Recently, the Senate Budget and Appropriations Committee advanced a committee substitute for S-3688 (SCS S-3688), legislation that would require a regional economic impact report and allow review by adjacent municipalities for certain proposed retail warehouse developments. To date, no Assembly companion has been introduced.
Under SCS S-3688, a municipality would be required to notify adjoining towns with a “notice of regional impact” when an application is filled to build a retail warehouse, allowing the neighboring communities to adopt a resolution of “regional concerns,” which would entitle them to have their objections addressed by the host community and proposed developer, at a hearing to be held by either the county planning board or the State Planning Commission.
The League’s review of the new language in SCS S-3688 raises a number of important concerns and questions that we hope will be addressed before the legislation moves forward. Specifically, we note the following concerns:
1. The bill requires an additional level of review at the county or state level – depending on whether or not adjacent municipalities are in the same county – through a required hearing process, but fails to provide with sufficient detail the process and procedures for holding such a hearing. While land use decisions at the municipal level operate in a quasi-judicial manner, with procedures for hearings outlined within the Municipal Land Use Law “(MLUL”), it is unclear from SCS S-3688 how similar hearings in front of the county planning board or State Planning Commission would function.
For example, what number of members is needed for a quorum to review an application? Is the application review a quasi-judicial review like a hearing under the MLUL? Will anyone be able to present testimony and provide evidence to the board or commission during this hearing? What number of votes is needed to adopt a decision, a simple majority or something else? Who will cover the costs associated with the county board or State Planning Commission review? Structural and operational details of this kind of review are important to ensure the necessary due process is given to applicants and all others interested in the development.
2. We have additional concern with standards the county planning board or State Planning Commission would use when judging these applications. SCS S-3688 does not provide clear and objective criteria to be used when reviewing applications for large warehouses. This creates uncertainty for applicants and municipalities alike.
Additionally, the lack of proper objective standards could open the decisions of the county planning board or State Planning Commission up for legal challenges based on due process concerns, thereby creating additional uncertainty and expense for all involved. Further, without clear guidelines the legislation may be deemed to be an impermissible delegation of legislative authority, putting the entire legislation in jeopardy of being overturned.
3. The definition of “large warehouse” is vague. SCS S-3688 defines a large warehouse to mean, “a large facility meeting guideline requirements as promulgated by the State Planning Commission…and designed predominantly for receiving and storing goods and materials before they are sold, used, or redistributed.”
Notably, this definition does not differentiate between projects of different size and scope, despite the intended focus of the legislation to be on large facilities. The lack of clarity could result in any warehouse development project triggering the need for a potentially costly, economic impact report. While the State Planning Commission is given authority to help define the term, the legislature should provide additional guidelines for the Commission to follow when adopting a definition.
4. Further, criteria which the county planning board or State Planning Commission would be required to base their decision on is related to the economic impact that a proposed warehouse would have on the adjoining municipalities and region. Neither county planning boards nor the State Planning Commission operate and function as a body meant to assess the economic viability and impact of projects. Thus, it is inappropriate to task these bodies with reviewing warehouse applications focusing on this type of criteria.
5. Part of the committee amendments includes a provision that would require a municipality that receives an application for a large warehouse to update the land use and development proposal aspects of their masterplan, unless the masterplan was updated within the prior 12 months. The update would need to consider the number and nature of variances that were granted in the prior 12 months.
A review of the municipal master plan can be a costly endeavor. It is impractical to mandate such an undertaking simply upon the receipt of an application for development of a large warehouse. This provision should be reviewed to prevent costly unnecessary reviews of the municipal masterplan.
6. Another amendment would require any municipality that approves a large warehouse development project, and has not performed a municipal-wide revaluation or municipal-wide reassessment within the prior 60 months to perform a revaluation or reassessment within two years of the warehouse approval.
Municipal-wide reassessments and revaluation can be very costly. It is unclear what the purpose this mandate serves and why such a requirement would be necessary upon the approval of a large warehouse development project.
The League will continue to work with any legislator interested in crafting a solution to problems that arise when development impacts more than one community. Any such legislation, however, must protect home rule and not cause municipal government to lose control over their development or the ability to prevent development.
Contact: Frank Marshall, Esq., Associate General Counsel, email@example.com or 609-695-3481 x 137.