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NEW JERSEY REGISTER
VOLUME 37, NUMBER 15
MONDAY, AUGUST 1, 2005
RULE PROPOSAL
LAW AND PUBLIC SAFETY
DIVISION OF CONSUMER AFFAIRS
STATE BOARD OF PROFESSIONAL PLANNERS
STATE BOARD OF PROFESSIONAL PLANNERS RULES

Proposed Readoption with Amendments: N.J.A.C. 13:41

Authorized By: State Board of Professional Planners, James Hsu, Executive Director.

Authority: N.J.S.A. 45:14A-4 and 45:14A-11.
Calendar Reference: See Summary below for explanation of exception to calendar requirement.
Proposal Number: PRN 2005-269.

Submit comments by September 30, 2005 to:

James Hsu, Executive Director

State Board of Professional Planners

124 Halsey Street

PO Box 45016

Newark, New Jersey 07101

The agency proposal follows:

Summary

The State Board of Professional Planners (the Board) is proposing to readopt N.J.A.C. 13:41 with amendments. Pursuant to Executive Order No. 66(1978) and N.J.S.A. 52:14B-5.1c, these rules are scheduled to expire on December 20, 2005. In compliance with the Executive Order, the Board undertook a thorough review of the existing provisions of N.J.A.C. 13:41 in order to delete unnecessary or unreasonable rules and to clarify existing provisions. The Board believes that the rules proposed for readoption, as amended, are necessary, reasonable, understandable and responsive to the purpose for which they were promulgated. The following is a summary of the subchapters of N.J.A.C. 13:41 which the Board proposes to readopt, as well as a summary of the proposed amendments.

The Board proposes to readopt without amendment Subchapter 1 which sets forth the rules governing the seal that a professional planner must obtain and use. Specifically, N.J.A.C. 13:41-1.1 sets forth the requirement that every licensed professional planner must obtain a seal containing the planner's name, license number and the legend "licensed professional planner" in the design authorized by the Board. N.J.A.C. 13:41-1.2 sets forth where a licensed professional planner must sign and date a document. N.J.A.C. 13:41-1.3 sets forth the document sealing requirements for licensed professional planners.

Subchapter 2 sets forth the rules governing misconduct. The Board proposes to readopt with a technical amendment N.J.A.C. 13:41-2.1, which sets forth the numerous practices of professional planning that would constitute misconduct. The technical amendment proposed by the Board will correct the statutory citation to the statutes governing licensure of professional planners.

Subchapter 3 contains general provisions of the Board. N.J.A.C. 13:41-3.1 is reserved. The Board proposes to amend N.J.A.C. 13:41-3.2 which sets forth the fee schedule. A proposed amendment to this section will clarify that the Board sets the fee only for the State part of the examination which it administers. The National part of the examination is administered by the American Institute of Certified Planners (AICP) which also sets the fee for this part. The Board also proposes to add language concerning the fee for inactive licenses which will be established in the future by the Director of Consumer Affairs by rule. The Board proposes a technical amendment to N.J.A.C. 13:41-3.3 which requires that only licensed professional planners may be employed in certain titles held by employees of State and political subdivisions. The proposed amendment will correct the name of the Board as it is used in this section.

Subchapter 4 establishes the permissible division of responsibility in submission of site plans and major subdivision plats. The Board proposes to make a technical amendment to N.J.A.C. 13:41-4.1 which contains general provisions concerning definitions and the preparation and submission of preliminary and final site plans and major subdivision plats. The proposed amendment will correct the citation of the "Municipal Land Use Law." N.J.A.C. 13:41-4.2 provides that only licensed land surveyors can depict the existing conditions on a site plan and that other closely allied licensed professionals who can depict general locations of conditions on a site plan in addition to other persons acceptable to the reviewing governmental entity. N.J.A.C. 13:41-4.3 sets forth who can prepare the various aspects of the site plan. N.J.A.C. 13:41-4.4 identifies which licensed professional is allowed to prepare various components of major subdivision plans. N.J.A.C. 13:41-4.5 states that informal site plans not required by local ordinances are excluded from this rule and that no municipal or county ordinance, policy or action purporting to define the scope of professional activity of closely allied licensed professionals in the preparation of site plans or major subdivision will reduce or expand the scope of professional practice recognized by the boards regulating those professions. The Board proposes a technical amendment to N.J.A.C. 13:41-4.5 to correct grammar.

Subchapter 5 sets forth the requirements and procedures for applicants for licensure and for license renewal by licensees. N.J.A.C. 13:41-5.1 sets forth the purpose of the subchapter. N.J.A.C. 13:41-5.2 sets forth the definitions of certain terms used in the subchapter. N.J.A.C. 13:41-5.3 sets forth the licensing requirements for professional planners. The Board proposes to amend N.J.A.C. 13:41-5.4 which sets forth the examination requirements for applicants. A proposed amendment to this section will clarify that the two parts of the examination consist of the National portion administered by the AICP and the State portion administered by the Board and that applicants have the responsibility to pay appropriate fees to the respective administrator of each part of the examination. In addition, the proposed amendments clarify language that requires applicants to file new applications and pay the appropriate fees if they take and fail both parts of the examination or if they fail to successfully complete both the National and State parts of the examination within two years of application. Furthermore, the proposed amendments clarify that an applicant must wait at least six months before retaking a failed part of the examination. A proposed amendment also clarifies that an applicant who is a licensed professional engineer, architect, landscape architect or land surveyor and, therefore, exempt from taking the National part of the examination may be re-examined upon filing a new application and the payment of the application fee, provided that at least six months has elapsed since the date that the applicant took that examination part. The Board proposes to amend N.J.A.C. 13:41-5.5 which concerns the procedures for the renewal of licenses, the suspension of licenses of those who fail to renew and for the reinstatement of inactive and suspended licenses. Proposed amendments to this section will clarify the procedures for reinstatement so that they conform with the requirements of N.J.S.A. 45:1-7.2 regarding the information that an applicant for reinstatement must provide. Specifically, the proposed amendments provide that a license that is not renewed 30 days after its expiration date will be suspended without a hearing. The proposed amendments also require that a licensee whose license was suspended for failing to renew and who seeks reinstatement must pay all past delinquent biennial renewal fees in addition to the reinstatement fee and renewal fee for the current biennial period and must submit an affidavit of employment listing each job held during the period of license suspension. The proposed amendments also clarify that applicants for reinstatement who have been inactive or suspended for over five years must successfully complete the examination required for initial licensure as a licensed professional planner.

The Board has determined that the comment period for this proposal shall be 60 days; therefore, pursuant to N.J.A.C. 1:30-3.3(a)5, this proposal is excepted from the rulemaking calendar requirement.

Social Impact

The Board believes that the readoption of the existing rules will continue to protect the health, safety and welfare of the citizens of New Jersey by identifying those individuals who are qualified and legally authorized to engage in the practice of professional planning. The rules positively affect the regulated community by clarifying the varied aspects of the practice of professional planning for the benefit of all licensed practitioners and applicants for licensure. The readoption of N.J.A.C. 13:41 is essential in order for the Board to continue to regulate the practice of professional planners, to identify those individuals who are qualified to engage in the practice of professional planning, and to ensure that every licensed practitioner is aware of the procedures involved with licensure. The readoption of N.J.A.C. 13:41 continues the accepted standards of the practice of professional planning established by the Board and, by so doing, provides licensed planners with a clear and comprehensive set of rules to guide them in their professional practice. Accordingly, the Board believes that the rules proposed for readoption will have a positive impact upon the licensed community and upon the consumers they serve. The Board believes that the proposed amendments to N.J.A.C. 13:41-2.1, 3.2, 3.3, 4.1, 5.4 and 5.5 will clarify the requirements for obtaining, renewing and reinstating a license and will benefit applicants, licensees and the general public.

Economic Impact

The Board anticipates that the rules proposed for readoption and the proposed amendments will not impose any new or additional costs upon applicants for licensure, licensees or consumers. N.J.A.C. 13:41-1.1 will continue to impose an economic impact upon licensees because every licensed professional planner must obtain a seal containing the required information stipulated in the rule.

Subchapter 2, concerning misconduct, will continue to impose an economic impact upon those licensees who engage in any of the enumerated prohibited acts outlined at N.J.A.C. 13:41-2.1.

N.J.A.C. 13:41-3.2, which sets forth the Board's fee schedule, will continue to impose an economic impact upon licensees although no new or additional fees will be imposed by the Board. The fee schedule sets forth the fees for application for a professional planner or a planner-in-training license; examination fees; initial license fee; biennial license fee and renewal; late renewal fee; reinstatement fee; duplicate license; name change and duplicate wall certificate.

Subchapter 4, which divides the responsibility for the submission of site plans and major subdivision plats, will continue to exact some cost on the professional planner's practice by prohibiting the licensee from performing specific work that the licensee may be competent to perform but is excluded based upon the rule and by statute. Any such cost may be passed on to consumers in the cost of services; however, the Board believes that these costs will be minimal and outweighed by the public benefit of ensuring proper conduct within the profession.

Subchapter 5, concerning the issuance, renewal and reinstatement of licenses, will continue to have an economic impact on applicants and licensees who are required to comply with these provisions and pay the required fees for renewal and reinstatement of their licenses. The Board believes that any economic impact experienced by applicants for licensure or licensees as a result of the rules proposed for readoption with amendments, is significantly outweighed by the necessary consumer protection measures established by the rules in N.J.A.C. 13:41.

Federal Standards Statement

A Federal standards analysis is not required because the rules proposed for readoption with amendments are subject to State statutory requirements and are not subject to any Federal requirements.

Jobs Impact The Board does not believe that the rules proposed for readoption with amendments will either increase or decrease jobs in the State.

Agriculture Industry Impact

The rules proposed for readoption with amendments will have no impact on the agriculture industry in the State.

Regulatory Flexibility Analysis

The Regulatory Flexibility Act (the Act), N.J.S.A. 52:14B-16 et seq., requires the Board to give a description of the types and an estimate of the number of small businesses to which the proposed readoption with amendments will apply. Currently, the Board licenses approximately 3,100 professional planners. If, for the purposes of the Act, Board licensees are considered "small businesses," then the following analysis applies.

The Act requires the Board to set forth the reporting, recordkeeping and other compliance requirements of the proposed readoption. The Act further requires the Board to estimate the initial and annual compliance costs of the proposed readoption, to outline the manner in which it has designed the proposed readoption to minimize any adverse economic impact upon small businesses, and to set forth whether the proposed readoption establishes differing compliance requirements for small businesses.

The rules proposed for readoption and the proposed amendments will continue to impose compliance requirements upon licensees. More specifically, N.J.A.C. 13:41-1.1, requires that every licensed professional planner obtain a seal which contains the planner's name, license number and the legend "licensed professional planner" in the design authorized by the Board. N.J.A.C. 13:41- 1.2 requires the planner to sign and date the document below the seal. The seal must be fixed on the first page of a report and on each drawing if submitted separately. On maps and drawings, a title block must be large enough to be legible. The rule also prohibits the removal of a seal or title block from any print or reproduction. N.J.A.C. 13:41-1.3 sets forth the requirements with which a licensee must comply when sealing documents. More specifically, N.J.A.C. 13:41-1.3(a) provides that every document issued by the licensed professional planner must be signed and sealed except that no seal shall be required on maps of existing land use, existing facilities or similar maps indicating the findings of surveys or studies in mapped form. N.J.A.C. 13:41-1.3(b) imposes recordkeeping and compliance requirements since the rule establishes that when multiple copies of a report are needed, the original copy shall be sealed and all other copies shall include on the title page a statement indicating that the original report was appropriately signed and sealed in accordance with law. In addition, N.J.A.C. 13:41-1.3(b) requires licensees to transmit an original sealed report to a client upon request. N.J.A.C. 13:41-1.3(c) imposes a compliance requirement in that it requires licensees to sign and seal map prints, but not original tracings, when submitted as public documents.

N.J.A.C. 13:41-2.1, which enumerates the prohibited acts of licensed professional planners, will continue to impose several reporting and compliance requirements upon licensees. More specifically, N.J.A.C. 13:41-2.1(a) sets forth that misconduct in the practice of professional planning includes: acting for a licensee's client or employer in professional matters otherwise than as a faithful agent or trustee; and disregarding the safety, health and welfare of the public in the performance of the licensee's professional duties, such as preparing or signing and sealing documents which are not in conformity with accepted standards. If the client or employer insists that the licensee perform such conduct, the licensee must notify the Board or other appropriate governmental authority and withdraw from further service on the project. The rule also prohibits using or approving the use of false, fraudulent, or deceptive advertising; or charging for work not done or hours not spent. The rule also prohibits a licensee from engaging in any activity which involves the licensee in a conflict of interest, such as: rendering professional services, or contracting to render such services, where the licensee's ability to faithfully and objectively serve the client is materially compromised by other personal, professional or financial interests or responsibilities; while a licensee, or any firm with which the licensee is associated, is acting as a member, advisor, employee or consultant to a governmental body or agency, undertaking work for private clients where such work will be submitted to the governmental body or agency for review and approval; while acting as a member, advisor, employee or consultant to a governmental body or agency, participating in the review, approval or recommendation for approval of plans, specifications, reports or other professional work submitted on behalf of any individual or entity with whom the licensee or any firm with which the licensee is associated possesses any continuing or anticipated professional or financial relationship. The rule requires a licensee to avoid any conflict by submitting to the governmental body or agency a written notice of the licensee's refusal from any participation in the matter before the governmental body or agency; or permanently terminating, or declining to enter into, the professional or financial relationship and providing the governmental body or agency with written notice, while acting as a member or employee of a governmental body or agency, soliciting or accepting a professional contract from the governmental body or agency. However, where a licensee acts as an advisor or consultant to a governmental body or agency, neither the licensee nor a firm with which the licensee is associated, is precluded from accepting a professional contract from the governmental body or agency and providing advice, recommendations and counsel with regard to such work. The rule also prohibits a licensee from accepting financial or other compensation or remuneration from more than one interested party for the same service or for services pertaining to the same work unless there has been full written disclosure and written consent obtained from all interested parties and from material or equipment suppliers for specifying their product or for recommending their employment by any party. The rule also prohibits a licensee from accepting commissions or allowances, directly or indirectly, from contractors or other persons dealing with the licensee's client or employer in connection with work for which the licensee is responsible to a client or employer; affixing the licensee's seal to any documents which were not prepared by the licensee or by employees or subordinates under the licensee's supervision; and permitting any person not appropriately licensed pursuant to N.J.S.A. 45:14A-1 to act for or on behalf of the licensee as a representative, surrogate or agent in an appearance before any public or private body for the purpose of rendering professional planning services.

N.J.A.C. 13:41-3.2, the Board's fee schedule, will continue to impose compliance requirements with respect to payments mandated for the application for a professional planner or a planner-in-training license; State part examination fee; initial license fee; biennial license fee and renewal; late renewal fee; reinstatement fee; duplicate license; name change and duplicate wall certificate.

Subchapter 4, which sets forth the permissible division of responsibility in submission of site plans and major subdivision plans, will continue to impose compliance requirements upon licensees. N.J.A.C. 13:41-4.1 will continue to impose compliance requirements upon licensees because the rule requires that preparation and submission of the various elements of a preliminary or final site plan or major subdivision plat must be within the professional scope of the various professions. N.J.A.C. 13:41-4.2 imposes compliance requirements upon licensees because this rule identifies those professionals authorized to perform certain tasks involved in a site plan. More specifically, N.J.A.C. 13:41-4.2(a) provides that a survey can be only performed by a land surveyor. N.J.A.C. 13:41-4.2(b) sets forth that vegetation, general flood plain determination, or general location of utilities, buildings, or structures can be performed only by an architect, planner, engineer, land surveyor, certified landscape architect, or other person acceptable to the reviewing governmental body. N.J.A.C. 13:41-4.3, concerning the preparation of site plan, imposes compliance requirements because this rule sets out the aspects of a site plan which may be performed by a professional planner, engineer, architect, or certified landscape architect. N.J.A.C. 13:41-4.4, concerning the preparation of a major subdivision plan, also imposes compliance requirements because it establishes which professionals can perform each task for a major subdivision plan. N.J.A.C. 13:41-4.5(a) imposes compliance requirements because the rule provides that informal site plans, not required by local ordinances are excluded from this rule. N.J.A.C. 13:41-4.5(b) also imposes compliance requirements because the rule establishes that no municipal or county ordinance, policy or action purporting to define the scope of professional activity of architects, engineers, land surveyors, planners, or certified landscape architects in the preparation of site plans or major subdivisions shall reduce or expand the scope of professional practice recognized by the regulating boards. The Board proposes an amendment to make a grammatical correction.

Subchapter 5, concerning the licensing of professional planners, continues to impose compliance requirements upon licensees. N.J.A.C. 13:41-5.3 sets forth the requirements for applicants for licensure as professional planners, including the education, examination, experience, and fee requirements imposed by the Board. N.J.A.C. 13:41-5.4 sets forth the specific examination requirements, including the payment of examination fees. N.J.A.C. 13:41-5.5 requires that a licensee who wishes to renew a biennial license must submit an application and pay a fee. In addition, this section also sets forth the requirements for inactive licensees and those whose licenses have been suspended for failure to renew, including taking the examination required for initial licensure if the individual had been on inactive status or suspended for more than five years.

No additional professional services will be needed to comply with the rules proposed for readoption with amendments. Moreover, the Board does not believe that there will be any significant, additional economic impact upon licensees as a result of the rules proposed for readoption with amendments. The Board also believes that the rules proposed for readoption with amendments should be uniformly applied to all licensees in order to ensure the health, welfare and safety of the general public in the practice of professional planners; and, therefore, no differing compliance requirements for any licensee are provided.

Smart Growth Impact

The Board does not anticipate that the rules proposed for readoption with amendments will have any impact on the achievement of smart growth or on implementation of the State Development and Redevelopment Plan, otherwise known as the State Plan.

Full text of the rules proposed for readoption can be found in the New Jersey Administrative Code at N.J.A.C. 13:41.

Full text of the proposed amendments follows :

<< NJ ADC 13:41-2.1 >>

13:41-2.1 Enumeration of prohibited acts

(a) Misconduct in the practice of professional planning shall include, but not be limited to, the following:

1.-6. (No change.)

7. Permitting any person not appropriately licensed pursuant to N.J.S.A. 45:14A-1 <<+et seq.+>> to act for or on behalf of the licensee as a representative, surrogate or agent in appearance before any public or private body for the purpose of rendering professional planning services.

<< NJ ADC 13:41-3.2 >>

13:41-3.2 Fee schedule

(a) The fees charged by the State Board of Professional Planners shall be:

1. (No change.)

2. <<+State Part+>> Examination <<-Fees:->> <<+Fee $200.00+>><<-->>

<<-i. Combined National and State Examinations $275.00->>

ii. State Examination only $200.00<<-->>

iii. National Examination only $225.00<<-->>

3.-9. (No change.)

<<+10. Inactive License Fee (to be established by Director by rule)+>>

<< NJ ADC 13:41-3.3 >>

13:41-3.3 Employment of only licensed professional planners by State or political subdivisions

An employee of the State government or any of its subdivisions holding the civil service title of Director of Planning, Assistant Director of Planning or Supervising Planner, or in subdivisions which are not subject to the Civil Service Act, the equivalent of these titles, shall be deemed to be a Professional Planner in responsible charge of planning work. The employee shall hold a Professional Planners license issued by the <<+State+>> Board of Professional Planners.

<< NJ ADC 13:41-4 >>

SUBCHAPTER 4. PERMISSIBLE DIVISION OF RESPONSIBILITY IN SUBMISSION OF SITE PLANS AND MAJOR SUBDIVISION PLATS

<< NJ ADC 13:41-4.1 >>

13:41-4.1 General provisions

(a) Definitions: All words, terms, and phrases shall be as defined in the Municipal Land Use <<-Act->> <<+Law+>>, N.J.S.A. 40:55D<<+-1+>> et seq.

(b) (No change.)

<< NJ ADC 13:41-4.5 >>

13:41-4.5 Effect of local ordinances

(a) (No change.)

(b) No municipal or county ordinance, policy or action purporting to define the scope of professional activity of architects, engineers, land surveyors, planners or certified landscape architects in the preparation of site plans or major subdivision<<+s+>> shall reduce or expand the scope of professional practice recognized by the boards.

<< NJ ADC 13:41-5 >>

SUBCHAPTER 5. LICENSING

<< NJ ADC 13:41-5.4 >>

13:41-5.4 Examination requirements

(a) <<-An->> <<+Except as provided in (g) below, an+>> applicant for licensure as a professional planner shall obtain a passing grade on both <<+ the National and State+>> parts of the professional planner examination.

<<-1.->><<+(b)+>> The <<-first->> <<+National+>> part of the examination, administered by the American Institute of Certified Planners (AICP), shall consist of the following subjects:

Recodify existing i.-iv. as <<+1.-4.+>> (No change in text.)

<<-2.->><<+(c)+>> The <<-second->> <<+State+>> part of the examination<<-, which shall be administered by the Board,->> shall cover planning law, procedures and practices as contained in the Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq.<<+,+>> and the related planning requirements of New Jersey statutes and regulations which directly affect planning practices and procedures.

<<-(b) If a candidate qualifies to take the initial examination but does not pass, the applicant's application shall be held for a period of two consecutive years. After two years, if the applicant does not take the examination or does not pass the examination, a new application shall be filed with the Board.->>

<<+(d) An applicant shall pay the appropriate examination fee for each part the applicant will take or retake and shall make payment of the fee for the National part of the examination to AICP and payment of the fee for the State part to the Board.+>>

<<+(e) An applicant shall be required to file a new application with the Board and pay the appropriate application fee if the applicant:+>>

<<+1. Takes and fails both parts of the examination; or+>>

<<+2. Fails to successfully complete both parts of the examination within two years of his or her application to the Board.+>>

<<+(f) An applicant shall not retake a part of the examination until at least six months has elapsed since the date on which that part was last taken.+>>

<<-(c) A person->> <<+(g) An applicant, who is+>> licensed in New Jersey as <<-an->> <<+a professional+>> engineer, architect, landscape architect or land surveyor<<+,+>> is exempt from taking the <<- first->> <<+National+>> part of the examination and is only required to take the <<-second->> <<+State+>> part of the examination as described in <<-(a)2->> <<+(c)+>> above. <<+An applicant under this subsection, who has taken and failed the State part of the examination, may be re-examined upon filing a new application and the payment of the application fee, provided that at least six months has elapsed since the date that the applicant took that examination part.+>>

<< NJ ADC 13:41-5.5 >>

13:41-5.5 License issuance; renewal

(a)-(c) (No change.)

(d) A license that is not renewed within 30 days of its expiration date shall <<-expire->> <<+be suspended without a hearing+>>. Any individual who continues to practice with <<-an expired->> <<+a suspended+>> license after 30 days following the license expiration date shall be deemed to be engaged in unlicensed practice. Thereafter, the licensee shall be required to <<-apply->><<+:+>>

<<+1. Apply+>> for reinstatement <<-and to pay->><<+;+>>

<<+2. Pay+>> the reinstatement fee <<-as set forth in N.J.A.C. 13:41-3.2 in addition to->><<+,+>> the <<+renewal+>> fee for the current biennial period <<+and all past delinquent biennial renewal fees, as set forth in N.J.A.C. 13:41-3.2; and+>>

<<+3. Submit an affidavit of employment listing each job held during the period of suspended license which includes the name, address, and telephone number of each employer.+>>

<<+(e) A licensee who elected inactive status and has been on inactive status for five years or less may be reinstated by the Board upon completion of the following:+>>

<<+1. Submission of a completed application;+>>

<<+2. Payment of the current biennial renewal fee as set forth in N.J.A.C. 13:41-3.2; and+>>

<<+3. Submission of an affidavit of employment listing each job held during the period the licensee or registrant was on inactive status which includes the name, address, and telephone number of each employer.+>>

<<-(e)->><<+(f)+>> <<-An->> <<+In addition to any other requirements for reinstatement as set forth in (d) or (e) above, as applicable, an+>> individual whose license has been <<-expired->> <<+suspended or on inactive status+>> for a period more than five years shall successfully complete the examination required for initial licensure as a licensed Professional Planner.

<<-(f)->><<+(g)+>> (No change in text.)



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