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Stormwater in Franklin, Explained: Ordinance 4419-23, the Appeal and the Watershed Plan
Why the courts held that Franklin's 2023 stormwater ordinance could not reach two warehouse applications already on file, what the regional Lower Millstone watershed plan is for, how the township handles private stormwater systems, and the drainage problems residents have raised.
The short version
- In September 2023 Franklin adopted Ordinance 4419-23, applying the state’s new stormwater rules to every application that did not yet have final approval.
- Two warehouse applicants already in the pipeline, B9 Schoolhouse Owner and Concore Realty, sued. The trial court ruled for them in December 2024, and the Appellate Division affirmed on March 13, 2026 (A-1461-24).
- In March 2026 the township joined a regional watershed plan for the Lower Millstone River, required by its state stormwater permit, at a cost to Franklin of up to $77,725.
- Residents have raised drainage problems at Council meetings, most recently on Bennington Parkway in October 2026.
The stormwater ordinance and the appeal
What happened, from the Appellate Division’s opinion:
| Date | Event |
|---|---|
| May 5, 2022 | B9 applies for site plan approval for a warehouse; deemed complete August 4, 2022 |
| January 20, 2023 | Concore applies; deemed complete February 21, 2023 |
| July 17, 2023 | The state Department of Environmental Protection (NJDEP) amends its stormwater rules (N.J.A.C. 7:8). The rules exempt complete applications submitted before that date |
| September 12, 2023 | The Council adopts Ordinance 4419-23, effective October 5. It applies the new rules to “Any application … which has not received final approval prior to the effective date of this ordinance” |
| November 2023 | B9 and Concore each sue (Law Division dockets L-1365-23 and L-1385-23), arguing the retroactivity provision is arbitrary and that state law preempts it |
| January 2024 | The township answers and counterclaims for a declaration that the ordinance applies |
| December 6, 2024 | The trial court grants summary judgment to B9 and Concore |
| December 9, 2025 | Appeal argued before Judges Rose, DeAlmeida and Torregrossa-O’Connor |
| March 13, 2026 | Affirmed |
The question. New Jersey’s Time of Application Rule (N.J.S.A. 40:55D-10.5) says the development regulations in force when a complete application is filed are the ones that govern it. Health-and-safety measures are an exception.
The township’s argument. Louis N. Rainone argued for Franklin that the ordinance is a health-and-public-safety regulation exempt from the rule, and that NJDEP allows towns to adopt stricter rules than the state’s.
The ruling. The trial court had found the ordinance a zoning ordinance subject to the rule. The Appellate Division agreed: the ordinance’s primary focus is development, which falls under the Municipal Land Use Law, so the rule protects applications that were already complete. Neither court reached the preemption argument. The opinion is unpublished and does not bind other courts.
Jonathan I. Epstein argued for B9 and John J. DeLuca, Jr. for Concore.
What it means. The decision concerns applications that were already complete when the ordinance took effect. B9’s warehouse case is covered under Warehouses. Mr. Rainone told the Council on October 22, 2024 that there were “12–13 lawsuits challenging ordinances regarding stormwater, noise and the two zoning ordinances”; A-1461-24 is the stormwater piece. Whether the township asked the New Jersey Supreme Court to review the decision is not known.
The Lower Millstone watershed plan
The township’s state stormwater permit (the MS4 permit, issued in 2023) requires a Watershed Improvement Plan “to reduce flooding, reduce water pollution, meet the pollution reduction goals in Total Maximum Daily Loads,” as the shared-services agreement recites.
- March 24, 2026: the Council joined the Lower Millstone River Watershed Work Group by shared-services agreement with Montgomery Township, the lead agency (Res. 26-148, consent agenda, 8–0, Wright absent).
- Members: Franklin, Montgomery, South Brunswick, Manville, Princeton, Hopewell Township, Hopewell Borough and Rocky Hill.
- Cost: Franklin’s share is not to exceed $77,725, 30.56% of the total in the agreement’s cost table. Montgomery hired One Water Consulting, LLC (not to exceed $254,300) to write one regional plan; each member pays its pro rata share.
- Scope: Raritan River TMDL evaluation, watershed monitoring, a matrix of best management practices, sub-watershed assessments, improvement projects and a report, to “identify potential locations, projects and costs within the watershed to reduce water pollution and reduce flooding.”
- Term: to December 31, 2027, “which coincides with the expiration of the MS4 municipal permit.”
On November 10, 2025, then-Councilman Potosnak’s action notes read: “thank Council and LUC - stormwater evaluation - secure grant with Montgomery - watershed institute.” Whether that grant is part of the same effort is not stated.
Private stormwater systems
Between November 2025 and October 2026 the Council approved 21 Stormwater Detention Facility Maintenance Agreements, each binding a property owner to maintain its own system: drywells, infiltration basins, porous pavement, underground detention and treatment devices. All but one passed on consent agendas; Res. 26-392 (1-3 Executive Drive) was voted on separately, 9–0. Signers include Rutgers Preparatory School, the Millstone Valley Fire Department, the Foundation of the Wilf Campus, 1-3 Executive Drive and 500 Atrium Drive, as well as owners of lots such as 23 Sunflower Road and 64 Norma Avenue.
The township’s FAQ says each stormwater device needs an annual maintenance permit, with fees “from $250 to $750 for each stormwater management device.” The FAQ gives two deadlines on the same page: “The deadline for return will be March 30th” and, in the next answer, “January 1st is the deadline” for annual renewal. It does not explain the difference.
Money for drainage
- The Roads department asked for a $100,000 “Stormwater Infrastructure Program” in the 2026 capital requests (March 17, 2026 packet).
- Bond Ordinance 4504-26, adopted May 12, 2026 (6–0), includes “stormwater infrastructure upgrades … pipes, catch basins and drainage improvements” within its $4,650,000 roads and sidewalks line.
- The township’s state Municipal Aid application for JFK Boulevard Phase 1 (Res. 26-210) lists “drainage improvements.”
What residents have raised
As the minutes record:
- December 9, 2025: Beverly Lawson of Amwell Road, “opposed a potential water runoff fee, calling it a ‘money grab’.” The minutes say “Mayor Kramer addressed the stormwater issues that were raised.” No runoff-fee ordinance or study appears in the 2025–26 agendas.
- March 24, 2026: at the Catalpa Park presentation, a Catalpa Farm resident raised “flood considerations.” The park’s northern section has “a wet pond for stormwater management,” and the minutes record that “The design accounts for flood considerations.”
- September 8, 2026: Loretta Harper of Churchill Avenue, opposed the Habitat for Humanity project at 168 Churchill Avenue, “citing lot size, flooding, parking and traffic safety concerns.”
- October 13, 2026: Peter March of Bennington Parkway, “Reported unaddressed stormwater management issues at Bennington Parkway, including clogged pipes and debris. Requested acknowledgement of a July complaint, a site inspection, and a regular maintenance schedule.” The Manager “committed to speaking with the resident regarding the Bennington Parkway drainage issues on Thursday morning.”
What is not in the record
The Council record from October 2025 to October 2026 has no Blue Acres buyouts, no FEMA map revision for Franklin and no stormwater utility proposal. FEMA’s August 14, 2025 notice of revised preliminary flood maps in Somerset County does not list Franklin.
What is not known
- Whether the Bennington Parkway site visit took place, and whether those pipes are township-owned or private.
- When the watershed plan’s deliverables are due.
- Which projects the $100,000 Stormwater Infrastructure Program would fund.
- Whether the township sought Supreme Court review of A-1461-24.
What residents can do
- Raise it at a Council meeting. Drainage problems can be raised in Public Discussion at any regular Council meeting, as on Bennington Parkway.
- Contact the township. Stormwater permits for private systems are explained in the township’s FAQ.
- Read the ruling. The Appellate Division’s opinion is linked under Sources.