New Jersey Zoning Watch

In putting together your “keeping on top of the latests land use trends” reading list, include the following two articles written by Andrea Alexander of The Record. Both address some of the challenges and opportunities facing communities as a result of the “green” movement.
In an article from September, Ms. Alexander highlights a recently adopted ordinance in Wayne, New Jersey, that limits the development of wind turbines near residential neighborhoods, schools or day care centers. According to the article:

The Township Council unanimously adopted the measure after a heated debate Wednesday night: Are turbines unsightly intruders with potentially damaging health effects? Or should they be accepted as just part of the skyline of an energy-independent future?

“When you look out your back door, you don’t want to look at a nuclear power plant, you don’t want to look at a wind turbine,’’ Mayor Christopher Vergano said today. “We are protecting the values of residential properties by keeping them [at] a certain setback.’’

Wayne is not the first community to address the issue, however, and won’t be the last. Given the initial reactions of municipalities to regulating the siting of wind turbines (despite their benefits to the community), it appears that obtaining approvals for such facilities will be more like hearings on telecommunications towers and monopoles, than more esthetically “acceptable” projects.

The township isn’t the first in the state to adopt rules to keep wind turbines away from homes. Brick in Ocean County adopted an ordinance in April that allows turbines only in business and industrial zones. At least five towns in the state have adopted ordinances to set guidelines for the location of wind turbines. The regulations generally require setbacks to keep the renewable energy source away from neighbors.

Hillsborough in Somerset County allows residents, farmers and business owners to put up turbines on lots that are greater than 10 acres. Galloway Township in Atlantic County restricts turbines to one-acre residential lots, with a setback from the property line equal to the height of the structure.

Under Wayne’s ordinance, Mayor Christopher Vergano said, turbines could be permitted along sections of Routes 23 and 46 and in the industrial areas off the West Belt Parkway.

For the environmentalists’ perspective of the battle in Wayne and other communities over alternative energy technologies, see the press release entitled “It’s Not Easy Being Green,” at Environment New Jersey here.

Ms. Alexander also wrote an article entitled “Towns Start Reshaping The Landscape for Solar, Wind,” this week on the “green” movement and how municipalities are taking it into consideration in land use planning.

Planning experts say slowing global warming goes beyond putting solar panels on homes and wind turbines on industrial lots. It’s going to take a gradual — but decisive — shift in your way of life.

. . . .

A green community will position new homes near transit, parks and stores, or bring those necessities to existing neighborhoods.

Transportation is the largest contributor to greenhouse gases, and “the most important part about mixing land uses is: People tend to use their cars less, and that is what living green is all about,” said Debbie Alaimo Lawlor, chief of Sustainability and Economic Growth for the New Jersey Meadowlands Commission. The NJMC has land-use authority over parts of 14 communities in Bergen and Hudson counties.

Westwood accepted the connection years ago in zoning the heart of its downtown as a “special pedestrian environment.” The zoning bans new restaurants and sports clubs — destinations people drive to, then leave.

But it welcomes service businesses such as the camera shop, florist and dry cleaners so one walk downtown can fill several errands.

Green planning also was boosted there by another essential: a train station. Houses closest to the station are selling the fastest and holding their value in a down market.

While I’m not particularly a fan of labeling restaurants and fitness centers as “anti-green,” the article does make one re-think how “reducing our carbon footprint” interacts with zoning ordinances in older downtowns which are probably relics of the 1960s (both the downtowns and the zoning).

The article also includes discussion of how the state legislature, regional planning authorities like the Meadowlands Commission and individual municipalities are attempting to provide incentives for (or some might say, force) builders to encorporate green technologies or criteria into their projects, such as solar power or LEED standards.

For the full article, click here.

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Despite the substantial impediments to development in the Highlands imposed upon over half of the acreage in the region as a result of the Highlands Act, environmentalists are not satisfied. Several last minute amendments to the plan proposed by the environmental lobby on the eve of the Highland Council’s public hearing to vote on the Highlands master plan were rejected. As a result, environmental groups have been lobbying Governor Corzine to veto the Highlands master plan.

The latest argument being presented to defeat the current master plan is that the master plan adopted by the Highlands Council does not take into account the new affordable housing rules and legislation (A-500/S-1783), which was signed into law by the Governor on July 17 - the same date the Highlands master plan was voted on by the Council. As a result, environmentalists argue, the Governor must veto the plan so the Council will incorporate the changes to the Fair Housing Act into the plan.

The Star Ledger reports on the perceived incongruities between the plan and A-500 here.

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The Highlands Council, by a vote of 9-5, adopted the regional master plan for the 860,000 acre Highlands, which encompasses portions of Morris, Sussex, Bergen, Passaic, Warren, Somerset and Hunterdon counties. The plan, which is still subject to final approval or veto by the Governor within the next thirty days, places severe limits or outright restricts development on more than half of the 1,250 square miles of land that are within the Highlands boundaries. While the enabling legislation purports to be a watershed protection act, many critics charge that the boundaries for preservation or planning were arbitrarily drawn and that the law is more of an open space protection law than a plan to preserve drinking water for other regions of the state.

During the day-long proceedings on Thursday, many landowners complained that their properties were made worthless by the legislation and the master plan, with no monetary relief in sight from the state, despite provisions in the Act requiring compensation.

According to the Star Ledger:

The plan that won approval included an estimate that it will cost $1.3 billion over the next decade to preserve lands most in need of protection, even as the state’s open-space coffers begin to run dry.

The council also needs millions of dollars to fund a complex transfer-of-development-rights program — intended to funnel money from developers seeking approvals for high-density development elsewhere to Highlands landowners no longer able to develop their land.

Where the money for preservation will come from is an unanswered question, and the other two council members who voted against the plan, Kurt Alstede and Glen Vetrano, cited that issue.

Alstede said many of his friends lost equity because of the Highlands Act, and he termed the Legislature’s failure to supply a funding source for compensation “pitiful.”

“They are told the money will come someday,” he added. “I ask, how long must they wait?”

For the full Star Ledger article, click here.

For the Record’s view of the proceedings, click here.

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The Highlands Council is expected to approve the Highlands master plan today, which severely restricts development in over 80 percent of the 800,000 acres within the seven counties encompassing the Highlands region. There is substantial opposition to the plan from both ends of the spectrum, with environmentalists charging that the plan is too watered down while builders, farmers and property owners claim that the Highlands Act and the plan unduly limit their ability to develop their property and have destroyed their land values.

The Daily Record provides a comprehensive review of the plan here.

The Star Ledger outlines the issues in a question and answer format here.

Star Ledger columnist Paul Mulshine provides his take on the Highlands master plan here.

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Faced with substantial criticism from builders, environmentalists, municipal leaders and private property owners, the Highlands Council voted this week to postpone adoption of the 383-page master plan until July.  The Council has scheduled seven work meetings prior to its anticipated vote.

According to the Record, the council’s executive director, Eileen Swan, has stated that “her staff is crafting clearer requirements and a checklist for local governments.”  Municipalities will have 15 months to amend local master plans to match the regional plan, following final approval.

Swan provided the council with a list of aspects that must be clarified. They include:

* a priority list of parcels to be preserved.

* the “transfer of development rights” program that would allow a landholder to profit from protected property by “selling” development potential for use in areas designated for growth.

* cluster development on farmlands.

* water supply deficit areas.

* a regional build-out analysis. “This is a critical piece,” Swan said of the analysis, being prepared by consultants. It is designed to show where additional development could take place and where existing development may be straining local water supplies and sewage-treatment capacity. Swan said that report is expected to be finished by June for council discussion.

A contentious issue for the council is creation of a priority list of private lands to be sent to the state Green Acres and farmland preservation programs to consider for buyouts.

For the full article in the Record, click here.

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The Daily Journal is reporting that a Cumberland County trial court invalidated Vineland’s revised master plan and subsequent zoning changes as meetings involving an ad-hoc committee (which included four planning board members) appointed to provide suggestions on updating the master plan failed to comply with the Open Public Meetings Act. 

The court found that the failure to provide notice of the committee’s 16 work meetings between April 2005 and September 2006 was fatal to the process.

From the Daily Journal article:

Lakewood-based developer Rudy’s Airport LLC filed a lawsuit in late 2006 seeking to invalidate the master plan. . . . Rudy’s Airport LLC owns a 180-acre former landing strip off Weymouth Road near Willow Grove Lake. The company had proposed building about 360 age-restricted homes on the property. Current zoning rules limit the number of homes to one per 2.5 acres.

The developer alleged the city violated statewide land-use law by allowing the committee to create revisions to the master plan. Rudy’s Airport LLC also alleged the city violated the Open Public Meetings Act when it did not allow the public to attend its meetings. “The idea of the Open Public Meetings Act is, not only are you allowed to make public comments, but you’re allowed to observe the process,” argued the developer’s attorney, Kevin D. Sheehan of Parker McCay in Marlton. “If you can’t observe the process, you can’t be a meaningful participant when it’s time to make public comment.”

Vineland Planning Board Solicitor Frank DiDomenico argued public notice wasn’t required because the committee merely advised the Planning Board and didn’t make any decisions regarding the master plan.

The City has not yet determined whether it will seek a stay of the trial judge’s ruling and appeal or attempt to salvage the master plan through additional public hearings.

While I have not had the opportunity to review the judge’s ruling as it was an oral opinion from the bench, it appears that the judge broadly construed the OPMA in finding that an ad-hoc committee which contained less than a majority of planning board members was in violation of the public meeting notice requirements. 

The ruling, as reported, appears to be a “win” for property owners, developers, citizen activists and any other interested party who claims that key decisions on land use policy have been predetermined before the formal master plan public hearing process has begun.  From the municipal government perspective, it severely constrains a public entity from a process standpoint in that it appears to require that even advisory committees, with no power to take formal action or adopt policy, provide public notice of all meetings.   Here, while Vineland held seven public hearings prior to the master plan adoption, this was not enough to cure the apparent OPMA violation.

However, this may only be the first ruling in a long legal battle.  Before definitive conclusions can be drawn about the impact of this decision, the court’s opinion and the underlying legal rationale for the decision must be carefully examined.  Regardless of the basis for the decision, since this is an unreported decision of a trial court, board members, elected officials, property owners and activists need to put the ruling into context as it has no binding effect on other communities at this point.

For the full Daily Journal article, click here.

For the Press of Atlantic City article on this case, click here.

Editor’s Note:  It appears that the City will appeal the trial judge’s ruling.  See the March 25 Press of Atlantic City article here.

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