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New Jersey Builders Association v. Township of Egg Harbor

A-3928-01T2 (N.J. Super. App. Div. 2003) (Unpublished)

DEVELOPERS—A municipality can adopt an ordinance requiring developers to provide longer term warranties for storm management systems than would be required under state or regional authority laws and regulations, if those other laws and regulations only specify a minimum warranty period.

A municipality sought approval of an ordinance requiring developers in the Pinelands portion of the municipality to provide a twenty year maintenance guarantee for storm water management systems. The Pinelands Commission certified that the ordinance was “in conformance with the minimum standards” of the Commission’s Comprehensive Management Plan (CMP). Nonetheless, a lower court judge concluded that the ordinance was invalid because it exceeded the length permitted under the Municipal Land Use Law (MLUL), which permits only a two year guarantee, “and because he thought the CMP, which would take precedence over the MLUL provision, authorizing no more than a four-year guarantee.” The Appellate Division disagreed. The municipality’s ordinance actually required a twenty year guarantee as well as a twenty year maintenance and inspection program. As required by statute, the ordinance was submitted to the Pinelands Commission for review. A contractor’s group filed objections to the guarantee, alleging that the ordinance was adopted in retaliation for “other litigation which had resulted in a settlement.” The municipality “countered that the basis for the amendment was its experience over the years” with faultily designed and maintained drainage systems. There was no question about the reasonableness of a twenty year guarantee, “if lawfully within the [municipality’s] authority to enact.”

Under New Jersey statutes, conflicts among the MLUL, the CMP, and the Pinelands Protection Act (PPA) are resolved in favor of the PPA and the CMP. Therefore, the MLUL’s provision for a two year maintenance guarantee is superceded by the CMP’s four year guarantee provision. Consequently, the question was only whether the ordinance could require a twenty year guarantee if the CMP stated: “For private development applications a four year maintenance guarantee [must be] provided for the entire storm drainage system by the applicant.” Even though the lower court thought that the municipality could not impose a more restrictive guarantee, the Appellate Division felt that the lower court had ignored the CMP’s introductory portion reading: “This subchapter establishes management programs and minimum standards governing development and land use… . ... The standards set forth in this subchapter are minimum requirements and the municipality, county, State, or Federal agency may adopt more restrictive regulations, provided that such regulations are compatible with the goals and objectives of this Plan. In such cases, all developers must adhere to the more restrictive regulations.” Simply put, so long as a twenty year guarantee is “compatible with the goals and objectives” of the CMP, the Pinelands Commission could approve such a requirement in a municipality’s ordinances.

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