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correct size blogSigned into law on January 16, 2018, P.L. 2017 C. 312 amended the Municipal Land Use Law (“MLUL”) to set limitations on the circumstances in which a municipality can require performance and maintenance guarantees from a developer.  Municipalities often require a developer to post performance guarantees to ensure that certain types of improvements are completed.  Prior to P.L. 2017 C. 312, the MLUL authorized performance guarantees for various improvements, regardless of whether they would be privately owned or dedicated to the municipality upon completion. However, under the recent law change, municipalities are now permitted to require performance guarantees only for improvements being dedicated back to the municipality, with an exception for privately-owned perimeter buffer landscaping.

Furthermore, municipally required performance guarantees are only permitted for certain types of improvements as outlined within the MLUL.  These include, among other things; curbs, sidewalks, street lighting, water mains, etc.  One particular item of note, no longer subject to performance guarantees is, “erosion control and sedimentation control devices.” While widespread authority under the MLUL to require performance guarantees for these items has been eliminated, certain municipalities may find that under the Soil Erosion and Sedimentary Control Act, they still have authority to require performance guarantees for erosion control and sedimentation control devices.

The intent of the Soil Erosion and Sedimentary Control Act (the “Act”), was to prevent development within the state from causing soil erosion which pollutes the state’s waterways and causes other harms to the environment.  To facilitate this purpose, the Act created Soil Conservation Districts and tasked them with creating soil erosion standards along with the authority to review construction projects to ensure the adopted soil erosion standards are met.  The Soil Conservation Districts oversee the soil erosion standards for all development within their defined areas.  Currently, there are 15 Soil Conservation Districts and for the most part, they run along county lines.  The Act also authorized municipalities to adopt an ordinance within 12 months of the Act’s passing, which would allow the municipality to take on the functions of the Soil Conservation District for developments within its boundaries.  These are known as, “exempt municipalities.”

Today, there remain only a few exempt municipalities.  But, for these exempt municipalities, it is important for them to understand the implications that the new changes to the MLUL could have on their ordinances related to erosion and sedimentation control devices.  This is especially true as many municipalities begin the process of amending their land use ordinances to reflect the recent changes to the MLUL by removing references to certain performance guarantees.

Exempt municipalities should take particular care to ensure that when they are reviewing and amending their ordinances in connection with the MLUL changes that they are not inadvertently removing from their ordinances performance guarantee requirements for soil erosion and sedimentation.  It is important that exempt municipalities understand that they may retain, under the Act, the authority to require performance guarantees for soil erosion and sedimentation control purposes.

Exempt municipalities should consult with their municipal attorneys for further information on how the recent changes to the MLUL could impact their authority under the Soil Erosion and Sedimentary Control Act.

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

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