Streamlining the Land Use Permitting Process
Construction projects can be enormously complex undertakings with thousands (or tens of thousands) of moving parts. Helping our clients through the permitting process requires a deep understanding of how to deal best with multi-governmental agencies and broad experience in the permitting timetable.
Is it possible to streamline the land use permitting process?In 2015, the New Jersey Department of Environmental Protection (NJDEP) began streamlining land use permitting programs administered by the Division of Land Use Regulation, including two areas that impact the ability to apply for and obtain permits.
Who is allowed to apply for environmental permits?Before the amendments, Coastal Zone Management (CZM) Rules and Flood Hazard Area (FHA) Control Act Rules allowed only property owners or their agents to apply for environmental permits.
Currently, the CZM, FHA and the Freshwater Wetlands (FWW) Protection Act also accept permit applications from individuals proposing a project as long as they have “legal authority,” the owner’s prior consent. Additionally, public entities proposing an activity within a right-of-way or easement that they hold, or that will be appropriated by them under the power of eminent domain, may file an application for a permit.
Do you need written consent?You must likewise have written consent from the holder(s) of an easement or right-of-way if your project would impact it. The amendments also spell out what constitutes written consent for a proposed gas pipeline project within a municipally owned right-of-way.
Although these changes and clarifications are minor, the way the NJDEP enforces the rules can greatly impact your project’s schedule. In efforts to reduce their time wasted on invalid applications, the NJDEP has become far stricter regarding landowner consent.
Do I need a signed LURP (Land Use Regulation Program) form?Our proven strategies for addressing the landowner consent requirement for environmental permit applications include using landowner consent letters in lieu of signed LURP Forms. This allows submission and review of the permit application while reserving the landowner’s future ability to negotiate for necessary land rights.
What about public hearings?Besides public hearings now being called “fact-finding” meetings, elimination of some specific requirements has created more flexibility. Under the old FWW Rules, notice of a public hearing had to be published within 60 days of finding the application administratively complete. Currently, the NJDEP must simply hold a fact-finding meeting if – based on public comments, scope, or environmental impact – it is determined one is needed.
Recommendations:Rutter & Roy recommends a more proactive approach to permitting. For clients proposing major developments that may garner significant public comments and/or opposition, we advise they submit a robust permit application and request a fact-finding meeting in their application cover letter.
The NJDEP often decides to hold public hearings late in the permitting process, which can lead to delays in permits and in the start of construction. Requesting the hearing early paves the way for an efficient application process.