4001(a), 36 New Jersey Register 2490(c).
Rewrote the section. Former N.J.A.C. 5:85-8.4, Notification of petition filing, repealed.

NJAC 5:85-8.5 Determination of completeness and period of review

(a) Within 60 days of the receipt of a petition for a proposed map amendment, the Executive Director of the Office of Smart Growth shall inform the petitioner, any municipality and county impacted by the proposed map amendments, and the State Planning Commission, in writing, whether the proposed map amendment petition is complete and complies with this subchapter.

(b) In cases where the Executive Director of the Office of Smart Growth finds that the petition for a proposed map amendment is not complete or has not been submitted in accordance with this subchapter, the Executive Director shall inform the petitioner in writing within 60 days after receipt of the petition for a proposed map amendment of the deficiencies in the petition. If a corrected petition for a proposed map amendment is not resubmitted within 90 days after receipt of the Executive Director's notice, or is resubmitted incorrectly, the petition for a proposed map amendment will be considered withdrawn without prejudice and the petitioner so notified. No further action by the Executive Director will be taken until a new or revised petition for a proposed map amendment is submitted in accordance with N.J.A.C. 5:85-8.4. The petitioner shall provide notice of any such withdrawal in accordance with N.J.A.C. 5:85-1.7(g). Notice of any such withdrawal shall be provided by the Office of Smart Growth to those interested persons and organizations who have registered with the Office of Smart Growth in accordance with N.J.A.C. 5:85-1.6(b).

(c) In cases where the Executive Director of the Office of Smart Growth finds that the petition for a proposed map amendment is submitted in accordance with this subchapter, or is resubmitted correctly pursuant to

(b) above, the Executive Director shall provide public notice in accordance with N.J.A.C. 5:85-1.7(h) and send copies of the petition for a proposed map amendment, plan(s) and supporting documents to the State agencies represented on the State Planning Commission and any other relevant State or Federal agency.

(d) The relevant State and Federal agencies receiving copies of the petition for a proposed map amendment pursuant to (c) above shall provide comments to the Executive Director within 45 days.

(e) Within the State and Federal agency 45-day review period, the Office of Smart Growth may hold a public hearing in an appropriate jurisdiction to receive testimony on the petition for a proposed map amendment with public notice provided pursuant to N.J.A.C. 5:85-1.7(b). The Office of Smart Growth shall hold a public hearing in an appropriate jurisdiction to receive testimony on the map amendment petition with public notice provided pursuant to N.J.A.C. 5:85-1.7(b) if it receives a written request for such a hearing from the governing body of any municipality or county with areas impacted by the petition or a total of at least 10 requests from other governmental agencies, advocacy groups or individuals with a demonstrated interest in the petition within 10 days of the Office of Smart Growth providing public notice pursuant to (c) above that a completed map amendment petition has been submitted.

(f) The Executive Director of the Office of Smart Growth may request additional information and, at the discretion of the Executive Director, the 90-day review period set forth in N.J.A.C. 5:85-8.6(a) may be extended for an additional 45 days after receipt of the requested information. Public notice of any such extensions shall be provided to the petitioner, to those interested persons and organizations who have registered with the Office of Smart Growth in accordance with N.J.A.C. 5:85-1.6(b) and posted on the Office of Smart Growth website.

HISTORY:
New Rule, R.2004 d.186, effective May 17, 2004.

See: 35 New Jersey Register 4001(a), 36 New Jersey Register 2490(c).
Former N.J.A.C. 5:85-8.5, Procedures, recodified to N.J.A.C. 5:85-8.4.

NJAC 5:85-8.6 Determination of the Executive Director and State Planning Commission

(a) In cases where the Executive Director determines that the petition for the proposed map amendment is submitted in accordance with this subchapter, the Executive Director shall determine within 90 days after the conclusion of the State and Federal agency review period whether the petition for the proposed map amendment is consistent with the State Development and Redevelopment Plan. The Executive Director shall prepare a report containing detailed findings and conclusions concerning the petition for the proposed map amendment. The Executive Director shall provide notice of the report pursuant to N.J.A.C. 5:85-1.7(h) and forward the report to the petitioner, any municipality and county impacted by the petition for the proposed map amendment, and the State Planning Commission and post the report on the Office of Smart Growth website. If the Executive Director determines that the petition for the proposed map amendments is consistent with the State Development and Redevelopment Plan, the Executive Director shall recommend that the map amendment petition be approved by the State Planning Commission. If the Executive Director determines that the petition for a proposed map amendment is inconsistent with the State Development and Redevelopment Plan, the Executive Director shall either recommend the necessary changes that should be required by the State Planning Commission to make the proposed map amendment consistent with the State Development and Redevelopment Plan or recommend that the proposed map amendment petition be denied by the State Planning Commission.

(b) The State Planning Commission and any duly authorized subcommittee shall review the Executive Director's determination that the petition for the proposed map amendment is complete and the determination as to whether the petition for the proposed map amendment is consistent with the State Development and Redevelopment Plan. Within 60 days after receipt of the recommendation, the State Planning Commission shall affirm, revise or reverse the Executive Director's determination of the petition for the proposed map amendment based on its determination whether the proposed map amendment petition is consistent with the State Development and Redevelopment Plan.

(c) The Executive Director of the Office of Smart Growth shall, within 30 days after State Planning Commission action as set forth in (b) above, notify the petitioner in writing of the State Planning Commission's determination, findings and recommendations regarding the petition for the proposed map amendment.

(d) Within 45 days of the State Planning Commission determining whether the petition for the proposed map amendment is complete and consistent with the State Development and Redevelopment Plan, the Executive Director of the Office of Smart Growth shall place notice of said determination in the New Jersey Register and provide notice pursuant to N.J.A.C. 5:85-1.7(i).

HISTORY:
New Rule, R.2004 d.186, effective May 17, 2004.

See: 35 New Jersey Register 4001(a), 36 New Jersey Register 2490(c).
Former N.J.A.C. 5:85-8.6, When the Director of the Office of State Planning may disapprove petitions, repealed.

NJAC 5:85-8.7 Extension of time requirements

The Executive Director of the Office of Smart Growth may extend, up to an additional 60 days, the time allowed for certain actions under this subchapter in the event that the number of requests for State Plan Policy Map amendments exceeds the resources of the Office of Smart Growth to process those requests in accordance with this subchapter. Public notice of any such extensions shall be provided to the petitioner, to those interested persons and organizations who have registered with the Office of Smart Growth in accordance with N.J.A.C. 5:85-1.6(b) and posted on the Office of Smart Growth website..

HISTORY:
Recodified from N.J.A.C. 17:32-8.7 and amended by R.2002 d.12, effective January 7, 2002.

See: 33 New Jersey Register 1511(a), 34 New Jersey Register 285(a).
Rewrote the section.

Recodified from N.J.A.C. 5:85-8.9 and amended by R.2004 d.186, effective May 17, 2004.

See: 35 New Jersey Register 4001(a), 36 New Jersey Register 2490(c).
Rewrote the section. Former N.J.A.C. 5:85-8.7, Disposition of minor map amendments, repealed.

NJAC 5:85-8.8 (Reserved)

HISTORY:
Recodified from N.J.A.C. 17:32-8.6 and amended by R.2002 d.12, effective January 7, 2002.

See: 33 New Jersey Register 1511(a), 34 New Jersey Register 285(a).
Rewrote the section.
Amended by R.2003 d.336, effective August 18, 2003.

See: 35 New Jersey Register 304(a), 35 New Jersey Register 1990(a), 35 New Jersey Register 3819(a).
Rewrote (a); added (d).
Repealed by R.2004 d.186, effective May 17, 2004.

See: 35 New Jersey Register 4001(a), 36 New Jersey Register 2490(c).
Section was "Notification of disposition".

NJAC 5:85-8.9 (Reserved)

HISTORY:
Repealed by R.2004 d.186, effective May 17, 2004.

See: 35 New Jersey Register 4001(a), 36 New Jersey Register 2490(c).
Former 5:85-8.9, Extension of time requirements, recodified as 5:85-8.7.

NJAC 5:85-8.10 (Reserved)

HISTORY:
New Rule, R.2002 d.12, effective January 7, 2002.

See: 33 New Jersey Register 1511(a), 34 New Jersey Register 285(a).
Repealed by R.2004 d.186, effective May 17, 2004.

See: 35 New Jersey Register 4001(a), 36 New Jersey Register 2490(c).
Section was "State agency notification of amendment to the State Plan Policy Map".

Executive Order #38 Governor James E. McGreevey
Orders and directs various State agencies and the targeted utilization of available State resources to ensure smart growth and the conservation of undeveloped regions of the State

WHEREAS, we are faced with a challenge of accommodating continued growth in New Jersey while ensuring that the State's citizens retain a quality of life that is not diminished by congestion and sprawl; and

WHEREAS, we will only succeed in this planning effort if we adhere to smart growth principles - in particular, we must stop subsidizing sprawl, focus on redevelopment and push for smarter regulations; and

WHEREAS, the redevelopment of designated smart growth areas complements important public policy goals of revitalizing the State's urban, suburban and rural centers and preventing endless sprawl, while avoiding the degradation of natural and agricultural resources, the impairment of environmental quality, increases in local property taxes, and the overburdening of local transportation systems and other infrastructure; and

WHEREAS, various State agencies have important roles to play in the redevelopment of localities that should be redeveloped because of their proximity to existing public services and infrastructure; and

WHEREAS, coordination among these agencies and the targeted utilization of available State resources are critical to ensuring smart growth and the conservation of undeveloped regions of the State;

NOW, THEREFORE, I, JAMES E. McGREEVEY, Governor of the State of New Jersey, by virtue of the authority vested in me by the Constitution and by the Statutes of this State, do hereby ORDER and DIRECT:

  • 1. The Housing and Mortgage Finance Agency is hereby directed to develop and implement a self-sufficient homebuyer's incentive program for first-time purchasers of homes in areas designated for smart growth.

  • 2. In order to encourage redevelopment, the Economic Development Authority (EDA) shall make short-term loans available to developers to offset pre-development funding gaps and funding requirements for brownfields remediation. These loans shall be made at such rates and upon such terms as the EDA Board of Directors deems appropriate.

  • 3.The Commerce and Economic Growth Commission (Commerce Commission) shall continue to act as a single point of entry for businesses and developers seeking to locate or expand in New Jersey. The Commerce Commission shall continue to provide financial incentives and/or information, consistent with its current programmatic responsibilities, to existing or prospective businesses or developers concerning available incentives for business expansion, relocation or related development projects.

  • 4. In consultation with the Commerce Commission, the Office of Smart Growth within the Department of Community Affairs (DCA) shall establish a reasonable priority of projects and recommend investments through a "super-incentives" approach that targets existing resources for projects in areas designated for smart growth. This initiative shall coordinate, in a unified approach, all of the programs currently administered by relevant state agencies. DCA shall identify a set of permissive criteria that will provide participating, qualifying municipalities priority consideration under this unified approach.

  • 5. Relevant State agencies and the Office of Administrative Law shall develop and implement a system that will give priority to applications and appeals involving development and redevelopment in areas designated for smart growth.

  • 6. DCA shall prioritize existing resources in order to enhance technical support to municipal zoning and planning boards that commit to smart growth principles.

  • 7. DCA shall ensure timely inspections on a Statewide basis and implement a pilot program providing for immediate DCA inspection of projects in areas designated for smart growth whenever local code officers fail to meet the standards of timeliness set in the Uniform Construction Code.

  • 8. DEP, in consultation with interested State agencies, municipal governments, and affected constituents, shall initiate a comprehensive program of regulatory reforms that will increase the predictability of regulatory outcomes, facilitate smart growth, strengthen regulatory protection of public health, safety and significant environmental resources, and integrate the assumptions and planning of other agencies. DEP shall closely coordinate this effort with the Office of Smart Growth.

  • 9. DEP shall establish a mechanism, including appropriate safeguards, allowing the use of pre-qualified consultants to perform scientific and other professional reviews required of developers in order to expedite project review and implementation for brownfields redevelopment and in other smart growth areas as determined in coordination with the Office of Smart Growth.

  • 10. DEP shall develop and implement a program utilizing mitigation fees, accounts and other market approaches that will expedite the restoration of environmentally impacted properties, facilitate regulatory review, reduce uncertainty and promote cost-effective and environmentally sound approaches to smart growth.

  • 11. The Environmental Infrastructure Trust, under the direction of the DEP Commissioner, shall establish and implement a program to reduce infrastructure finance costs in designated smart growth areas in coordination with the Office of Smart Growth.

  • 12. In selected redevelopment areas (Asbury Park and Camden have been identified to date), DCA is hereby directed, in cooperation with municipalities, to develop a model approach that allows DCA to (a) serve as a point of contact for all permit applications to State agencies, track permit applications and expedite approval; (b) act as liaison between developer and State agencies granting approvals and provide the developer with status reports on the progress of State agency approvals; (c) assist in identifying features of the project that will require State agency approvals; (d) investigate areas where projects may require special consideration under State rules and assist in offering possible solutions; (e) review plans and specifications for compliance with the Uniform Construction Code; (f) issue building permits (verifying that all prior approvals have been granted) and (g) perform all necessary inspections under the Uniform Construction Code.

  • 13. The Department of Transportation (DOT), together with appropriate independent and bi-state authorities, shall coordinate and consult regarding the planning and implementation of transportation infrastructure. DOT shall develop a Statewide master capital plan encompassing input from all transportation authorities.

  • 14. DOT shall work with the DEP and all other State agencies, as required, to implement a permit coordination program to expedite capital transportation projects in designated smart growth areas.

  • 15. DOT shall review the processing of permit applications, including highway access permit applications, and target resources to such applications that are located in areas designated for smart growth.

  • 16. DOT is directed to work with New Jersey Transit and other transportation entities throughout the State to develop and maintain a master list of park-and-ride lots, including their parking capacity, at mass transit facilities and transportation centers in order to identify the capacity needs related thereto and to implement in its upcoming annual Transportation Capital Program a demonstrable commitment toward solving the parking capacity needs at the State's mass transit facilities.

  • 17. This Executive Order shall take effect immediately.

GIVEN,GIVEN, under my hand and seal, this day of in the Year of Our Lord, Two Thousand and Two, and of the Independence of the United States, the Two Hundred and Twenty-Seventh.

/s/ James E. McGreevey
Governor

Executive Order #4 Governor James E. McGreevey
Creates a Smart Growth Policy Council

WHEREAS, it is the law and policy of the State of New Jersey to promote smart growth and to reduce the negative effects of sprawl and disinvestments in older communities; and

WHEREAS, the State Legislature has declared that New Jersey requires sound and integrated Statewide planning and the coordination of Statewide planning with local and regional planning in order to conserve the State's natural resources, revitalize its urban centers, protect the quality of its environment, and provide needed housing and adequate public services at a reasonable cost while promoting beneficial economic growth, development and renewal; and

WHEREAS, significant economies, efficiencies and savings in the development process would be realized by private sector enterprise and by public sector development agencies if the several levels of government would cooperate in the preparation of and adherence to sound and integrated plans; and

WHEREAS, it is in the public interest to encourage development, redevelopment and economic growth in locations that are well situated with respect to present or anticipated public services and facilities, giving appropriate priority to the redevelopment, repair, rehabilitation or replacement of existing facilities and to discourage development where it may impair or destroy natural resources or environmental qualities that are vital to the health and well-being of the present and future citizens of this State; and

WHEREAS, a sound and comprehensive planning process will facilitate the provision of equal social and economic opportunity so that all of New Jersey's citizens can benefit from growth, development and redevelopment; and

WHEREAS, the State Planning Commission is charged with overseeing a cooperative planning process that involves the State, county and local governments as well as other public and private sector interests to enhance prudent and rational development, redevelopment and conservation policies and the formulation of sound and consistent regional plans and planning criteria and providing local governments in this State with the technical resources and guidance necessary to assist them in developing land use plans and procedures which are based on sound planning information and practice, and to facilitate the development of local plans which are consistent with State plans and programs; and

WHEREAS, the State Planning Commission is charged with overseeing a cooperative planning process that involves the State, county and local governments as well as other public and private sector interests to enhance prudent and rational development, redevelopment and conservation policies and the formulation of sound and consistent regional plans and planning criteria and providing local governments in this State with the technical resources and guidance necessary to assist them in developing land use plans and procedures which are based on sound planning information and practice, and to facilitate the development of local plans which are consistent with State plans and programs; and

WHEREAS, the State Development and Redevelopment Plan, commonly known as the "State Plan," embodies the State's official land use and development policies, to guide public investment, infrastructure development, economic growth, urban revitalization, sound housing and transportation policy, agriculture promotion and preservation, energy policy, and preservation of natural, environmental, coastal, historic and cultural resources; and

WHEREAS, despite these efforts, New Jersey still suffers the effects of poor land use planning and decision-making such as increased commuter times, loss of open space, loss of natural resources, declining property values in distressed areas, increasing property taxes, escalating State costs associated with aiding distressed municipalities and supporting sprawling development.

WHEREAS, the principles of smart growth would focus new growth into redevelopment of our older urban and suburban areas, protect existing open space, conserve natural resources, increase transportation options and transit availability and reduce automobile traffic and dependency, stabilize property taxes, and provide affordable housing; and

WHEREAS, plan endorsement -- meaning a process by which the State Planning Commission certifies consistency between municipal or regional planning and the State Plan - offers the potential of fostering municipal and regional implementation of the principles of smart growth; and

WHEREAS, various State agencies, including independent authorities and bi-state agencies, have not maximized the potential of incorporating the fundamental elements of the State Plan and the general principles of smart growth into their functional plans or regulations;

NOW, THEREFORE, I, JAMES E. McGREEVEY, Governor of the State of New Jersey, by virtue of the authority vested in me by the Constitution and by the Statutes of this State, do hereby ORDER and DIRECT:

  • 1. To ensure that State agencies incorporate the principles of smart growth and the State Plan into their functional plans and regulations, there shall be created in the Office of the Governor a Smart Growth Policy Council.

  • 2. The Council shall consist of the following: the Secretary of Agriculture; the President of the Board of Public Utilities; the Treasurer; the Chief Executive Officer of the Commerce and Economic Growth Commission; the Commissioners of the Departments of Community Affairs, Education, Environmental Protection, and Transportation; the Executive Directors of New Jersey Transit, and the Economic Development Authority, and the Chief of the Authorities Unit. The Council shall be chaired by a senior policy advisor from the Governor's staff. The chairperson shall be supported by appropriate planning staff as needed from the various executive departments.

  • 3.The Council shall meet bi-monthly or as needed.

  • 4. The Council shall have the following responsibilities, powers and duties:

  • a. Develop and implement inter- and intra-departmental procedures and programs to assure that State agency functional plans, programs, and projects are consistent with and serve to the principles of smart growth and implement the State Plan.
    b. Recommend legislative and administrative changes to advance the principles of smart growth and the State Plan.
    c. Ensure that State grants, incentives or other funding issued to promote economic activity or otherwise by any agency promote consistency with the principles of smart growth and the State Plan.
    d. Ensure that State transportation and infrastructure spending and regulation are consistent with the principles of smart growth and the State Plan.
    e. Ensure that school construction initiatives promote smart growth, open space, and revitalization of communities.
    f. Coordinate and consolidate State redevelopment initiatives especially those involving Brownfields to reduce points of entry for municipalities and developers.
    g. Provide an interdepartmental venue for resolution of conflicts regarding specific private and public sector projects that would either advance or undermine the implementation of the State Plan, and to expedite projects that would serve to implement the Plan.
    h. Develop initiatives to assist local government and communities to achieve smart growth objectives.
    i. Review water resource capacity in the State to reduce conflicts between development and the protection of water and natural resources.

  • 5. In cases of statewide significance involving the integrity of the State Plan and the goals of smart growth, the State Attorney General is hereby directed, in consultation with the Smart Growth Policy Council, to defend and/or intervene on behalf of municipalities, counties or regional planning entities that have adopted plans that have been endorsed by the State Planning Commission or that are consistent with major smart growth objectives.

  • 6. Prior to the adoption, amendment or repeal of any rule adopted pursuant to Section 4(a) of the Administrative Procedure Act, each agency shall include a Smart Growth Impact Statement, which shall describe the impact of the proposed rule on the achievement of smart growth and implementation of the State Plan. The Smart Growth Policy Council shall also recommend guidelines for the state agencies to regularly review and consider the smart growth impacts of their major actions.

  • 7. The agencies represented on the Council shall undertake a review of their respective spending programs and rules and regulations to ensure that their actions are consistent with the principles of smart growth and the State Plan and report to the Council on their findings.

  • 8. This Executive Order shall take effect immediately.

GIVEN,GIVEN, under my hand and seal, this 31st day of January in the Year of Our Lord, Two Thousand and Two and of the United States, the Two Hundred and Twenty-Sixth.

/s/ James E. McGreevey
Governor

Executive Order #71 Governor Christine Todd Whitman
Rescinds EO15, transfers Office of the Ombudsman to Dept of Commerce and establishes an Account Management System

This executive order rescinded by EO #71 Whitman.

WHEREAS, the Office of the Business Ombudsman was created to assist businesses in dealing efficiently with various State regulations governing various commercial, industrial and residential projects or activities in this State; and

WHEREAS, the Office of the Business Ombudsman is presently located in the Department of State pursuant to Executive Order No. 15 (1994); and

WHEREAS, the Department of Commerce and Economic Development will, commencing on or about July 1, 1997, establish an Account Management System (hereinafter referred to as "AMS"); and

WHEREAS, the AMS is a proactive, integrated business retention and expansion strategy focused on providing professional, coordinated services to existing New Jersey businesses so that they remain competitive, and become more competitive, in their respective markets; and

WHEREAS,WHEREAS, there is a need for a single point of operations to exclusively coordinate an efficient and timely process for submission, evaluation and resolution of applications for business permits, licenses, certificates and other approvals, and for the maintenance and attraction of business in New Jersey; and

WHEREAS,WHEREAS, the establishment of the AMS dictates that the Office of the Business Ombudsman will more efficiently serve the business community if it is located in the Department of Commerce;

NOW, THEREFORE, I, CHRISTINE TODD WHITMAN, Governor of the State of New Jersey, by virtue of the authority vested in me by the Constitution and by the Statutes of this State, do hereby ORDER and DIRECT:

  • 1. Executive Order No. 15 is hereby rescinded effective July 1, 1997.

  • 2. All functions of the Office of the Business Ombudsman previously established in the Department of State by Executive Order No. 15 shall be transferred to the Department of Commerce and Economic Development, and may be merged with departmental operations including the Account Management System, as deemed appropriate by the Commissioner of the Department of Commerce and Economic Development.

  • 3. The Commissioner of the Department of Commerce and Economic Development, or his designee, shall replace the Secretary of State on the Cabinet Committee on Permit Coordination (hereinafter "Cabinet Committee"), which Cabinet Committee was reconstituted pursuant to Executive Order No. 100 (Kean). Moreover, the Commissioner, or his designee, shall replace the Secretary of State as Chairperson of the Cabinet Committee. The Commissioner shall appoint an Executive Director of the Cabinet Committee.

  • 4. This Order shall take effect July 1, 1997.

GIVEN,GIVEN, under my hand and seal, this 27th day of June in the Year of Our Lord, One Thousand Nine Hundred and Ninety-Seven, and of the Independence of the United States, the Two Hundred and Twenty-First.

/s/ Christine Todd Whitman
Governor
Executive Order #15 Governor Christine Todd Whitman
Creates the Office of the Business Ombudsman to be located in the Department of State with the responsibility of directing a comprehensive effort to assist businesses in dealing efficiently with State regulations.

This executive order rescinded by EO #71 Whitman.

WHEREAS, there has been a marked increase in the number and complexity of permits, licenses, certificates and other approvals that businesses and all other sectors of the economy must obtain from an increasing variety of State agencies to undertake various commercial, industrial, and residential projects or activities in the State; and

WHEREAS,, this expanding maze of regulation has made the cost of doing business in the State higher than in other states in many instances; and

WHEREAS, the inefficiencies resulting from the excessive cost of regulation have impeded the overall development of the economy and the growth of the State's individual businesses; and

WHEREAS, such inefficiencies have also discouraged the location of new businesses and the expansion of existing ones in the State;

WHEREAS, the combined effects of the inefficiencies have adversely affected the business climate in the State; and

WHEREAS, it is possible to uphold existing standards for the public health, safety and welfare while at the same time expediting compliance with regulations; and

WHEREAS, State government must provide leadership in transforming the State business climate into one that is supportive of and open towards business; and

WHEREAS, there is a need for a single office to coordinate exclusively an efficient and timely process for submission, evaluation, and resolution of applications for business permits, licenses, certificates and other approvals;

NOW, THEREFORE, I, CHRISTINE TODD WHITMAN, Governor of the State of New Jersey, by virtue of the authority vested in me by the Constitution and by the Statutes of this State, do hereby ORDER and DIRECT:

  • 1. There is hereby created the Office of the Business Ombudsman (hereinafter "Office") to be located in the Department of State.
  • 2. The Secretary of State shall serve as the Business Ombudsman or appoint her designee to this position.
  • 3. The Business Ombudsman shall be empowered to lead the Office in its primary responsibility of directing a comprehensive effort to assist businesses in dealing efficiently with State regulations.
  • 4. Specifically, the Office shall function to provide guidance to persons who inquire about business permits, licenses, certificates and other business-related approvals. Any such similar functions of the Office of Business Advocacy in the Department of Commerce and Economic Development shall be transferred to the Office. The files, books and records of the Office of Business Advocacy that are relevant to its function of providing guidance to persons who inquire about business permits, licenses, certificates and other approvals shall be transferred from the Office of Business Advocacy to the Office.
  • 5. Consistent with the consolidation of the aforementioned functions of the Office of Business Advocacy into the Office, the Secretary of State, or her designee, shall replace the Chief of the Office of Business Advocacy on the Cabinet Committee on Permit Coordination (hereinafter "Cabinet Committee"), which Cabinet Committee was reconstituted pursuant to Executive Order No. 100 of Governor Thomas H. Kean. Moreover, the Secretary of State, or her designee, shall replace the Commissioner of Commerce and Economic Development as Chairperson of the Cabinet Committee, and the Office shall assume the roles performed by the Office of Business Advocacy for the Cabinet Committee. The Secretary of State shall appoint an Executive Director of the Cabinet Committee.
  • 6. All functions currently performed by the Office of Business Advocacy that do not relate to providing guidance to persons who inquire about business permits, licenses, certificates and other business-related approvals shall remain in said Office of Business Advocacy in the Department of Commerce and Economic Development.
  • 7. The Office is hereby directed to provide guidance to persons who inquire about business permits, licenses, certificates and other approvals that are required to do business in this State.
  • 8. The Business Ombudsman is hereby authorized to appoint and remove such staff as may be required to fulfill the mandates of this Order, subject to the provisions of Title 11A (Civil Service Act) of the Revised Statutes, when relevant, other applicable statutes, and the appropriations limit for the Office. Any persons appointed by the Business Ombudsman under this Order shall be designated employees of the Department of State.
  • 9. The Business Ombudsman shall maintain the Office and such other quarters as deemed necessary to the proper functioning of the Office.
  • 10. The Office is authorized to call upon any department, office, division or agency of this State to supply it with data and other information or assistance as deemed necessary to discharge the duties of the Office under this Order. Each department, office, division or agency of this State is hereby required, to the extent not inconsistent with law, to cooperate with the Business Ombudsman and provide such information and assistance as is necessary to accomplish the purpose of this Order. Notwithstanding anything in this Order to the contrary, the Office shall not supplant the function of any department, office, division or agency of the State to review and approve any governmental permit, license, certificate or other approvals.
  • 11. This Order shall take effect immediately.

GIVEN, under my hand and seal, this 5th day of April in the Year of Our Lord, one thousand nine hundred and ninety-four, and of the Independence of the United States, the two hundred and eighteenth.

/s/ Christine Todd Whitman
Governor

Executive Order #114 Governor James J. Florio
Adoption and Incorporation of policies which correspond to the State Plan and focus on encouraging growth and development at locations and in patterns recommended by the strategies and policies contained in the Plan.

WHEREAS,in 1985, the New Jersey Legislature enacted the State Planning Act (N.J.S.A. 52:18A-196 et seq.) calling for the creation of a State Development and Redevelopment Plan (State Plan) to be used as a tool for assessing suitable locations for infrastructure, housing, economic growth and conservation to bring about rational, managed growth and development in all regions of the State; and

WHEREAS, the State Plan was adopted by the State Planning Commission in June 1992, after five years of discussion and negotiation with the citizens of New Jersey in a widely regarded "cross-acceptance" process and, while the State Plan is not regulatory, it does provide necessary guidance for responsible stewardship of the State's natural resources and open space; and

WHEREAS, in adopting the State Planning Act, the Legislature declared that the State requires sound and integrated statewide planning to conserve its natural resources, revitalize its urban centers, protect the quality of its environment and provide affordable housing and adequate public services at reasonable cost while promoting beneficial economic growth, development and renewal; and

WHEREAS, the State Planning Act recognizes that the historic haphazard patterns of growth have threatened the quality of life in New Jersey and have failed to provide for the revitalization of our urban centers, sufficient affordable housing stock, or adequate conservation of natural resources, and therefore, requires the adoption of a coordinated, integrated and comprehensive plan for growth, development, renewal and conservation of all regions of the State and identifies areas for growth, agriculture, open space, and other appropriate designations; and

WHEREAS, the State Plan provides a framework for streamlining permitting procedures and cost savings for the mutual benefit of the public and private sectors; and

WHEREAS, the State Plan is based upon an economic impact assessment which estimates that full implementation can save taxpayers $1.3 billion in capital infrastructure costs over 20 years and up to $400 million annually in operating costs statewide; and

WHEREAS, the State Planning Commission has entered Memoranda of Understanding with the Capital Budgeting and Planning Commission, the Council on Affordable Housing, the Department of Environmental Protection and Energy, the Department of Transportation and New Jersey Transit, establishing successful cooperative relationships directed toward reaching the goals of the State Plan; and

WHEREAS, success in achieving the rational development goals of the State Planning Act, and the substantial cost savings which can be derived through full implementation of the State Plan, requires broad based acceptance and implementation of the State Plan's goals and mechanisms by all State agencies and departments, and coordinated planning among the State departments and agencies and local governments;

NOW, THEREFORE, I, JAMES J. FLORIO, Governor of the State of New Jersey, by virtue of the authority vested in me by the Constitution and by the Statutes of this State, do hereby ORDER and DIRECT:

  • 1. All State Departments and agencies shall:

    a. Adopt and incorporate as part of their agency programmatic mission, policies which comport with the State Plan and act in a coordinated fashion in investing resources at the State and local level in implementing the State Plan and achieving their programmatic missions.
    b. In their joint endeavors to implement the State Plan together with the State Planning Commission, encourage growth and development and direct infrastructure to locations and in patterns recommended by the strategies and policies contained in the State Plan.
    c. Adopt policies which facilitate the establishment of development "centers" and encourage development which is consistent with the policy objectives of "planning areas" which constitute the "resource and management structure" of the State Plan.
    d. Participate and cooperate with the Office of State Planning in its review and assessment of the functional plans of the departments or agencies, including, but not limited to water supply, natural resources, air quality, energy, open space and historic conservation, affordable housing, transportation, airport systems and rail systems, and encourage interdepartmental and interagency participation on advisory bodies related to policy and plan development to assure coordination in the implementation of the State Plan.
    e. Support the Office of State Planning in the fulfillment of its statutory responsibilities with respect to its planning activities, including but not limited to, the legislatively mandated infrastructure needs assessment, monitoring, and evaluation program.
    f. Collaborate in data base development and the exchange of information among departments and agencies, and establish appropriate institutional mechanisms, including data compatibility, to assure that data base development and the exchange of information occurs.
    g. Coordinate efforts with the Office of State Planning to assist municipalities in gaining designation of development "centers."
    h. Coordinate efforts with the Office of State Planning to assist distressed cities in developing Strategic Revitalization Plans.
    i. Report to the Governor and Office of State Planning on June 1, 1994, and every six months thereafter, on their efforts in furtherance of this Order.

  • 2. All State agencies and departments are authorized and directed, to the extent not inconsistent with law, to cooperate with and provide support to the Office of State Planning and State Planning Commission and furnish them with such information, including statistical and planning data, and assistance necessary to accomplish the purposes of this Order.

  • 3. This Order shall take effect immediately.

GIVEN, under my hand and seal this 11th day of January in the Year of Our Lord, One Thousand Nine Hundred and Ninety Four, and of the Independence of the United States,the Two Hundred and eighteenth.

/s/ James J. Florio
Governor