Changes to Beekeeping Rules

Tags

correct size blogOn Monday, the State Department of Agriculture issued a Notice of Proposed Substantial Changes in connection with the previously proposed apiary rules issued this time last year.   As the name implies, there have been substantial changes made to the Department’s previously proposed rules.  Some of those changes include:

  • J.A.C. 2:24-7.2(a)1: Allowing for three colonies per each ¼ acre tract of land, regardless of local land use and zoning rules. Under the original proposal, the number of hives permitted varied based not just on the size of land but by use.
  • J.A.C. 2:24-7.2(d): Hives must be placed 10 feet from any property line and 20 feet away from any roadside, sidewalk, or path. The original proposed rules would have required hives be placed 25 feet from any roadside, sidewalk, or path.
  • J.A.C. 2:24-7.2(d): The proposed changes eliminate a requirement found in the original proposal that hives be situated at least 85 feet from any public place such as, playgrounds, sports fields, schools, or churches, along with the requirement that hive entrances face away from residential properties.
  • J.A.C. 2:24-7.3: The proposed changes include a more detailed process by which beekeepers can seek a waiver of colony density limitations.  A new mechanism has been created where previously granted waivers can be challenged by surrounding property owners.

We are still reviewing the proposed changes and anticipate submitting comments to the Department highlighting areas of concern and support.  Your municipality may wish to do the same.  All written comments are due to the Department no later than February 1, 2019.  For more information on how to submit comments please see the Department’s Notice of Proposed Substantial Change.

Contact: Frank Marshall, Esq., League Staff Attorney, FMarshall@njslom.com or 609-695-3481 x 137.

Advertisements

Cannabis Legalization in Committee on Monday

As you may be aware, a joint committee hearing will be held on Monday with the Senate Budget and Appropriations and the Assembly Appropriations Committee to consider legislation to legalize adult use of recreational marijuana.

The Committees will consider amendments to S-2703 and A-4497.   We anticipate that these amendments will be made available today.    In addition, the Committees will also consider legislation to expand medical marijuana.

The League, along with the New Jersey Conference of Mayors and the New Jersey Urban Mayors Association issued a coalition letter to the Governor and all members of the Legislature outlining our recommendations and concerns.

For more on the League’s position on this issue please see our September 12 letter available at www.njslom.org/ArchiveCenter/ViewFile/Item/756.

We anticipate that the amended bill will include the local optional excise tax of 2%. Based on our research and what we heard from local officials at the conference session last week that amount is insufficient. We continue to advocate that municipalities should have the option of instituting an up-to-5% local option excise tax.

Further, there are continued concerns about how the State will fund the costs borne by local governments associated not only with the judicial expungement process but other local costs. In addition, there are concerns over land use controls, management issues, and other issues of interest to local governments.

According to public press reports, there remains a difference of opinion between the Legislative sponsors and the Governor’s office over the state tax rate and the composition and function of the State’s regulatory oversight. Sponsors hope to post the bills for final votes by the end of the year.

Please take action and contact your Legislators as soon as possible on this time-sensitive issues.

Contact:   Mike Cerra, Assistant Executive Director
(609) 695-3481 x120. mcerra@njslom.org

CY 2019 Municipal Budget Cap Information

correct size blogThe Division of Local Government Services has issued Local Finance Notice 2018-27 regarding the CY 2019 Municipal and County Budget and Cap Information.

The 1977 budget cap law (which caps APPROPRIATIONS increases) requires the Director of Division of Local Government Services to promulgate the Cost of Living Adjustment (COLA). The COLA for CY 2019 budgets is calculated at 2.5%. The governing body may pass a COLA ordinance, increasing the appropriation cap base to 3.5%. Cap bank balances from 2017 and 2018 are available for use in 2019.

As you know, this is just one of the two caps that limit local budgets. This cap was designed to limit local SPENDING flexibility. It should not be confused with the 2 percent cap on the local LEVY, which limits local revenue raising authority.

If a governing body wants to increase its allowable appropriations percentage in its budget to 3.5%, the following steps must be taken:

1. After January 1st, and prior to introduction and approval of the budget, an ordinance must be introduced that details the following:

a. The new rate (increased percentage) to be adopted; and,
b. The additional amount of appropriations to be added by the increase.

2. The ordinance must be approved by a majority of the full membership of the governing body, published, and a public hearing held at least 10 days after the publication date. A certified copy of the introduced action must be filed with the Director of the Division of Local Government Services within 5 days of its introduction.

3. The governing body may take a final vote on the action any time after the public hearing and prior to adoption of the budget. Depending on the form of government, the chief executive may veto the action in accordance with local procedures.

4. The ordinance takes effect immediately upon passage, and a certified copy of the adopted action must be filed with the Director within 5 days.

5. Cap increase referendums are not permitted if this option is chosen.

In addition, the 1977 cap law includes a cap exception for Group Health Insurance. This exemption is limited to the amount appropriated that is over 4% of the previous expenditures but not exceeding the State Health Benefits percentage increase. Since the State Health Benefits increase for CY 2019 is 0%, there will be no 1977 cap or 2010 levy cap exception for Group Health Insurance for CY 2019.

The Division will issue the Levy Cap Workbook at a later date.

Contact: Lori Buckelew, Senior Legislative Analyst, lbuckelew@njslom.org, 609-695-3481 x112.

 

CY 2018/SFY 2019 Best Practices Checklist Issued

Tags

correct size blogOn October 15, the Division of Local Government Services issued the CY 2018/SFY 2019 Best Practices Checklist.  Local Finance Notice 2018-26 provides guidance on this year’s process.  Calendar Year municipalities must submit their Best Practices checklist by Monday, November 12, 2018.  State Fiscal Year municipalities will have until Friday, April 5, 2019.

This year’s Best Practices Checklist consists of a total of 61 questions, 30 of which are new. The Division made an attempt to make the wording of various questions more concise and it has broken out compound questions into separate questions.  As a result, some questions require “yes” or “no” answers, while some are “yes”, “no”, or “not applicable”  and others “yes”, “no”, or “prospective.”  It is important to note that once the municipality’s Best Practices Checklist is transmitted to the Division, the worksheets cannot be amended and resubmitted, except if an appeal is made.

In addition, the 169 municipalities in the Opportunity Zones must answer an additional series of survey questions.  These questions are unscored.  The questions are aimed at gauging the needs, priorities and capacities of Opportunity Zones municipalities and to assist the State in helping these communities attract appropriate businesses, investments and development.

The minimum acceptable score is 46 out of 61.  Otherwise, a percentage of your final aid payment will be withheld as follows:

46-61 questions = 25% of final CMPTRA and ETR payment withheld

36-45 questions = 50% of final CMPTRA and ETR payment withheld

26-35 questions = 75% of final CMPTRA and ETR payment withheld

0-25 questions = 100% of final CMPTRA and ETR payment withheld

Failure to submit the Best Practices Checklist will result in a withholding of the full final aid payment. As in previous years, the completed Best Practices Checklist must be an agenda item for discussion at a municipal governing body meeting.  The Chief Administrative Officer, the Chief Financial Officer, and Municipal Clerk must certify the Best Practice Checklist.  The Division has requested that municipalities not wait for the Best Practices Checklist to be discussed at a governing body meeting but submit it once it has been completed.

Municipalities may submit appeals before the submission deadline, but after their Best Practices Checklist has been submitted to the Division.  The Division encourages that appeals be submitted in conjunction with the Best Practices Checklist submission.  Appeals to the Director must be submitted no later than the close of business Monday, November 12, 2018, for calendar year municipalities.

The League has reviewed the Best Practices Checklist and has a number of significant objections to the questions posed in this year’s list. Some of the questions are more survey like than an evaluation of best practices, are duplicative, increase costs to the municipalities or are simply inappropriate.

We are in the process of reaching out to the Division, the Commissioner and the Governor’s Office to raise our objections.  We will continue to keep you informed.

Contact:  Lori Buckelew, Sr. Legislative Analyst at 609-695-3481 x112,
lbuckelew@njslom.org

 

 

OPRA & OPMA Bills

Tags

,

correct size blogWe anticipate that the Senate Budget and Appropriations Committee will soon be considering two significant bills.  S-106 makes various changes to law addressing meetings of public bodies. This bill aims to provide public with greater access to meetings and information about meetings. S-107 makes certain access changes to open public records act; establishes State public finance website and creates a program for development of local websites. S-107 also makes an appropriation.  We anticipate additional amendments will be made to these bills.

We appreciate the strides the sponsors have taken to address concerns we have raised, through the proposed amendments. They represent real progress in addressing both the privacy issues surrounding OPRA and the issue of commercial request for records.  However, as discussed in more detail below, we still have major concerns with the bills and must continue to oppose S-106 and S-107.

  1. Subcommittees (OPMA): The definition of subcommittees has been changed to “any subordinate committee of a public body, except the Legislature, regardless of label, that is formally created by that body, comprised of two or more members, but less than a quorum, of the public body, and recognized by the public body as a subcommittee thereof.” Subcommittees would be required to prepare at least quarterly reports of their meetings that must include; the number of meetings held since the last report, the names of members of the subcommittee, and a concise statement of the matters discussed. Every subcommittee must file at least one report with the public body.  A subcommittee report is available for public access in the same manner as minutes of a meeting of the public body.  If the subcommittee has given an oral report at a meeting of the public body then they are not required to submit the written report for that quarter. The public body must determine if a subcommittee meeting is open to the public.  If the meeting is open to the public, adequate notice must be provided. The purpose of subcommittees is to make recommendations to the governing body for the governing body to take action. Subcommittees are designed to digest and vet information informally. Subcommittees do not expend public funds nor make binding decisions. That power remains with the governing body. By their very nature, subcommittees are advisory, deliberative, and consultative. Just as advisory, deliberative and consultative material is exempted from the Open Public Records Act so should subcommittees remain not subject to the provisions of the Open Public Meetings Act.

 

  1. Prevailing Attorney Fees (OPMA & OPRA): The OPRA bill continues to mandate prevailing attorney fees for violation of OPRA, and the OPMA bill is changing prevailing attorney fees from permissive to mandatory. The League strongly believes that the Courts and the Government Records Council need the flexibility to award reasonable attorney’s fees based on the given circumstances of a particular case.

 

  1. Exemption of the Legislature (OPMA & OPRA):  Both bills continue to exempt the Legislature from many requirements of the Open Public Meetings Act and all of the requirements of the Open Public Records Act.  The League has strongly argued that in the interest of transparency and openness, the various exceptions in the Open Public Meetings Act and Open Public Records Act that apply to the legislature and the legislators should be removed. The rules that the legislation makes applicable to other governmental bodies should apply equally to all governmental levels and officials.

We suggest you contact the members of the Senate Budget and Appropriations Committee to express your concerns with the legislation.

Sarlo, Paul A. – Chair

Stack, Brian P– Vice-Chair

Addiego, Dawn Marie 

Bucco, Anthony R.

Cruz-Perez, Nilsa

Cunningham, Sandra B.

Diegnan, Patrick J.

Greenstein, Linda R. 

O’Scanlon, Declan J.

Oroho, Steven V.

Ruiz, M. Teresa

Singleton, Troy

Thompson, Samuel D.

 

Contact:  Lori Buckelew, Senior Legislative Analyst,lbuckelew@njslom.org, 609-695-3481 112.

FCC Approves Order Preempting Municipal Control of the Public Right-of-Way

Tags

, ,

correct size blogOn Wednesday, the Federal Communications Commission (“FCC”) held a public meeting where it voted to approve a Declaratory Ruling and Third Report and Order (“Order”) that substantially limits local control of public rights-of-way (“ROW”). As we previously reported, the Order applies aspects of the Federal Communications Act to municipal review of applications for small cell wireless facilities within the municipal ROW.

The Order restricts the kinds and types of limitations and standards that local governments can set for wireless facilities seeking access to the ROW.  This includes limitations and standards set by local governments for aesthetic, safety, and system resiliency purposes.  Standards must be in writing and cannot be unreasonably burdensome.

The Order creates a “shot clock” for reviewing applications for small cell wireless facilities.  Municipal governments must review applications for collocation on preexisting structures within 60 days, and a deadline of 90 days for new builds.  The review period applies for batched applications the same as they would for individual applications. While applications will not be deemed granted if a shot clock timeline is missed, the Order now allows wireless site applicants to seek expedited injunctive relief in court within 30 days of the missed deadline. The shot clock can be paused if the municipality notifies the applicant within 30 days of receiving the application that the application is substantially incomplete.

In response to local advocacy,, the Order will go into effect 90 days after it is published in the federal register, instead of the usual 30 days.  The extended effective date was included in order to ease the burden on local governments needing to adapt to the changes.  The Order can still be opposed through a filing of petitions for reconsideration (“PFR”).  A petition for reconsideration requests that the commission review an action it has already taken. This is different from submitting comments during the open comment period. Given the controversial nature of the FCC’s action numerous PFR’s are expected to be filed.  We will continue to keep you updated on this matter should there be further developments.

Local governments are the stewards of public rights-of-way, which are used by telecommunications providers to build their own networks.  By narrowing the window and resources for evaluating small cell applications, the FCC is hindering local government’s ability to fulfill public health and safety responsibilities during the construction and modifications of small cell facilities. For more information on the Order and its impact, please see a recent post from our national affiliate, the National League of Cities.

Contact: Frank Marshall, Esq., League Staff Attorney, FMarshall@njslom.org or 609-695-3481 x137.

Update on Marijuana Legalization and the Local Option Tax

Tags

, ,

correct size blogAs you are aware, Governor Murphy identified the legalization of the adult use of marijuana as a top priority for his Administration.   Senate President Sweeney also supports this and has publicly indicated that there is sufficient support in the Senate to advance enabling this legislation; and, Speaker Coughlin recently stated that he also supports legalization.     With the State’s three leaders all on record in support, it is virtually certain that legalization will be realized in the near future.   Significant issues remain, however, and there is some disagreement over the form of such a bill, though it is expected that a bill will head to the Governor this fall.

The purpose of this letter is to update mayors on where this issue stands,   the role the League has taken and our suggestions and, for your consideration and action, League taskforce recommendations to the Legislature

LEGISLATION

While a number of bills have been introduced, it is best to view them as conversation starters.      No one has yet to see a consensus bill.   We note that every bill and concept proposed for discussion includes an “opt-out” provision for municipalities, meaning marijuana would be legalized in all municipalities unless a municipality takes affirmative action to opt-out.      Further, recent press reports indicate a consensus among legislative sponsors on a number of provisions, including:

  • A local option tax of up to 2% to be retained by the host municipality;
  • The creation of a 5-member commission to oversee marijuana regulations, permitting and an enforcement division. The Governor would appoint three members, and the Legislature would appoint the remaining two; and,
  • Automatic eligibility for those convicted of marijuana possession for criminal record expungement; individuals would still need to go through a process for expungement.

We note that these press accounts indicate support among the involved Legislators and do not reference the Murphy Administration.

Other press accounts and word of mouth indicate that a bill to expand the State’s medical marijuana program would move concurrently with an adult, recreational use bill.     Additionally, it is generally reported that a total tax on the industry would be about 25%, not including any local option tax.   It is also likely that there will be four distinct types of licenses:  1) growth/cultivation; 2) manufacturing; 3) transportation/distribution and, 4) retail. It is our understanding that homegrown products will not be authorized.     We expect that a municipality will have the option to opt-out of any or all of the four license types.

What the League Has Done

Earlier this year, League President Jim Cassella, Mayor of East Rutherford, appointed a Task Force on this issue to protect municipal interest.   The Task Force subdivided into four subcommittees to examine the discrete issue, including Budget and Finance, Land Use, Quality of Life and Public Safety.   League staff reached out to its counterparts in other states to learn what worked, what did not and their advice on how to proceed.    While there was no consensus on the larger legalization issue, there were some recommendations and guiding principles developed to safeguard the interests of local governments and property taxpayers in the event, now likely, that adult, recreational use of marijuana is legalized.

The League reached out to partners such as the New Jersey Urban Mayors Association (NJUMA) and the New Jersey Conference of Mayors (NJCM) and met with the prime Senate sponsor, Senator Nick Scutari in early August.

The League, NJUMA and NJCM followed up with the Senator about a week later with a series of comments and recommendations.   In our correspondence, we stated that all three organizations are generally supportive of the expansion of medical marijuana and decriminalization, but are not prepared to support the current legislative proposals for the legalization of recreational marijuana.   And if such a bill advances there should be provisions that support and protect the interest of New Jersey’s municipalities.   In doing so, we offered the following comments:

Revenues and the Local Option Tax

Recognizing that municipalities will likely only opt in with assurance of projected revenues, we recommend the following:

  • Any legislation authorizes municipalities to implement a local excise tax of up to 5% on any or all of the four proposed licenses;
  • Licensees should be required, as a condition of the license, to enter into a host benefit agreement with the municipality. The framework for this would be similar to the model used in Massachusetts;
  • There should be a mechanism in place to verify that the revenues collected as a result of a local excise tax are being returned appropriately to the host municipality;
  • Licensees should also be subject to any local license or mercantile fees, as would be the case with any other business.
  • Of revenues collected by the state, we further suggest the following:
    • Portions of this funding be dedicated for specific purposes to assist local law and health enforcement and public safety, including funding for Drug Recognition Experts (DREs); and,
    • The development of a statewide DUI protocol.

Comments:  As noted above,   the Legislative sponsors, according to press reports, agree with a 2% local option tax.    A municipality which chooses to opt-in should be assured that revenues will offset the costs of enforcement. Otherwise, other taxpayers in the community will subsidize the industry.      Based on our discussions with Mayors and with our fellow Leagues in states that have legalized marijuana, we believe that 2% is insufficient to offset costs and is an incentive for municipalities to opt-out.

We urge you to contact your Legislators and ask that if they support legalization, to also support an up-to 5% local option tax.

Local Enforcement of Land Use, Zoning and Planning, and Health

We appreciate that municipalities will have the ability to opt-out.     We asked that bill language be clear in stating that all local zoning controls remain in place as well so that a level playing field is maintained amongst all businesses in the community, including:

  • That bill language also be clear that “right to farm” does not apply to any of the four proposed licenses;
  • Clarification that cultivation is not permitted on farmland preserved with taxpayer dollars; and,
  • Clarify that retail license does not transfer for special events, such as a farmers market.

As with land use controls, we ask for language to assure that local health codes continue to govern.   Health officers should be afforded the same rights to inspect and begin appropriate disciplinary action for violations.

Comments:     The ability to opt-out is critical as it provides local votes their final say on legalization.   But the ability to opt-out alone is not sufficient to protect local enforcement of zoning.  While none of the current bills extend right-to-farm protections to the industry, specific language to clarify that point, is appropriate.   It should be made clear that local controls and enforcement prevail for this industry, just as it does with any other.

Conclusion

While there may not be a consensus opinion amongst municipalities on legalization, we recognize that legalization of recreational use is almost a certainty in the near future.    As a result, working with the NJUMA and NJCM, we have advanced a number of common-sense recommendations to keep taxpayers whole, protect local planning and retain the autonomy of local health officers.

Please take immediate action:  speak to your Legislators on this issue now and let them know how you feel.      There are issues apparent in any legislation that would legalize the recreational use of marijuana that would impact all municipalities regardless of whether you would opt-in or opt-out.  So no matter your position on the issue, please advise your Legislators of the concerns and recommendation covered in this correspondence.   In particular, it is critical to communicate that the suggested 2% option tax is insufficient and should be changed so that municipalities can choose to implement an up to 5% fee.

James Cassella, NJLM President              Colleen Mahr, NJLM First President                  Mayor, East Rutherford                             Mayor, Fanwood

James Perry, NJLM 2nd Vice President               Janice Kovach, NJLM 3rd Vice President Committeeman,  Hardwick                                    Mayor, Clinton Town

 Contact: Michael F. Cerra, Assistant Executive Director, mcerra@njslom.org or 609-695-3481 x120

FCC Proposed Order Dramatically Limits Control Over Municipal Rights of Way

Tags

,

town-crier_facebookOn Wednesday, the Federal Communications Commission (“FCC”) released draft text of a Declaratory Ruling and Report and Order  (“Order”).  If approved, the Order would severely restrict local government control over their rights of way (“ROW”) by specifically preempting local siting processes for small cell wireless facilities.

The Order is a direct result of the FCC’s Broadband Deployment Advisory Committee (“BDAC”) hearings, which we have alerted our members to last summer, and earlier this year.  As was feared, the FCC has accepted the BDAC’s recommendations despite those recommendations coming from a committee composed almost exclusively of industry representatives, and operating under the false assumption that local regulations act as a prodigal barrier to small cell deployment.

The Order would definitively conclude that Sections 253 and 332(c)(7) of the Federal Communications Act (“Act’)would apply to state and local governments’ review of applications to place small cell wireless facilities within the municipal ROW.  These sections of the Act, which are currently not considered applicable to small cell facilities, restrict what conditions and standards local governments can place on those seeking access to the ROW.  This includes limitations and standards set by local governments for aesthetic and system resiliency purposes.

In addition, the Order seeks to limit the fees that state and local governments can charge for processing applications.  The Order would limit application to the actual cost of review, a number which is often difficult to determine.  Furthermore, the Order identifies special fee levels for certain small wireless facility deployments which presumptively invalidates a higher fee and would place the burden on the reviewing entity to prove the necessity of the higher fee.

The Order also establishes a new “shot clock” for review of small cell wireless facilities.  Under the proposed Order review of applications would need to be completed within 60 days for collocation on preexisting structures and 90 days for new builds.  More drastically, the Order would find that the shot clock begins at the date of a pre-application meeting.  These changes severely limit the time in which municipalities can review applications and would also start the time for review before complete information is available.   While the shot clock is shortened, there is no indication from the Order that an application would be deemed granted as a remedy if a shot clock is overrun.

This Order is still a draft and will need to be voted on and approved at the next Open Commission Meeting, scheduled for Wednesday, September 26, 2018.  Efforts to advocate against these preemptive changes can take place until September 18, 2018, but after that federal law prohibits additional lobbying until after the proposal is published in the Federal Register.  A vote to approve the changes is expected to succeed, at which point local governments may file petitions for reconsideration or appeal the Order.

We are monitoring the work of our national affiliates at the National League of Cities (“NLC”) on this matter, which is preparing a template letter that our members can use as a base for filing their own objections with the FCC.  We will share this letter template once it has been finalized by the NLC for you to use to express your concern with the Order to the FCC, our Senators, and Congressional delegation.

If you would like more information on small cell wireless systems and the application of federal law to local review of siting applications, please review the Bureau of Municipal Information white paper, Wireless Systems in the Right of Way, What You Need to Know.  You can also find more information on how to plan for small cell wireless infrastructure in the League’s daily update from August 27, 2018, which includes a link to NLC’s model ordinances.

Contact: Frank Marshall, Esq., League Staff Attorney, FMarshall@njslom.org or 609-695-3481 x137.

 

 

 

Appellate Division Upholds Municipal Ordinance Charging Inspection Fee to Landlords

Tags

,

Last week, in Cona v. Twp. of Washington, et al., the Appellate Division, in a published decision, rejected challenges to municipal ordinances that require landlords to pay a fee to offset the costs of annual inspections and registration of rental units.    The Cona decision examined the Appellate Divisions’ 2015 ruling in Timber Glen, which found that municipalities are not authorized under state law to license landlords and charge an annual fee for the license.

The Cona court rejected assertions from the challengers that the fee charged for rental unit inspections was a de facto licensing fee, noting that licensing and inspections were distinct from one another and that the fees charged for inspections and registrations were reasonably related to the municipalities’ exercise of their obligation to promote the safety and welfare of their residents.  Although the court did have concerns with continued use of the term “license fee” in some municipalities’ ordinances, as it may lead to confusion, it nevertheless saw through the name and properly determined that the additional fee was charged to offset the costs of inspections and permissible under law.

You should review this decision with your municipal attorney and construction code official for more information on how the ruling will impact your municipality.

Contact: Frank Marshall, Esq., League Staff Attorney, FMarshall@njslom.org or 609-695-3481 x137.