N.J. Admin. Code § 7:14A-22.22 - Sewer ban exemption criteria

(a) A sewer ban exemption may be granted for projects that meet any one of the following criteria:

1. If the proposed project will have a total projected flow of 600 gallons per day or less, calculated in accordance with the Department's flow criteria contained in 7:14A-23.3, and meets the following requirements:

i. The project will be constructed and/or operated on a tax lot which was in existence prior to the effective date of the ban, or on a tax lot which is the result of a one-time subdivision of a single lot into two lots, subsequent to the date of the ban. In this instance, a total of 600 gallons per day may be approved for the combination of both lots; and

ii. The proposed project does not require a sewer extension;

2. If the project will replace a building/facility, at the same location, which was in existence prior to the effective date of the sewer connection ban, and was or is currently connected to the treatment works subject to the ban, and the replacement facility will create flow equal to or less than the former facility, calculated in accordance with either one of the following:

i. The projected flow of the proposed building is less than or equal to the projected flow of the existing building based on the criteria contained in N.J.A.C. 7:14A-23.3; or

ii. The projected flow of the proposed facility, based on N.J.A.C. 7:14A-23.3, is equal to or less than the actual flow of the existing building, based upon water use records for the most recent 12 month period available;

3. If, in the Department's opinion, there exists a sufficient public need for the proposed project such as for health, safety, food or shelter, there are no reasonable alternatives including alternate sites, and the project meets any one of the following:

i. The project is publicly owned or operated, including, but not limited to, a long term health care facility which has received a certification of need from the New Jersey Department of Health, a hospital, a fire or police station or a public school or expansion of an existing New Jersey accredited private school for primary, secondary or higher education; or

ii. At least 10 percent of the project's operating costs are provided by a public entity such as the State, county, municipality or an agency of such, the project is for the purpose of ensuring the public welfare by a "not-for-profit" organization. Such projects include a volunteer ambulance squad, school or facility for people with disabilities, an emergency shelter for persons in need, and other projects of a similar nature;

4. If the project is designed to house people with low or moderate incomes, and the affected sewerage authority or municipality is in compliance with either an administrative consent order with the Department, or a judicial consent order with the U.S. Environmental Protection Agency, or has obtained a treatment works approval and awarded a contract for construction of facilities necessary to eliminate the reasons for the sewer connection ban, and it can be demonstrated that the project meets any one of the following requirements:

i. The project is to be occupied exclusively by senior citizens with low incomes, and will be owned or operated by a not-for-profit organization incorporated pursuant to N.J.S.A. 55:14I-1 et seq.; and either

(1) The project is to be built with funds provided pursuant to Section 202 of the Federal Housing Act ( 12 U.S.C.A. 1701q ) and the monthly rents will be subsidized by funds provided pursuant to section 8 of the U.S. Housing Act of 1937 ( 42 U.S.C.A. 1437 ); or

(2) The project is to be built with funds provided pursuant to section 515 of Title V of the Housing Act of 1949 as amended ( 42 U.S.C.A. 1485 ), and the monthly rents will be subsidized by funds provided pursuant thereto;

ii. The project is a rental housing project which meets all of the following conditions:

(1) The project will be located in a municipality which is, or has been at one time, designated as an Urban Aid Municipality as defined by the Department of Community Affairs;

(2) Twenty percent of the housing units will be occupied by low income households as defined pursuant to the Fair Housing Act (52:27D-301 et seq., N.J.A.C. 5:92-1.3 and N.J.A.C. 5:14-1.3(a) );

(3) The project is receiving, or has a commitment from the Department of Community Affairs to receive grants or loans through either the Urban Multi-Family Production Program, P.L. 1988, c.47, or the Neighborhood Preservation Balanced Housing Program implemented by the Department of Community Affairs at N.J.A.C. 5:14; and

(4) The housing project consists of buildings or structures to be occupied for residential, rental purposes only, and the units will remain rental for no less than 15 years if the project is receiving or has a commitment to receive a grant or loan through the New Jersey Urban Multi-Family Production Program, or for the amount of time set forth at N.J.A.C. 5:14 if the project is receiving or has a commitment to receive a grant or loan through the Neighborhood Preservation Balanced Housing Program;

iii. Occupancy of the proposed housing project is limited solely to households of low and moderate income as defined pursuant to the Fair Housing Act, 52:27D-301 et seq., and the project meets all of the following conditions:

(1) The housing project consists of buildings or structures to be occupied for residential purposes only;

(2) The owner of the proposed housing project is, or will be, a public entity or a nonprofit corporation or association, including, but not limited to, a mutual housing sponsor as defined at 52:27D-59 et seq.; and

(3) The project is receiving, or has a commitment to receive public funding pursuant to the Fair Housing Act, 52:27D-301 et seq. in accordance with all applicable rules adopted by the Council of Affordable Housing at N.J.A.C. 5:91 and 5:92, the Department of Community Affairs at N.J.A.C. 5:14 and/or the New Jersey Housing and Mortgage Finance Agency at N.J.A.C. 5:80; or

iv. Occupancy of the proposed housing project is limited solely to households of low or moderate income, and the project has been approved by the Council on Affordable Housing (COAH) as part of a "Regional Contribution Agreement";

5. If an existing building or group of buildings constructed prior to the effective date of the sewer connection ban with lawfully constructed, individual subsurface sewage disposal systems is certified by the administrative authority and proven to the satisfaction of the Department to be currently creating a health hazard due to sewage overflow, contamination of the waters of the State, or other malfunction and a New Jersey professional engineer, geologist or soil scientist who is knowledgeable of soils and subsurface disposal system design certifies that the system cannot be reasonably rehabilitated and submits appropriate supporting documentation acceptable to the Department;

6. If the project is for a ground water remedial action which has been approved by the Department's Site Remediation Program and for which no other feasible discharge alternatives exist including on-site treatment and discharge to ground water, or discharge to an alternate surface water location. Exemptions will not be granted under this category for projects located in areas subject to a sewer connection ban due to inadequate conveyance capacity or in situations where the additional discharge will create bypasses or other health hazards at treatment plants that have reached their design capacity, unless adequate provisions for conveyance are included in the project scope;

7. If a project is for a not-for-profit organization that serves a fundamental public need such as providing food/shelter and other essential services regardless of race, creed or religion, to the needy or people with disabilities, meets the criteria for a tax exempt charitable organization under section 501(c)(3) of the Internal Revenue Code, and no alternative to the proposal exists, then the applicant may apply for a sewer ban exemption. The above conditions in this paragraph, by themselves, are not adequate to entitle the applicant to an exemption and the Department shall rule on applications based on the amount of anticipated flow, the progress the affected sewerage authority has made toward resolving the reason for the ban imposition, and the feasibility of alternative discharge methods or alternate facility sites.

8. If the municipality, prior to November 3, 1986, has issued a building permit, or preliminary or final subdivision approval, provided that construction of improvements has taken place, the remaining construction covered by such permit or approval may be eligible for an exemption, providing the applicant shows that, in good faith reliance upon the permit or approval, substantial expenditures have been made by the applicant for physical improvements to the property prior to the effective date of the ban.

i. The payment of taxes, the purchase price, expenditures for preparation of engineering and architectural plans and for legal fees, and other costs not expended for physical improvements to the land shall be ineligible for consideration in determination of "substantial expenditures."

ii. All claims for eligible expenditures shall be accompanied by certified true copies of contracts, receipts or invoices. An unverified list of expenses is not acceptable for establishing expenditures. In addition, the applicant shall submit an estimate of the total project cost with a certification that the estimate is true and accurate.

iii. For the purposes of this paragraph, "substantial expenditures" shall mean those eligible costs in excess of:

(1) 25 percent of the cost of those projects whose total cost is equal to or less than $ 100,000;

(2) $ 25,000 plus 10 percent of the costs in excess of $ 100,000 for those projects whose total cost is less than $ 10,000,000 but more than $ 100,000; or

(3) $ 1,015,000 plus five percent of the project costs in excess of $ 10,000,000 for those projects whose total cost exceeds this amount.

Notes

N.J. Admin. Code § 7:14A-22.22