ANJEC's Highlands News & Alerts
Highlands Council to Allow Delegation of Exemption Decisions to Municipalities
In July the Highlands Council adopted a Memorandum of Understanding (MOU) with the NJ Department of Environmental Protection that would allow the delegation of some exemption determinations to municipalities. To qualify, the municipalities must have conformed to the Highlands Plan and have passed a local ordinance to govern the process.
Currently, the NJDEP makes these decisions in the Preservation Area and the Highlands Council makes them in the Planning Area. The thinking is that residents seeking exemption determinations (for selected exemptions) would be better served and receive quicker responses at the local level.
Conforming municipalities can voluntarily agree to assume these duties but should be aware of the proper procedures and should carefully weigh the advantages and disadvantages for doing so. If a municipality chooses not to seek this authority, exemption determinations will remain as they are currently.
Requirements for delegation to the municipality
To assume this authority, the MOU requires that municipalities must:
- Have an approved or conditionally approved Petition for Plan Conformance that may involve the Preservation Area, the Planning Area, or both;
- Adopt a local ordinance that establishes appropriate procedures and requirements. The model ordinance is "under development". According to the MOU it shall:
- Recognize that the conforming municipality may issue exemption determinations under the Highlands Act for the "Municipal Issued Exemptions" (See below, "exemptions eligible").
- require that such exemption determinations be issued to applicants in a timely fashion, in writing, including a statement indicating the basis for the final decision.
- Require that the conforming municipality provide a copy of each exemption application and municipal exemption determination be provided to the Highlands Council and to the NJDEP within 10 days of the date of issuance.
- Provide that municipal exemption determinations may be appealed to the Highlands Council (Planning Area) and to the NJDEP (Preservation Area) "by any affected party" within 20 days of issuance. The Highlands Council shall examine any such appeals based upon a de novo review. A de novo review is a complete reconsideration of the issue as if any previous process had not happened.
- Provide that for any applicant who receives a municipal exemption determination from a conforming municipality and is required to obtain a Highlands Applicability Determination (HAD) pursuant to N.J.A.C. 7:38-2.4b), (the project requires a NJDEP land or water permit) the NJDEP will review the municipal determination as part of the permit review.
- Complete a "Highlands Exemptions Training Program" offered by the Council. Grant funding is available to meet costs associated with the training. The training program is "under development." The MOU indicates that "applicable officers and representatives" of the municipality should attend but does not specifically mention any.
- Have the Highlands Council certify the ordinance and completion of the training program.
What exemptions are eligible for municipal delegation?
The Highlands Act creates 17 exemptions. (Click here for complete exemptions) for the complete exemptions. Of these, municipalities may be delegated the following exemptions: 1, 2, 4, 5, 6, 7, and 8
1. Construction of a single family dwelling for own use or family use:
2. Construction of a single family dwelling on existing lot:
4. Reconstruction of buildings or structures within 125% of the footprint:
5. Improvement to a single family dwelling:
6. Places of worship, schools, or hospital:
7. Woodland and Forest management plans:
8. Trails on public or private lands:
Are there other exemptions that municipalities cannot grant?
Yes. Even if included in the above listing, municipalities cannot grant exemptions requested by other local government units as defined in the Highlands Act (N.J.S.A. 13:20-3) , its own lands or facilities including but not limited to municipal buildings, parklands, public works facilities or school improvement. In the Preservation Area the NJDEP retains authority to grant exemption determinations for capital projects or other projects of State entities or local government units and for the rest of the 17 exemptions in the Highlands Act. In the Planning Area, the Highlands Council retains authority over these projects.
Does a municipal exemption preclude DEP enforcement?
No. The MOU specifies that the DEP's enforcement authority under Section 37 of the Highlands Act remains in place.
What if our town is not conforming, has not passed an ordinance or attended training?
If your town has not complied with these three requirements, exemption determination authority remains with the NJ DEP in the Preservation Area and with the Highlands Council in the Planning Area.
Will we be able to charge a fee for providing exemption determinations?
Nothing in the MOU addresses fees. It would appear that a reasonable fee could be charged under normal Municipal Land Use Law provisions. The issue of fees for municipalities should be included in the model ordinance, but at present, the contents of the ordinance remain unknown. Municipalities should be aware that the NJDEP fees have been controversial with some applicants who believe that they should not have to pay for an exemption determination.
How will granting a Highlands Exemption affect our local zoning?
The exemptions are only from the Highlands DEP rules in the Preservation Area and from the Regional Master Plan (RMP) in the Planning Area. Importantly, the exemptions will also apply to any new local ordinance adopted as part of conformance. If municipalities wish to retain regular land use control authority over exempt activities by a adopting a new local ordinance, care should be taken in the new ordinance to state that it not a conformance issue.
If our municipality assumes the responsibility for exemption determinations, is the authority permanent?
No. The MOU that establishes the delegation program can be revoked by action of the NJ DEP or the Highlands Council with 60 days written notice to the other party. Should this occur, the municipality's ability to grant exemption determinations would terminate.
For Further Assistance:
Contact David Peifer, Email or, 973-539-7547
ANJEC Highlands Project Director