COVID-19 UPDATE
July 1, 2020
Bruce S. Katcher
MGKF NewsFlash
NOTE: This update supersedes the MGKF NewsFlash from May 18th
Following up on the Governor’s recent Conditional Veto of Assembly Bill 3919, the New Jersey Legislature has passed, and on July 1, 2020, the Governor signed into law the Permit Extension Act of 2020 (2020PEA). The 2020PEA is intended to toll the running of the expiration dates of a wide range of local, county and state construction-related permits and approvals (including environmental permits) during the COVID-19 pandemic. Note that this article supersedes our previous alert covering the passage of A3919, the bill the Governor conditionally vetoed, which was written after the bill passed the Legislature, but before the veto.
Stand-alone Legislation
Originally passed by both the Senate and Assembly as an amendment to the 2008 Permit Extension Act (2008PEA), the Governor issued a conditional veto, primarily to limit the period of time that the tolling might continue so as to avoid the unintended extension of permits and approvals years into the future. His conditional veto message required enactment of the 2020PEA as a stand-alone law versus an amendment to the 2008PEA to avoid such deficiencies and others that he felt existed in the latter. He also incorporated several other revisions contained in the conditional veto.
Applicability
As with the 2008PEA, the 2020PEA applies to a wide variety of governmental permits and approvals, including many NJDEP issued land use approvals (e.g., wetlands letters of interpretation, waterfront development and CAFRA permits), flood hazard permits where work has commenced, water supply permits and certifications, water quality management plan approvals and other environmental approvals. Municipal land use approvals are also covered. The exclusion of extensions for permits for land within certain designated “environmentally sensitive areas” contained in the 2008PEA is eliminated; however, the 2008PEA exclusion of permits issued under federally delegated programs (e.g., NJPDES permits, most freshwater wetland permits, RCRA permits, new source review permits, etc.) is retained. Other specialized exemptions from the 2008PEA for projects in the Pinelands, the Meadowlands, the Highlands and elsewhere are retained.
Period of Extension
This legislation extends the running of the approval period for certain state, regional, county, and municipal agency permits and approvals for the duration of the COVID-19 “public health emergency” initially declared by Governor Murphy pursuant to the Emergency Health Powers Act on March 9, 2020. Unlike the original bill, it does not also include the period of the “state of emergency” declared the same date pursuant to P.L.1942, c. 251. The Governor feared that the latter period could extend far beyond the public health emergency and result in unintended permit extensions, as he determined had happened in connection with extensions associated with Superstorm Sandy which included the state of emergency period.
The extension applies to any covered permit or approval in existence during the extension period. Such approvals are extended not only until the conclusion of the COVID-19 public health emergency but are also extended at least six months beyond the conclusion date (i.e., where they would expire before that time). The additional extension period in the original bill of up to 12 months for construction projects suspended pursuant to either the Governor’s Executive Order No. 122 (which suspended all non-essential construction) or any other government order was eliminated in response to the Governor’s veto action.
The legislation also would extend certain timeframes by which planning and zoning boards have to grant or deny any applications pursuant to the Municipal Land Use Law.
Important Registration Requirement
As enacted, the 2020PEA requires all government agencies to place a notice in the New Jersey Register within 30 days of the effective date (July1, 2020) tolling the approvals and permits extended under the law. The law also added a requirement that any affected permit or approval must be registered with the relevant agency within 30 days of the New Jersey Register Notice, although it does not specify how that is to be accomplished. The agencies must then publish a list of registered permits and approvals on their websites. If a permit or approval is not registered, the automatic extension granted under 2020PEA is not effective. Therefore, it is critically important that any affected permit or approval be registered and that the website be checked to make sure that your permit or approval is listed.
Soil and Fill Recycling
A separate section of the legislation suspends the registration, application, or licensing requirements or timeframes under the new law recently enacted by the Legislature to impose additional requirements on soil and fill recycling activities, but only as to those businesses that perform these services in connection with road or bridge construction activities. In other words, businesses covered by the new law that provide these services in connection with redevelopment activities must still comply with the deadlines in the soil and fill law, although all businesses subject to the law were separately granted extensions under Governor Murphy’s Executive Order 136. Both sets of extensions will run 60 days after the COVID-19 public health emergency ends.
Conclusion
The general intent of the extensions is to provide for an adequate period of recovery from the halt and associated required modifications to business activity (including social distancing, and other precautionary measures) occasioned by the COVID-19 pandemic and the severe business downturn accompanying these actions. Whether the time allotted to the extensions is sufficient to account for these effects will remain to be seen. For questions or more information, contact Bruce Katcher at 484-430-2320.