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PQA wins important CAFRA rule change that will promote Smart Growth development

On June 7, 2010 the Department of Environmental Protection adopted an important CAFRA rule change that will promote Smart Growth development in New Jersey’s coastal communities. For decades New Jersey’s Coastal Area Facilities Review Act (“CAFRA”) regulations have required that developments in the CAFRA zone involving 24 residential units or more provide at least 2 on-site parking spaces for each residential unit. See N.J.A.C. 7:7E-8.14(e). While the purpose of this regulation — namely, to ensure that multi-family development near the beachfront did not displace on-street parking used by beachgoers — was well-intentioned when originally adopted, the regulation was more broadly written than necessary to achieve this purpose. In Monmouth County, for example, the CAFRA zone extends from the beach more than three miles inland to the Garden State Parkway, far from where even the most fervent sun worshiper is willing to park his car and trek to the beach.

The regulation’s unintended impact became apparent to PQA partner and Belmar Mayor Ken Pringle in 2007, when redevelopers involved with Belmar’s Seaport Village Redevelopment Plan attempted to obtain CAFRA approval for their projects. Belmar’s redevelopment plan, which won the Smart Growth Planning Award from New Jersey Future in 2007, permitted redevelopers to calculate parking requirements based on a shared parking formula that took into account off-setting peak parking demands from residential and commercial uses in a mixed-use project. The approach was designed to achieve both environmental and economic goals by minimizing the amount of on-site space that had to be dedicated to parking. But Belmar’s redevelopers found that no matter how efficiently they designed the mix of uses on their projects, or the sizes of the residential units they proposed, NJDEP insisted that there had to be at least two on-site parking spaces for each residential unit. To make matters worse, one CAFRA permit issued by NJDEP staff provided that that the only alternative to meeting this requirement would be for the Borough to make up any shortfall by dedicating on-street parking spaces for the exclusive use of residents of the development — exactly the outcome the regulation was designed to prevent!

In the spring of 2007, Pringle wrote to then NJDEP Commissioner Lisa Jackson to explain the problem, and pointed out that the DEP’s interpretation of N.J.A.C. 7:7E-8.14(e) was inconsistent with the both its original purpose, and four of the eight basic coastal policies underlying the Coastal Area Facilities Review Act. Most notably, these policies include a mandate to “[c]oncentrate rather than disperse the pattern of coastal residential, commercial, industrial, and resort development,” and to “[e]ncourage residential, commercial, and recreational mixed-use redevelopment of the developed waterfront.” Pringle pointed out that the NJDEP’s inflexible interpretation of N.J.A.C. 7:7E-8.14(e), was not only inconsistent with these policies, but with Smart Growth principles in general. Indeed, the effect of the NJDEP staff’s interpretation of this regulation was to effectively bar coastal municipalities from adopting shared parking strategies that were designed to make the most efficient use of precious — and expensive — coastal land. See, e.g., Shared Parking, Urban Land Institute (2nd Ed., 2005).

In addition to requesting that N.J.A.C. 7:7E-8.14(e) be amended to encourage mixed-use Smart Growth projects, Pringle also requested that NJDEP consider amending the regulation to make it easier for coastal municipalities to provide affordable housing within such projects. Pringle pointed out that although N.J.A.C. 7:7E-8.14 contained an exemption for nursing home and assisted living facility uses, and provided a mechanism for reducing the two-space per residential unit parking requirement for senior citizen housing, it did not contain a similar provision for affordable housing units.

After several meetings with NJDEP’s CAFRA staff during late 2007 and 2008, and an internal review of the issue led by Acting Commissioner Mark Mauriello, a proposed amendment to the regulation was published in January 2009 that limited the two-space per residential unit parking requirement to developments located within one-half mile of the beach. The amendment also provides that residential units of 650 feet or less would require only one off-street parking space. Although the amendment was signed by Mauriello in January, 20010 during the waning days of the Corzine Administration, the publication of the regulation was delayed by Executive Order 1 issued by Governor Christie, which required that all pending regulations undergo review by a “Red Tape” commission before being finally adopted. The amendment to N.J.A.C. 7:7E-8.14(e) was cleared for publication on June 7, 2010.

The effect of this amendment is to eliminate the single biggest regulatory hurdle to Smart Growth development in New Jersey’s coastal communities, and to give municipal officials and local developers the flexibility to craft parking strategies designed to make the most efficient use of limited downtown real estate. Because many New Jersey coastal communities in Monmouth and Ocean County are served by New Jersey Transit’s Coast Line, this amendment will also encourage transit-oriented development all along the New Jersey Transit Coast Line corridor.

PQA’s land use attorneys represent both commercial and residential developers on projects of all sizes, from small-scale residential development to 300-lot subdivisions to large-scale shopping center and mixed-use projects. PQA attorneys are actively engaged in statewide efforts to promote sustainable design and Smart Growth and transit-oriented development, and represent a number of municipalities and municipal land use boards ranging from the Boroughs of Red Bank and Spring Lake, to the City of Trenton.

Belmar Office

701 Seventh Avenue
Belmar, NJ 07719
Telephone: 732-280-2400
Telecopier: 732-280-2402

Morristown Office

60 Washington Street
Suite 201
Morristown, NJ 07960
Telephone: 973-656-9159
Telecopier: 973-656-9158

Mt. Laurel Office

Laurel Corporate Center
9000 Midlantic Drive
Suite 110
Mt. Laurel, NJ 08054
Telephone: 856-206-0060
Telecopier: 856-437-6126

Trenton Office

202 West State Street
Trenton, NJ 08608
Telephone: 609-393-8944
Telecopier: 609-393-8964

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