HER & G R E TN E R, P. C. PLAZA ONE 1 STATE ROUTE 12, SUITE 201 FLEMINGTON, NJ FAX

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1 GULlET D. HIRSCH N5fJ I ARC I HER & G R E TN E R, P. C. I ATTORNEYS AT LAW PLAZA ONE 1 STATE ROUTE 12, SUITE 201 FLEMINGTON, NJ FAX Address: ghirsch@archerlaw.com Direct Dial: (908) Direct Fax: (908) February 26, 2008 /(D)IE 'r~ c'...~, G1 3;1 8yl-~q~ - W :EB I VIA OVERNIGHT MAIL Chairman Weingart and New Jersey Highlands Council Members 100 North Road Chester, NJ RE: Meer Bloomingdale Estates Property, Block 59, Lot 1.04; Block 60, Lots 9.02, 16.01, 16.02,21.02,21.03,45,46,47,48.02,60.01, and in the Borough of Bloomingdale ("Meer Property") Dear Chairn1anWeingart & Council Members: Please accept this letter on behalf of Meer Bloomingdale Estates (property owner) and Bloomingdale Joint Venture and D.R. Horton, Inc.-New Jersey (developerlbuilders) as a formal comment letter on the Final Draft Highlands Regional Master Plan ("RMP") as released November 17,2007. We incorporate by reference, and again enclose, the April 26, 2007 Vogel, Chait, Collins and Schneider letter. Those comments concerning the 2006 draft RMP apply equally to the November 17,2007 RMP final draft. Another reason we are again submitting our prior comments is that the Council never responded to our comments... either via correspondence or more importantly through substantive changes to the RMP. We sincerely hope that the constitutional significance of affordable housing in the Highlands region, will cause the Council to seriously consider and respond to our comments in a substantive manner. The Meer Property and Proposed Affordable Housin2 Development 1. Status of Approvals Over the course of the past year, the Meer Property has moved forward in the affordable housing approval process. On July 17, 2007, Bloomingdale Borough adopted Ordinance designating the site as the sole property in the new affordable housing zone. (See enclosed Ordinance ). Adoption of this Ordinance is the last step in the grant of a builder's HADDONFIELD OFFICE One Centennial Square Haddonfield, NJ P F PRINCETON OFFICE 700 Alexander Park Suite102 Princeton, NJ P F PHILADELPHIA OFFICE One South Broad Street Suite1600 Philadelphia. PA P F WILMINGTON OFFICE 300 Delaware A venue Suite 1370 Wilmington, DE P F NEW YORK OFFICE 2 Penn Plaza Suite 1500 New York. NY P F

2 Chainnan Weingart and New Jersey Highlands Council Members February 26,2008 Page 2 remedy pursuant to Judge Humphries' February 28,2007 Order. A preliminary site plan application was submitted to the Bloomingdale Borough Planning Board and the decision is expected to be rendered no later than 95 days from submission. (See Section 92-6lA of Ordinance which requires a decision within the deadlines set forth in the Municipal Land Use Law). The development proposed on the Meer Property - - -pursuant to Ordinance and the Builder's Remedy Order consists of360 dwelling units, including a 20% set-aside of72 units for low and moderate income families. Development will be restricted to acres of the 180 acre tract, thus confonning with the cluster objective stated in the RMP. (Objective 7G1.b at p.246). Additionally, as a result of this cluster approach to development, only 11% of the forested area and 9% of the steep slopes onsite will be disturbed as part of the development. All significant environmental constraints, including wetlands, C-l waters and vernal pools will be preserved along with buffers confonning with existing state laws and regulations. 2. Critical Habitat Desi2oatioo We note that the Meer tract is located within an area designated under the RMP as critical habitat. The enclosed February 1,2008 report of Trident Environmental Consultants explains in detail why this designation is incorrect. The species evaluated include the barred owl, redshoulder hawk, northern goshawk, bobcat, timber rattlesnake and wood turtle. The Trident report concludes, based upon extensive site surveys, that the six target species are not present on the site and that various man-made and natural factors cause the site to not provide suitable habitat for the target species. The authors of the Trident report conclude as follows: "The development area has been evaluated for the presence of critical habitat as defined in the Highlands Regional Master Plan Final Draft, November Habitat for barred owl, northern goshawk, red-shouldered hawk, timber rattlesnake, wood turtle and bobcat was the focus of this assessment. There was no habitat critical to the survival of any of these species found throughout the thirty-two (32) acre development parcel. The area proposed for development is located in the northeast portion of the site and is within close proximity to development including roadways, residences and commercial buildings. There were no nests, tracks, scat or any other evidence to indicate that the development area is being utilized by any of the aforementioned species. In addition to the habitat assessment, an intensive threatened/endangered species survey was perfonned throughout

3 Chail111anWeingart and New Jersey Highlands Council Members February 26,2008 Page 3 the entire site by Trident Environmental Consultants in This survey did not produce evidence of any target species; however, wood turtle foraging habitat was noted throughout the vernal pools, which is again located well outside of the thirty-two (32) acres that are proposed to be disturbed. The proposed development does not infringe upon any wetlands or transition areas (buffers) which eliminates any irreversible, adverse impacts to wood turtle. Wood turtle is the only species that is listed as having a recorded occurrence on or within a Y4mile of the project site according to the Natural Heritage Program and the Landscape Project V.2 Data layer. Although this is the only species listed, our office also evaluated the site for additional species based on the habitat present on the site. There was no evidence of habitation noted during the 2005 intensive presence/absence survey that was conducted throughout the entire site or the 2008 habitat assessment throughout the development area. In addition to any evidence supporting the presence of any threatened/endangered species, there are no significant natural areas or certified vernal pools present. Our office identified vernal pools while conducting the 2005 presence/absence survey and these areas will be avoided and there will be no infringement into wetlands or transition areas." (See p. 3 of enclosed Trident). Based on this infol111ation,it is imperative that the Highlands Council remove the Meer Property from the critical habitat designation. We note that policy IF5e at page 176 of the RMP authorizes some as-yet indefinite process for modifying a critical wildlife habitat designation. Given the fact that the Meer Property is an affordable housing site located in a State Plandesignated town center which has been the subject of extensive litigation and planning board review culminating in a builder's remedy order, it would be unconscionable for the Highlands Council to require the developer of this site to go through an extensive review process to change its clearly incorrect designation as critical habitat. Furthel111ore,any additional review and processing of this affordable housing site would violate the Mt. Laurel doctrine which prohibits cost-generative excessive restrictions and exactions. Southern Burlington County N.A.A.C.P. v Mount Laurel Township, 92 N.J. 158, (1983). We respectfully submit that the Highlands Council should transmit the enclosed extra copy of the Trident report to the D.E.P. for a 30 day review. If D.E.P. agrees with Trident, The Highlands Council must redesignate the Meer Property as part of the Existing Community Overlay Zone. This designation is justified given the fact that the Meer Property is essentially an island in a sea of high density development, located between two Existing Community Overlay Zone areas

4 Chairman Weingart and New Jersey Highlands Council Members February 26, 2008 Page 4 and in the heart of the Bloomingdale Town Center as designated by the State Planning Commission. General Comments on Failure of RMP to Respond to Affordable Housin2 and Future Development Needs Where will families find affordable housing within the Highlands Region? Is any part of the Planning Area within the Highlands Region recommended for new housing and employment growth? These related questions are not answered in the Highlands RMP. The Highlands Council does not have the option to defer answering these questions. Affordable Housin2 The Highlands Water Protection and Planning Act ("Highlands Act") required the Council to address affordable housing needs as part of its smart growth element. The Legislature also made it clear that the plans approved by the Council on Affordable Housing ("COAH") via substantive certification or a court-issued judgment of repose prior to August 10, 2004 were not to be affected by the Highlands Act. Even if the Highlands Act had not clearly required the RMP to respond to regional housing needs, the Highlands Council would have this obligation under general law. As the New Jersey Supreme Court decreed in Mt. Laurel II, the obligation to provide affordable housing is a State obligation: "The State controls the use ofland, all of the land. In exercising that control it can favor rich over poor. It cannot legislatively set aside dilapidated housing in urban ghettos for the poor and decent housing elsewhere for everyone else. The government that controls this land represents everyone. While the State may not have the ability to eliminate poverty, it cannot use that condition as the basis for imposing further disadvantages. And the same applies to the municipality, to which this control of the land has been constitutionally delegated." Mt. Laurel II, 92 N.J. at 209. When the State delegates its authority to control land use to a regional agency, it is clear that that agency concurrently receives the obligation to assure the provision of affordable housing. This obligation has been recognized by the New Jersey Supreme Court with respect to the State Coastal Area in: In the Matter of Egg Harbor Associates, 94 N.J. 358, 367 (1983) ("The message is clear. State and municipal bodies that have the power to control land use for the health, safety, and general welfare of the public may use that power to create housing opportunities for the poor. It would make no sense at all to hold that the general welfare encompasses the provision of low and moderate income housing at the behest of municipalities,

ChailTIlan Weingart and New Jersey Highlands Council Members February 26,2008 Page 5 but not of state agencies."); by the State Attorney General in foltilaladvice regarding the Pinelands Area. (.

5 ChailTIlan Weingart and New Jersey Highlands Council Members February 26,2008 Page 5 but not of state agencies."); by the State Attorney General in foltilaladvice regarding the Pinelands Area. (... therefore, in light of the Commission's broad land use control authority and authority broader than that ofd.e.p. under the Coastal Area Facilities Review Act, and in light of the Egg Harbor decision, there is no longer any question that the Commission shares in the obligation of government in New Jersey to foster housing opportunities for all income groups."); and by the Appellate Division with respect to the Hackensack Meadowlands in: In the Matter of the Adoption ofn.j.a.c. 19:3 etc., 393 N.J. Super 173,182 (App. Div. 2007) ("Thus, although the Mt. Laurel cases address the municipal obligations under the Constitution, the principles enunciated were filtillybased on a duty owed to the people by the State. We perceive no sound basis for concluding that when, as here, the State entrust one of its agencies with complete control over planning and zoning of a vast amount of land, approximately 21,000 acres, the Agency is free to exercise its authority without taking affiltilative steps to ensure adequate affordable housing." In the Matter of the Adoption ofn.j.a.c. 19:3 etc, 393 N.J. Super 173,182 (App. Div. 2007).). Thus, the delegation of authority in the Highlands Act requires this Council to plan for needed affordable housing. The final draft RMP does not contain a plan even a conceptual one for providing for the 20,699 low and moderate income units needed in the Highlands Region before the year The RMP includes a series of general policy statements and goals such as a policy to eventually develop meaningful opportunities to provide affordable housing (Policy 6A3, page 151); a recognition of the need for affordable housing to meet the needs of the Highland Region (Goal 60, page 159); the need for a region-wide comprehensive approach to provide for housing needs of all income groups (Policy 601, page 159); the need to develop an interagency partnership with C.O.A.H. (Objective 601b, page 159); and other general statements about the need to promote affordable housing (Policy , page 160). Given the clear Constitutional obligation of the Highlands Council to assess and plan for affordable housing, mere general statements are not enough. The following action must be taken: 1. The Land Use Capability Maps must be revised to show the location of all affordable housing developments approved by the courts or by COAH. These sites should be placed in the Existing Community Overlay Zone or in a new affordable housing overlay zone; 2. Sufficient vacant land must be designated to produce the 20,679 low and moderate income homes needed in the Highlands region; and 3. Reasonable density and design standards must be proposed to assure that affordable housing can be constructed at reasonable cost. This clearly means that alternatives must be provided to the standard development of single-family homes on 26.1 acre lots in the I See enclosed letter report of Arthur Bernard

6 Chairman Weingart and New Jersey Highlands Council Members February 26, 2008 Page 6 Protection Area, clustered 1.9 acre lots in the Conservation Area and single-family homes on 9.4 acre lots in the Existing Community Zone. Future Development Areas Pursuant to the Highlands Act, the Regional Master Plan was required to identify undeveloped areas in the Planning Area which were not subject to significant constraints and which could be developed. N.J.S.A. 13:20-1.a.(6)(c). Additionally, the RMP was to include model minimum standards for center-based development outside ofthe Preservation Area. N.J.S.A. 13:20-1a.(6)(f). The RMP's response to the Legislature's areas are appropriate for future development: direction suggests that only existing developed "The focus is on meeting the region's growth needs through maximizing the efficient use of previously developed lands by guiding growth towards those areas that have existing communities and available infrastructure, and are less constrained by environmental factors." (p. 67). Under the heading "Future Land Use", the goal of redeveloping existing developed land is repeated. (p. 69). If the RMP intends to allow some reasonable amount of future development on vacant land located adjacent to existing development, you would expect appropriate vacant land to be designated in some manner in the RMP. Instead, the RMP has designated the Existing Community Zone to include only 2,793 acres which are not presently developed, in agriculture, or in forest, water or wetlands areas. These 2,793 acres constitute less than 2% of the entire Existing Community Zone and only.3% of the entire Highlands Region. (See charts at page 82 of the RMP). This begs the question: where will future housing and non-residential growth go if so little land is considered acceptable? Although the plan lists the 20 designated centers within the Highland Region, it does so to allow the Council and municipalities to reassess these designated centers, rather than to incorporate them into the RMP for the Highlands Area. Reassessment is inappropriate given the extensive planning process which generated the designation of these centers. It also does not accurately describe the status of "expired" centers, which can be extended to 2011 by pursuit of plan endorsement and receipt of a Certificate of Eligibility before June, The only standard suggested for center-based development is the discretionary density of 3 units per acre. This approach does not conform with the requirement of the Highland Act that the RMP include:

7 Chainnan Weingart and New Jersey Highlands Council Members February 26,2008 Page 7 "A smart growth component that includes an assessment, based upon the resource assessment prepared pursuant to paragraph (1) of subsection a. of this section, of opportunities for appropriate development, redevelopment, and economic growth, and a transfer of development rights program which shall include consideration of public investment priorities, infrastructure investments, economic development, revitalization, housing, transportation, energy resources, waste management, recycling, brownfields, and design such as mixed-use, compact design, and transit villages..." Conclusion It has been three and one half years since the Highlands Act was signed into law. The Highlands Regional Master Plan is now almost two years overdue. The first draft of the RMP released in November, 2006 brought a significant public response at hearings and in comment letters. The owners and developers of the Meer Property in Bloomingdale Borough submitted a comprehensive analysis which has never been responded to. Since the Meer Property is a designated affordable housing site which has received a builder's remedy from the Court and is on the verge of obtaining Planning Board approval, this development cannot be ignored by the Highlands Council. We respectfully submit that the Highlands Council should respond affinnatively to the enclosed materials by taking the following action: 1. Removing the Meer Property from the Critical Habitat Area; 2. Changing the designation of the Meer Property from the Protection Overlay Zone to the Existing Community Overlay Zone; 3, Adding a significant discussion to the RMP concerning how affordable housing will be provided within the regulatory scheme envisioned by the RMP. GDH/cas Enclosure cc: vl Parties on attached Service List (w/encl.) R esp ectfully SU ed,.9ih '?, I,'.. /... / :A~. 27.! ~/: T~~H I

8 MEER BLOOMINGDALE ESTATES SERVICE LIST Richard Brigliadoro, Esq. Weiner, Lesniak 629 Parsippany Road Box 438 Parsippany, NJ Phone: Fax: Greg Ploussas Chester, Ploussas, Lisowsky Partnership, LLP Metro Park South 100 Matawan Road, Suite 100 P.O. Box 943 Matawan, NJ Phone: Fax: Bryon DuBois, Project Manager Trident Environmental Consultants 1856 Route 9 Toms River, NJ Phone: (732) Fax: (732) Joseph Miller 4266 Eisenhower Drive Bethlehem, PA Phone: (cell) Fax: imiller@nhrres.com;ioseph.miller@rcn.com Art Bernard THP, Inc. 77 North Union Street Lambertville, NJ Phone: (609) Fax: (609) yukygolfer@ao1.com

9 Hal Sterling, Esq. General Counsel of Fletcher Thompson Architecture Engineering In California until May 1 Hal Sterling, Esq. 840 Inverness Drive Rancho Mirage, CA Phone: Fax: ** hsterling@ftae.com**asper2/6/07.usehalelaine@aol.com Harvey Meer 241 Truman Drive Cresskill, NJ Phone: Fax: ehmeer@ao1.com Frank Linnus, Esq. Professional Center at Somerset 21 Clyde Road, Suite 101 Somerset, NJ Phone: Fax: fplesq@patmedia.net vl

10 **There are additional documents regarding this comment and they can be found in the paper file in the Public Comments filing cabinet in the hallway. ** Iforrest

By F. Clifford Gibbons, Esq. 1

By F. Clifford Gibbons, Esq. 1 NEW JERSEY SUPREME COURT CONFIRMS MLUL DEFINITION OF APPLICATION FOR DEVELOPMENT AND SUSTAINS ROLE OF MUNICIPAL ZONING OFFICIALS IN EVALUATING SUFFICIENCY OF DEVELOPMENT APPLICATIONS By F. Clifford Gibbons,