Signed into law by Governor McGreevey on July 9th,
2004, the so-called "Fast Track" bill, officially
S1368/A3008 was designed, according to its synopsis, to
streamline "certain permitting in smart growth areas."
This law provides for an accelerated 90 day approval process for
state-issued development permits in designated areas in exchange
for additional fees.
The law requires a 45 day period for the appropriate office
to determine if the application is complete. It then allows for
a 45 day period for approval, which is automatic if there is no
action on the part of the state agency within the given period.
These new time tables are relevant only to what have been
designated as "smart growth" areas, defined in the
bill as Planning Area 1 (metropolitan), Planning Area 2
(suburban), designated centers and designated growth centers,
growth areas in pinelands and areas determined to need
redevelopment by the Commissioner of Community Affairs.
Altogether this land encompasses 750 thousand acres, which is
43% of the developable land in New Jersey and home to 85% of the
New Jersey population, according to the Asbury Park Press.
The Fast Track bill also provides for the creation of a Smart
Growth Ombudsman who will work to review the relevant permit
processes and to expedite permit approval and three directors to
serve in the state departments of Environmental Protection,
Transportation and Community Affairs. The law also creates the
Smart Growth Court which will provide a forum for denied permits
to be argued. Finally, the law allows for permits-by-rule which
allow for permits for specific developments to be issued by
pre-qualified consultants.
The Smart Growth Ombudsman and the directors will be
appointed by the Governor, with no indication in the legislation
that they will need to be confirmed. The salaries of these
positions are to be paid out of the additional receipts from
permit approvals. These salaries are currently being estimated
by the Office of Legislative Services ranging between one and
two million dollars.
This law has proven to be very divisive, supporters claiming
that the law will reduce red tape and encourage healthy
development of New Jersey and opponents claiming that the bill
will produce the opposite of smart growth and will be
destructive to New Jersey in the long run.
This paper attempts to outline the arguments of supporters
and opponents of the Fast Track law, with specific attention to
the arguments of the New Jersey chapter of the Sierra Club1,
see how the principles of the Green Party fit in with the debate
and look for the appropriate stance for the Green Party of New
Jersey.
In Support
The principle vocal supporters of this law are the
legislators who passed it and developers and business
associations who expect to benefit from it. There are three
major arguments in support of the Fast Track bill. The first is
that this law eliminates red tape and makes the permit process
more efficient. The second is that the law will have no negative
effect on the environment of New Jersey. The third argument is
that the law will provide several important financial incentives
to develop New Jersey in a healthy manner.
Eliminating what Governor McGreevey called "excessive
bureaucracy" is the first advantage that supporters of the
bill point to. By streamlining the process and imposing tight
time deadlines, the granting of permits statewide will become
more efficient and predictable. Rather than getting caught up in
timely battles for permits, a decision will have to be made
quickly. Providing certainty to the process will also,
supporters argue, benefit all interested parties.
Additionally, supporters maintain that this bill in no way
affects current legislation to protect New Jersey’s land and
natural resources. The law does not reduce or weaken any
environmental standards or laws. For any accelerated permit to
be approved, it must meet every environmental standard in
existence today.
The law would also not result in an overdeveloped New Jersey
as groups like the New Jersey Business & Industry
Association are quick to point out. The only areas that
fast-track permits can be received are in areas already
designated by the state as in need of redevelopment. Therefore,
current state planning missions would only be accelerated, not
overturned. Additionally, supporters argue that since these are
state permits, local zoning and planning will not be superceded
or adversely affected.
Finally, supporters point to the expected financial benefits
of this fast-track legislation to interested parties. For
developers, this means that they will be more likely to look to
redevelop in developed areas rather than going to undeveloped
land. Currently there is an economic incentive to build on
undeveloped land. It is simply cheaper to break ground in an
open field than tear down an old building and getting residents
and businesses in the area to agree to your presence.
Putting fast-track legislation into place for developed areas
means that the long and very costly process of getting a permit
will be reduced substantially in these smart growth areas. This
could have the effect of taking pressure off of open spaces and
farmland as businesses reevaluate the cost-effectiveness of
these areas in light of the new conditions this law provides.
Fast Track legislation also can provide real economic
development to the areas included. Certainly the streamlined
process will encourage businesses to move into these areas.
Expansions and relocations will happen more rapidly than under
old permit granting processes and this will provide more jobs in
New Jersey.
The presence of more businesses means a larger industrial tax
base for towns in the smart growth areas. These tax receipts can
provide meaningful income to towns that sorely need it.
Supporters of the law are also quick to point out that with
the restriction of growth in both the Pinelands and the
Highlands, the people of New Jersey need to be realistic and
understand that growth must happen somewhere. These smart growth
areas have already been picked out as places that can
substantially benefit from development or redevelopment.
In Opposition
The most vocal opponents of the Fast Track legislation are
environmental groups, specifically the Sierra Club, and several
community coalitions. These protestors claim that the passage of
this law rolls back decades of work done to protect New Jersey’s
resources and rein in sprawl. Additionally, the EPA is voicing
concerns about the law.
As a background, it is important to note that the Highlands
Water Protection and Planning Act, passed in June 2004,
preserves over 1,000 square miles of potentially lucrative
undeveloped land. Many protest that the Fast Track bill is a
payback to the developers for having accepted the Highlands
legislation, and now the state is in for more destruction to its
environment than prior to the two laws.
The following explanation of opposition arguments looks
specifically at the points promulgated by the Sierra Club of New
Jersey, as they have put forth the most complete set of
arguments. There has been a wide variety of criticism of the
law, falling into essentially three categories: complaints about
law specifics, unintended consequences, and questions of
constitutionality and conflict with current regulations.
Complaints about Law Specifics
Forty-five days prior to an automatic approval is far too
little time for the appropriate consideration for many permits,
opponents argue. In addition, the law treats many different
types of permits equally. More complex situations unarguably
call for more time; however, this law will allow for extensions
only if both the developer and the state agency agree.
Obviously, in the face of automatic approval, it is likely that
most developers will be unwilling to agree to time extensions.
Within the included smart growth areas are many sites that
have been identified by various environmental groups as
important habitats for threatened and endangered species. These
areas, now designated for growth, may be wiped out, causing
direct harm to species of life that need the most help.
Allowing for automatic approval will take zoning control away
from municipalities because of the definition of includable land
in this act. Opponents maintain that this means that officials
most aware of development issues in their area will be unable to
control development problems.
The extent to which local zoning will be superceded by the
Fast Track law is uncertain. The current method for developing
the State Plan consists of a process approximately two years
long where all levels of government are meant to compare state,
county and municipality maps and come to an agreement on the
final State Plan map.
The review of the maps is meant to be an on-going process.
How this process will be altered, either explicitly, or due to a
change in power-base is unknown. It is likely that the Ombudsman
will participate in this process and possible that his influence
could affect local zoning issues.
The scope of permits which will be allowed to be
automatically approved is also extremely controversial. Subjects
for Fast Track could potentially put the public and the future
of New Jersey in serious jeopardy. Some of the possible
automatic permits are hazardous waste cleanups, toxic chemical
releases, wetlands permits, and pesticide applications.
Opponents also argue that the Governor-appointed Ombudsman
will serve as a lobbyist to developers, ensuring speedy passage
through the permit process. The "Smart Growth Czar,"
as many are calling him, is given an implicit veto power within
his own and other agencies in New Jersey regarding permit
processes.
The fiscal analysis of this legislation is incomplete at this
time. While eventually the additional receipts from expedited
permits will provide the funds for Smart Growth employees, for
at least the first and probably second year, these salaries will
have to be paid from the General Fund.
The assumption that more development will lead to additional
tax receipts for the areas is also challenged by opponents. With
significant tax shelters and inducements, businesses may end up
paying little to nothing in taxes.
The creation of the Smart Growth Court, also in this law,
creates pressure for permits to be accepted. If denied through
the fast-track process, developers have the option of contesting
the decision in the Smart Growth Court. Incredible resources and
time will be required to defend permit denials, and staff will
likely consider this at the time of their decision.
