• Appellate Division Upholds Invalidation of Local Stormwater Ordinance

    On March 3, 2021, the Appellate Division issued an opinion affirming a trial court’s previous determination that a stormwater ordinance adopted by the Borough of Haddonfield exceeded the authority vested in the Borough by the Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq. (MLUL) and the Residential Site Improvement Standards, N.J.A.C. 5:21-1.1, et seq  (RSIS). 

    The Builders League was represented by its legal counsel Richard Hoff of Bisgaier Hoff.
    The case arose from a challenge initiated by Builders League of South Jersey (BLSJ) to a Haddonfield Ordinance that required in-depth stormwater review and mitigation measures to ensure compliance with the New Jersey Department of Environmental Protection’s (NJDEP) stormwater management regulations. 
    However, unlike NJDEP regulations which limited such review and compliance to projects defined as “major developments,” requiring review pursuant to the MLIL, the Haddonfield ordinance applied to “all new homes… requiring a building permit.”  As a result, any applicant for a new single family within the Borough was subjected to the costly review and compliance measures of the Borough ordinance – measures that the NJDEP itself acknowledged should be reserved for only “major developments.”
    BLSJ’s challenge to the ordinance was two-fold.  First, BLSJ maintained that the Borough ordinance subjected detached or and two dwelling unit buildings to site plan review in violation of the express exemption provided to such units pursuant to the MLUL. 

    Further, BLSJ maintained that even if such review were permitted, the Borough was exceeding its delegated authority under the MLIUL to impose such review to projects that did not meet the threshold of “major development” under the NJDEP regulations.  In a comprehensive 43-page opinion, the trial court agreed with BLSJ on both counts and invalidated the Borough Ordinance. 

    The Borough appealed the trial court ruling and in its appeal was joined by New Jersey Future, Association for New Jersey Environmental Commissions, The Watershed Institute and Sustainable Jersey, all of which urged the Appellate Division to reverse the trial court’s determination.  The Appellate Division declined the Borough’s invitation. 
    For the reasons largely expressed by the trial court’s “comprehensive written opinion,” the Appellate Division joined in rejecting the Borough’s authority to adopt its sweeping stormwater ordinance.  In adding to the findings of the trial court, the Appellate Division reminded that municipal ordinance must derive their authority from the provisions of the MLUL and that “a municipality’s power to effectuate planning schemes … must be exercised in strict conformity with the delegating enactments – the MLUL,” citing New Jersey Shore Builders Association v. Twp. of Jackson, 401 N.J. Super. at 161 (quoting Toll Bros., Inc. v. Bd. Of Chosen Freeholders, County Of Burlington, 194 N.J. 223, 243 (2008)). In light of that proposition, the Appellate Division rejected the Borough’s attempt to rely on select provisions from NJDEP regulations to provide the enabling authority for their stormwater initiates. 

    In rebuking the Borough’s efforts to circumvent the limiting authority, the Appellate Division was clear:
    Nothing in the DEP’s stormwater management regulations allowed Haddonfield to violate the MLUL or RSIS by adopting an ordinance imposing stricter requirements than the requirements under the enabling legislation. 

    In fact, during the comment period prior to the DEP’s adoption of stormwater management regulations, the agency explained ‘a single-family dwelling on a single-family lot would not be subject to the requirements of [the regulations’ unless it falls under the definition of ‘major development.’”  Because the Ordinance exceeded Haddonfield’s authority under the MLUL, Judge Silverman-Katz properly concluded the Ordinance was invalid.
    With the Appellate Division’s March 3, 2021 decision, municipal ordinances that seek to expand the reach of NJDEP stormwater review and standards to projects not meeting the threshold for “major development,” like single family dwellings, are certainly suspect if not expressly ultra vires and unlawful. 


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