By Joshua Burd
State officials are delaying new land use and flood protection rules that were due to take effect this summer, in a major win for commercial real estate and business groups and a bipartisan coalition of lawmakers and mayors that blasted the policy as far too onerous.
Known as the REAL rule, short for Resilient Environments and Landscapes, the program would significantly expand flood-risk areas and raise the required elevations for new development in those regions, seeking to account for the impacts of climate change. Critics have long argued that the framework was overzealous and would cripple development, making housing even more unaffordable in those regions, but the Department of Environmental Protection adopted the regulation on Gov. Phil Murphy’s last day in office in late January — allowing it to take effect on July 20 for projects that had not yet submitted permit applications.
On Friday, Gov. Mikie Sherrill and DEP Commissioner Ed Potosnak announced that the agency would extend the REAL rule’s so-called legacy provisions by one year.
“We are taking a close, comprehensive look at the REAL rules to ensure they reflect our core priorities of protecting lives and property, supporting responsible development and improving government efficiency,” Sherrill said. “This extension gives us time to meaningfully engage with local leaders, communities and other stakeholders across New Jersey to get this right.”
DEP said that outreach will come as part of a broad review to identify targeted amendments to ensure the rules balance safety, community, development and infrastructure and environmental goals and concerns.
“DEP is committed to stewarding a thoughtful and comprehensive review of the REAL rules that brings all stakeholders to the table and advances the Governor’s priorities of streamlining permitting, supporting new and resilient development and protecting life and property,” Potosnak said. “We look forward to engaging closely with all stakeholders, so we can identify targeted improvements that will balance these priorities and deliver a framework that balances efficiency with safety.”
NAIOP New Jersey and the New Jersey Builders Association were among those to applaud the decision and commend Sherrill and Potosnak for taking a decisive step amid the uncertainty.
“The commercial real estate industry is not opposed to reasonable, common-sense land use rules that will protect properties from flooding,” NAIOP New Jersey CEO Dan Kennedy said. “We look forward to right-sizing this over-the-top regulatory action into a workable set of solutions to address our state’s documented flooding issues.”
NJBA CEO Jeff Kolakowski, for his part, said the state “cannot solve a housing crisis by making it harder to build housing.” He also praised state Senate President Nick Scutari and lawmakers “for their continued attention to and scrutiny of this issue.”
“Diverse stakeholders raised important concerns about the rule’s impact on housing affordability, redevelopment, permitting and economic growth,” Kolakowski said. “This review creates an opportunity to ensure New Jersey’s climate resilience policies are effective while still allowing communities to grow and provide housing opportunities for current and future residents. We commend Governor Sherrill for recognizing that we can lead on climate resilience while also addressing housing affordability and we look forward to working with policymakers to advance both goals. ”
Kennedy also noted the adopted rule “faced historic bipartisan opposition from a wide range of stakeholders,” including state legislative leaders and more than 130 mayors,” adding that it went “far beyond predictable risks from climate change.”
“It makes all of New Jersey’s land use rules far more difficult to administer,” he said. “This move by Governor Sherrill aligns with her stated policy goals related to government efficiency, supporting redevelopment, increasing housing supply and reinvesting in public infrastructure. We stand ready to work with the Sherrill administration to create fair and effective land use regulations based on sound science.”
Developed by DEP over multiple years, the REAL rule applies to proposed construction such as new development, redevelopment and substantial improvements to residential, commercial and critical buildings and infrastructure along the coast and other environmentally sensitive areas. So-called legacy projects with administratively and technically complete permit applications by July 20 would be exempt, but the agency said Friday that it would extend that period to avoid the uncertainty, confusion and cost that could result from the regulatory changes.
During the review period, DEP will engage with interested parties including residents, municipalities, counties, regional planning entities, real estate developers and members of the environmental, business, insurance and real estate communities, the agency said. The decision also drew praise from the New Jersey Business & Industry Association, which joined NJBA earlier this year in filing an appeal to block the REAL rule’s implementation.
“We are grateful to the Sherrill administration for its plans to extend the legacy period in these rules and we look forward to working with them over the next year on practical and pragmatic solutions to provide our residents and businesses flood protection, while also accounting for affordability, fewer burdens and our overall economy, and well as an emphasis on resiliency,” said Ray Cantor, NJBIA’s deputy chief government affairs officer.
NJBA, NJBIA file appeal to stop Murphy-backed flood elevation rules for development
