Opinion: Those Who Plan for Growth Should Plan for Water Services

Daniel J. Van Abs | July 7, 2016 | Opinion
We may clamor for development, but do we have the water utilities to support it?

Daniel J. Van Abs
Under New Jersey law, we have a fundamental disconnect between development planning and utility services for that growth. The Municipal Land Use Law (MLUL) of 1975 is now 40 years old, mostly unchanged from its early years. That law authorizes municipal planning and development regulations. Every municipality that wants to zone has a master plan that lays out the community vision for growth, for better or worse. That vision provides the basis for local zoning ordinances, which determine what types of development can go where and at what density. Where do we want our housing, stores, office buildings, parks, and (rarely) major industry? Municipal ordinances then regulate property subdivision and development site plans under the adopted zoning. Master plans are adopted by planning boards, while the various ordinances are adopted by municipal governments.

The MLUL requirements for a master plan are interesting. Only two elements are actually required: a statement of objectives, principles, and the like and a land-use plan element. According to the MLUL, the land-use plan element (in part) should show “the existing and proposed location, extent and intensity of development of land to be used in the future for varying types of residential, commercial, industrial, agricultural, recreational, educational and other public and private purposes or combination of purposes; and stating the relationship thereof to the existing and any proposed zone plan and zoning ordinance.” That’s it. With those two components, the master plan can be adopted.

A key point is that the land-use law and the resulting municipal plans and ordinances are the only legal structure for determining what land uses are desired. State environmental laws restrict development in specific areas, such as wetlands, flood plains, coastal waterfront areas, and open waters. But these restrictions are overlay regulations — they can’t permit development that is unauthorized according to the municipal zoning. County plans also have no authority to allow what municipalities don’t allow.

The point is that development in New Jersey is allowed or restricted by municipalities first. It is municipalities that decide whether to plan for growth at high or low densities, for redevelopment, and for preservation. It is the zoning ordinance that puts those expectations into regulatory form. Redevelopment agreements can modify the zoning, but must be approved by municipal governments. Only then do other laws and agencies determine whether what is allowed by the municipality must be restricted for other reasons.

The MLUL also authorizes but does not mandate the adoption of many other parts of a municipal master plan. Most municipalities include at least a few of these elements, especially for transportation. Recycling has also been popular, and many municipalities have open-space and farmland-preservation plans as the basis for local land preservation programs.

However, very few municipalities have adopted a comprehensive utility service plan element. According to the MLUL, this element analyzes “the need for and showing the future general location of water supply and distribution facilities, drainage and flood control facilities, sewerage and waste treatment, solid waste disposal and provision for other related utilities …” The one part of a utility service element that essentially every municipality has adopted is a storm water management plan, because these have been required by the New Jersey Department of Environmental Protection through the stormwater program. Municipalities may address some utility services issues in passing, but rarely in any depth.

The history of New Jersey’s development makes clear the importance of water utilities. Every urban area, nearly all suburban areas, and many rural boroughs have water supply, sewer, and stormwater utility services. Dense development requires these services, without exception, and those densely developed areas are the economic backbone of the state. It only makes sense that we plan for development and utility services simultaneously, so that the services are adequate to the needs, and the needs don’t overwhelm the capacity of our environment and utilities to provide services.

Why this lack of attention to utility services in master plans? There are several possible answers. First, these utility functions are often thought of as someone else’s responsibility. There are water supply and wastewater utilities, after all — why shouldn’t they take responsibility? As for drainage, that is seen as a function for developers and then for public works departments. The problem with this argument is that these service providers all must react to the needs caused by development. They have little control over the demands made of their services. If there is a mismatch, everyone suffers poor service, higher costs, or both. This problem isn’t theory. Especially in developing suburbs and old town centers, there have been many municipalities that were or still are unable to approve developments that meet all local requirements, because of insufficient water supply or sewage treatment capacity. We rarely hear about this in the news, because it is the development that doesn’t happen — it doesn’t come to peoples’ attention.

A second reason may be that members and staff of planning boards, which are responsible for development master plans, may feel that they lack sufficient knowledge to plan well for utilities. A reasonable response would be an educational process for the members and staff, so that they can address utility service needs successfully. Cooperative efforts with the appropriate utilities can also result in better information, better understanding, and better plans. Also, some municipalities simply don’t have either a water supply or wastewater utility, but that only means their utility services element should be focused on the services they do have or need.

Regardless of the reasons why we don’t have good utility services elements, why would municipalities who plan for growth not be required to plan for their supporting utilities? The MLUL was adopted in 1975, at a time when many municipalities lacked master plans, zoning ordinances, or any of the other modern forms of development regulation. The Legislature, faced with this situation, may reasonably have decided to start with the basics.

However, we have not advanced enough in the intervening 40 years. There are several possible reasons, including concerns about excessive state influence on municipal actions. We have a strong “home rule” tradition. A major policy constraint is the 1995 “state mandate-state pay” requirement of the constitution; the Council on Local Mandates has the authority to determine that a state law, rule, or regulation imposes an unconstitutional “unfunded mandate” on boards of education, counties, or municipalities, at which point the mandate is nullified. The Legislature may well be reluctant to require more robust master plans because state payment could be mandated, or the provision voided.

However, the history of the MLUL is important here. Municipalities do not have a constitutional right to zone; they can only do what the Legislature allows by law. The MLUL authorizes municipal zoning and development regulations; it does not require them. As a condition of this permission, municipalities must have master plans. A legitimate question is whether an additional condition for the master plan can be required without violating the constitutional restriction on unfunded mandates. There is ample reason to ensure that municipalities planning for growth also plan for the utility services required by that growth. Otherwise, we can be engaged in fantasy planning, pursuing growth in areas that may lack utility services sufficient to support it.