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Those Who Plan for Growth Should Plan for Water Services

Thursday, July 7, 2016   (0 Comments)
Share | 07/07/16

Under New Jersey law, we have a fundamental disconnect between development planning and utility services for that growth. The Municipal Land Use Law (MLUL) of 1975 is now 40 years old, mostly unchanged from its early years. The MLUL requirements for a master plan are interesting. Only two elements are actually required: a statement of objectives, principles, and the like and a land-use plan element.The point is that development in New Jersey is allowed or restricted by municipalities first. It is municipalities that decide whether to plan for growth at high or low densities, for redevelopment, and for preservation. 

Very few municipalities have adopted a comprehensive utility service plan element. According to the MLUL, this element analyzes “the need for and showing the future general location of water supply and distribution facilities, drainage and flood control facilities, sewerage and waste treatment, solid waste disposal and provision for other related utilities …” The one part of a utility service element that essentially every municipality has adopted is a storm water management plan, because these have been required by the New Jersey Department of Environmental Protection through the stormwater program. Municipalities may address some utility services issues in passing, but rarely in any depth.

Regardless of the reasons why we don’t have good utility services elements, why would municipalities who plan for growth not be required to plan for their supporting utilities? The MLUL was adopted in 1975, at a time when many municipalities lacked master plans, zoning ordinances, or any of the other modern forms of development regulation. A major policy constraint is the 1995 “state mandate-state pay” requirement of the constitution; the Council on Local Mandates has the authority to determine that a state law, rule, or regulation imposes an unconstitutional "unfunded mandate" on boards of education, counties, or municipalities, at which point the mandate is nullified. The Legislature may well be reluctant to require more robust master plans because state payment could be mandated, or the provision voided.

The MLUL authorizes municipal zoning and development regulations; it does not require them. As a condition of this permission, municipalities must have master plans. A legitimate question is whether an additional condition for the master plan can be required without violating the constitutional restriction on unfunded mandates. There is ample reason to ensure that municipalities planning for growth also plan for the utility services required by that growth. Otherwise, we can be engaged in fantasy planning, pursuing growth in areas that may lack utility services sufficient to support it.

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