Memorandum. To: Upper Freehold Planning Board. From: Charles P (Chuck) Newcomb, PP/AICP. Date: April 21, Re: Land Use Element Evaluation

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1 Memorandum To: Upper Freehold Planning Board From: Charles P (Chuck) Newcomb, PP/AICP Date: April 21, 2008 Re: Land Use Element Evaluation As requested Banisch Associates, Inc. (BIA) has reviewed the Land Use Element adopted by the Planning Board on December 13, Besides reviewing the document as adopted we used the Periodic Reexamination Report adopted by the Planning Board on December 13, 2007, the Land Use Volume Chapter XXXV, Land Use Regulations and of course the comments of Planning Board members as presented on Thursday, March 13, We also have reviewed background documents. Specifically, we have reviewed the 2007 Addendum to 1988 Natural Resources Inventory for Upper Freehold Township, New Jersey and Zoning Build-Out Analysis, Upper Freehold Township, New Jersey. We also have reviewed the Master Plans of adjacent municipalities and Land Development Ordinances of various municipalities within New Jersey as noted within the report. We would first like to address a major concern that some of the Board members may have regarding the Land Use Plan Element. Generally, the Plan is constructed accurately from a planning perceptive and any recommendations we make that are advanced by the Board could simply be an amendment to the Plan as it was officially adopted by the Planning Board last December. Secondly we believe a couple of our recommendations may require further work on the part of the Board if accepted by the Board. The recommendations we provided simply give direction for the Board to follow. Finally, as you read you will find two topics that were not thoroughly addressed in the Land Use Plan which we believe are imperative to address if many of the concepts in the Plan are going to be able to work. Foundations for Vision, Goals and Objectives The basis of moving forward in the development for a new Land Use Plan involves thoroughly examining the previously adopted Land Use Element and the previously adopted Periodic Reexamination Report. The Land Use Plan properly examines the recommendations of the Land Use Plan Element and the 2001 Periodic Reexamination Report. It validated the goals and objectives and reviewed 1/16

2 the recommendations. It also identified factors of change from those documents It identified the increased pressure for residential development within the State and the region. Recognition was made of the pending changes to the Water Quality Management Planning Rules and the State Development and Redevelopment Plan. It also acknowledged the Township s Farmland Preservation Plan and Open Space and Recreation Plan. Vision The Vision within the Land Use Plan is very well constructed in moving forward from the MLUL required goals and objectives to a course of action of specific steps to follow to guarantee the vision. It also sets forward a sound underpinning for a rural preservation strategy in approaching land use matters within the Township. It also acknowledges the Zoning Build-Out Analysis to illustrate the potential impact of status quo within the Township as well as demonstrating the environmental capacity of the Township through the report, Development Capacity Analysis for Upper Freehold Township which led to action by the Township Committee in amending the Land Use Regulations Ordinance. Basis for a New Strategy and the New Strategy Noncontiguous Clustering The enabling legislation for the use of noncontiguous parcels is located in N.J.S.A c. It states that zoning ordinance can, "Provide districts for planned developments;..the zoning ordinance shall establish standards governing the type and density, or intensity of land use, in a planned development. Said standards shall take into account that the density or intensity of land use, otherwise allowable may not be appropriate for a planned development. The standards may vary the type and density, or intensity of land use, otherwise applicable to the land within a planned development in consideration of the amount, location and proposed use of open space; the location and physical characteristics of the site of the proposed planned development; and the location, design and type of dwelling units and other uses. Such standards may provide for the clustering of development between noncontiguous parcels and may, in order to encourage the flexibility of density, intensity of land uses, design and type, authorize a deviation in various clusters from the density, or intensity of use, established for an entire planned development. The standards and criteria by which the design, bulk and location of buildings are to be evaluated shall be set forth in the zoning ordinance and all standards and criteria for any feature of a planned development shall be set forth in such ordinance with sufficient certainty to provide reasonable criteria by which specific proposals for planned development can be evaluated." As you will note it is specifically in the provision which calls for Planned Unit Developments. A search of Ordinance.com, a web based subscription land use information system for California, Connecticut, Massachusetts, New Jersey, Rhode Island, Washington State, the metropolitan areas of Chicago, New York, Toronto and Washington, DC, identified application of noncontiguous residential clustering in Florence Township, Burlington County and Manalapan Township, Monmouth 2/16

3 County. The search of "transfer of development potential" identified its application in Chesterfield and Lumberton Townships, Burlington County and in one of our client municipalities, Hopewell Township, Mercer County. In the Florence case, noncontiguous residential cluster development of senior housing utilizing land in its AGR Agricultural District is permitted as a means of preserving farmland or providing for public uses such as recreation, open space or other appropriate public use. In the Florence application all or a portion of the density transfer of residential development permitted on a separate, noncontiguous site in the AGR Agricultural District is owned or controlled by the developer of the senior housing project. In other words the applicant would not only have control of the receiving site, but also the sending site. In the Manalapan case the residential cluster of single-family dwellings may be located on contiguous or on noncontiguous land in its RE Zone District, with the dwelling units located so that higher densities result in one area or in part of one area of the land in the RE Zone District, thereby enabling the preservation of common or public open space on the remaining area of land in the RE Zone District. The dwelling units and the open space of an RE cluster must be located in no other zone district. In Manalapan s case it is viewed as one of its cluster options only in its RE zone. The Chesterfield case is a voluntary transfer program where it is identified as an option within the sending districts which can only send its credits to one designated receiving area. It also is devised under the enabling statute within the municipal land use law. In the Lumberton case the development transfer is voluntary with the transfer coming from a specific sending area to receiving areas which are specific zones. These zones allow for an increase permitted density. In Hopewell Township Banisch Associates, Inc. (BAI) devised several different development options for the Mountain Resource Conservation (MRC) and Valley Resource Conservation (VRC) districts. BAI developed four (4) development options beyond conventional subdivisions of 14 acres and 6 acres respectively. They were: a. Open lands subdivisions with the intention to promote the retention of large contiguous wooded tracts and large farm tracts. b. Cluster subdivisions with the intention to promote the retention of open space and recreation areas. c. Lot-averaging with the intention of protecting natural resources and d. Noncontiguous Cluster Development with the intention of accommodating growth in identified hamlets In devising the transfer system the purpose of this technique was to provide a mechanism for the transfer of development potential from properties in the MRC and VRC Districts to municipally designated hamlets in the VRC District. 3/16

4 In reviewing the proposed recommendation in the Land Use Plan Element the positive aspect about the proposal is that the land use policy objective is unassailable and the implementing steps are correct in following David Kinsey s methodology, but there are several shortcomings. The transfer programs that have seen the greatest success are those that provide significant economic incentives. They are those that have provided available infrastructure in terms of sewer, water and transportation. It is the reason why the Pinelands PDC program has had the greatest success of any development transfer program in the State. The Pinelands Commission working with municipalities such as Galloway, Egg Harbor and Hamilton Townships in Atlantic County made sure not only the densities were in place to encourage transfers but also that the infrastructure was in position ready to create the development. This is also true in the cases of Chesterfield and Lumberton. For example, Chesterfield has been politically successful in leveraging the State to provide wastewater treatment and other State assistance from DCA to lay out its circulation system within its receiving area. The second issue is location. To quote a member of the Hunterdon County Land Use Tool Kit committee Mike Sullivan, PP/AICP of Clarke, Caton and Hintz "Like TDR, noncontiguous clustering should be based on comprehensive local planning. A community should identify in advance the areas it wants preserved (sending areas) and areas appropriate for higher density development (receiving areas). Otherwise, the community can end up with uncoordinated growth patterns. Similarly, the higher density receiving areas need to be carefully planned and designed by the community to ensure compatibility with the character and vision of the municipality." This is the case BAI experienced in Hopewell. It was critical to create the pattern of hamlet locations that reinforced the land use objectives and policies of the Master Plan and assisted in implementing the Land Use scheme within the Master Plan and protected natural resources. More importantly though two recent Court decisions have significantly and we believe would jeopardize the way that the Land Use Plan addresses "non contiguous clustering". Courtney Mercer, the President of the New Jersey Chapter of the American Planning Association (NJAPA) and former Director of Planning at the New Jersey Office of Smart Growth filed the following article on the two Court cases in the NJAPA monthly newsletter (March). Builders League of South Jersey, Inc. vs. Township of Franklin et als Docket No. A T5 The 2004 Franklin Township (Gloucester) Master Plan called for the conservation of land and channeling of growth through the use of noncontiguous planned residential development that would allow "[d]evelopment rights within the sending area be transferred into the Receiving Area" (2004 Master Plan, Franklin Township, Gloucester County). Not so cleverly as it turns 4/16

5 out, the Master Plan went on to say, "that this use of noncontiguous planned residential clusters is not intended to be interpreted under the recently enacted legislation that permits the statewide Transfer of Development Rights." In September 2004, the Township amended its zoning code and map to put all land in the R-A Residential District into either a Sending Area or a Receiving Area (Ordinance No ). The ordinance did allow for conventional subdivisions and contiguous clusters in both the sending and receiving areas; however, allowed for non-contiguous planned residential development to occur only in the receiving area. In addition, it allowed non-contiguous lands to be combined to create a conforming lot. In October 2004, the Builders League of South Jersey filed suit with the Superior Court of New Jersey, Gloucester County Law Division, claiming among other things, that Franklin s ordinance "established a TDR program in a manner not authorized by the MLUL" (Docket No. GLO L PW). The Township contended that the ordinance was not TDR because it was voluntary to transfer rights to the receiving area. Judge Bowen found for the Plaintiff in September 2005, and invalidated the ordinance "insofar as it is non-compliant with N.J.S.A. 40:55D-137 et seq". The Township appealed the decision to the Superior Court of New Jersey Appellate Division (Docket No. A T5). In July 2007, the Appellate Division affirmed the lower court decision and provided detailed reasoning for the same. The Court determined that the Township s ordinance exceeded the authority granted by the MLUL for non-contiguous PUD, because it was not limited to planned developments and that it did not require that the properties be developed as a "single entity" or be in "common ownership" the hallmarks of a PUD. Moreover, the Court determined that several aspects of the ordinance made it reminiscent of TDR; including, "the establishment of sending and receiving areas preliminary studies of topography and critical habitat, restrictions on future development, density bonuses and municipal authority to enforce the development restrictions". Thus, the court determined that the Township was seeking to implement a transfer of development rights program. As such, the ordinance was invalid because it did not meet the requirements of the State TDR Act. Flynn Tucker, L.L.C., et al vs. Township of Springfield et al Docket No. L (Consolidated) The background of the adoption of the three Springfield Ordinances in question is rather convoluted, and accordingly, the Court invalidated them on the basis of procedure. Despite Judge Sweeney s ability to end his decision with the procedural invalidation, he opted to "rule upon the procedural challenges lest the defendants assume that the ordinances are substantially valid and can be readopted in their same form". For the purposes of this article, the procedural issues are not relevant, and only Judge Sweeney s opinion as it relates to TDR will be discussed. In March 2006, Springfield Township (Burlington) adopted three ordinances that allowed for a transfer of density from sending 5/16

6 zones to receiving zones at three-acre zoning. If property-owners opted not to participate in the density transfer, they were subject to ten-acre zoning. (Ordinances , and ) The Township contended that they adopted these ordinances under the "non-contiguous density transfer" provisions of the MLUL (N.J.S.A D-65(c)). Judge Sweeney, however, emphasized that the MLUL does not contain such a term, and that the only allowance for "clustering between noncontiguous parcels" was through planned unit development. Judge Sweeney ultimately concluded that the Township had created a "hybrid form" of TDR. First, the ordinance established districts where development rights could be transferred to and from, effectively creating TDR sending and receiving zones. Moreover, the ordinance included terms such as "development potential", "development transfer" and "development potential transfer", which by definition, are all associated with the TDR provisions of the MLUL. The ordinance also provided for a preservation mechanism, another concept associated with TDR. Judge Sweeney also took issue with the fact that the Township ordinance openly admitted that the bonus densities might not be attainable if some parties in the sending or receiving zone opted not to participate. He said that this was evidence of "a TDR plan without the assurances necessary to render it a TDR plan in compliance with the MLUL", indirectly referring to the provisions for a market analysis in both the Burlington and State TDR enabling legislation. Due to the over-reaching yet unsupported nature of the Springfield ordinances, Judge Sweeney deemed them invalid insofar as they did not meet the statutory requirements of the TDR provisions of the MLUL. Conclusion In both cases, the Courts determined that the municipalities exceeded the authority of the non-contiguous cluster provisions of the MLUL. The Courts were vehement about the need for any non-contiguous clustering to occur pursuant to PUD. Any deviation from this provision would render the scheme a TDR. In the Franklin case, the Court was also keen to point out that the development was to be treated as a "single entity" or be in "common ownership". In both cases, the municipalities admitted that they had passed their noncontiguous ordinances because they did not have the resources or political will to pursue TDR. The Courts took exception to this, and pointed out the legislature s desire to provide safeguards and assurances for all parties through the TDR provisions of the MLUL. The Appellate Division put it best in the Franklin decision, "[s]imply stated, municipalities are not free to pick and choose the elements of the TDR program that it likes and disregard the provisions that it finds burdensome." These Court decisions do not disqualify one s ability to pursue non-contiguous cluster via the planned development provisions of the MLUL. Instead, they put municipalities, planners and land use attorneys on notice that the courts are using a strict interpretation of those provisions. Non-contiguous cluster, when implemented appropriately, is a good first step toward balanced growth. If your non-contiguous cluster ordinance walks, talks or quacks like TDR, however, it will be interpreted as TDR. 6/16

7 As presented in the Land Use Element "Noncontiguous Clustering" could easily be invalidated and we would recommend not following it as it is presently structured. The Reduction of Base Zoning The comment period was extended on NJDEP s "Water Quality Management Planning Rules" to July 27, Eventually the rule package including the change in the nitrate planning standard in ground water of 2.0 mg/l will be adopted. Considering this fact changing the base density for the AR from 0.33 to 0.17 and RA-5 from 0.20 to 0.10 is a viable recommendation as long other development options are made available. The Land Use Element is accurate in that the 50% reduction in recommended density comports with the findings of the nitrate dilution study with the control of 2.0 mg/l. This was also supported by an analysis conducted for the Board. An alternative to changing the present density or an option to protect natural resources could be creating a "Net density" as opposed to the present manner of gross density. After the Supreme Court decision in Rumson and Atlantic Highlands BIA developed a method of calculating density by extracting developable land. In Washington Township (Morris County), Bedminster Township (Somerset County), Howell Township (Monmouth County) and Chatham Township (Morris County) we developed these methods. In each municipality the natural resource inputs are a little different. In Howell they are mainly water related- wetlands, wetlands transition area and Special Water Resources Buffer (C-1 streams). In Bedminster and Washington beyond the water related factors limitations on steep slopes are included. The following is language that describes how Buildable Tract Area Calculations would be made from the Bedminster ordinance. "Buildable Tract Area Calculations. This Section is intended to be used to compute the total area of a tract that is suitable for development after subtracting identified resource protection areas. It is required to establish the maximum permitted density of residential development on the tract and will assist the Board in guiding, to the greatest extent practicable, all development activities to suitable area(s) of the tract. A. Applicability. The calculations required in paragraph B. below shall be submitted as part of any conceptual plan for informal review, or any minor or major subdivision application. B. Buildable tract area. The Buildable Tract Area Calculation Form shall be prepared by the applicant and submitted to the Board, along with a map of the entire tract illustrating natural resource features including flood plains, wetlands, NJDEP-required wetlands transition areas, stream channels, stream corridors, areas of slopes greater than 15% but less than 25% and areas of slopes 25% and greater. 7/16

8 BUILDABLE TRACT AREA CALCULATION FORM Column A Column B Column C Acres Protection ratio Acres 1. Gross Tract Area 2. Area of road and transmission rights-of-way 3. Area of restrictive covenants and easements 4. Adjusted Gross Tract Area (Line 1 less Lines 2 and 3) 5. Resource Protection Areas: (see Notes a and b) 6. Area of flood plains, wetlands, NJDEPrequired wetlands transition areas, streams and stream corridors 1 7. Area of slopes 25% and greater 1 8. Area of slopes greater than 15% but less than 25% Area of mature woodlands n.a. 10. Area of Class I agricultural soils n.a. 11. Area of Class II agricultural soils n.a. 12. Area of Class III agricultural soils n.a. 8/16

9 13. Area of other woodlands n.a. 14. Total Deductible Resource Protection Area (sum of Lines 6 through 8) 15. Reserved 16. Reserved 17. Buildable Tract Area (Line 4 less Line 14) 18. Maximum permitted density 19. Maximum permitted number of dwelling units (Line 17 multiplied by Line 18) (Note c) Notes: a. Enter appropriate acreage in Column A, multiply Column A by factor in Column B and place result in Column C. b. When resource protection areas overlap, enter the affected acreage on the line with the higher resource protection factor and do not include it in the calculation of the resource protection area having the lower factor. Do not double-count resource protection acreage. c. Where necessary to accommodate the number of dwelling units permitted in Line 19 and still meet other objectives of the Master Plan, the Municipal Agency may permit development to occur in those resource protection areas identified in Lines 8 through 13 in inverse order (beginning with "areas of other woodlands" identified in Line 13 and proceeding to areas of Class III agricultural soils and so forth) to the minimum extent necessary to accommodate the permitted number of dwelling units, provided, however, that the layout of the subdivision shall be designed to minimize the need for intrusions into the resource protection areas and further provided that the Municipal Agency may require that development be directed into more restrictive resource protection areas to accommodate other objectives of the Master Plan and this Article. The Municipal Agency may require conservation easements on portions of lots that include resource protection areas that need not be disturbed and/or are not permitted to be disturbed for the construction of a dwelling and its appurtenances. 9/16

10 C. Calculation of maximum permitted impervious surface coverage. acres x = acres Buildable Maximum Maximum Permitted Tract Impervious Impervious Surface Area Surface Ratio Coverage" In Bedminster this method is utilized in a zone where the base density is one unit per 10 acres and the average densities in applying this method is resulting in one unit per 20 acres since enacted. In light of the soon to be adopted Water Quality Management Standards and the Development Capacity Analysis for Upper Freehold Township performance we concur with the Land Use Plan s recommendation on increasing lot sizes in the AR and RR-5 zones. Minimum Tract Size Identifying a minimum tract size is a policy decision on the part of the Board. BAI has recommended minimum lot sizes for certain development options and in some cases we have not. More often it is dependent on the number of lots that are going to be created especially in considering cluster options. In Hopewell the Board wanted a minimum number of acres to advance the various development options because of hydrology issues (water availability). Therefore, they wanted to limit the number of smaller lots within the cluster options where they offered a bonus. In the MRC zone 40 acres is the minimum and in the VRC District it is 18 acres. Conversely, in municipalities like Howell no minimum is imposed. The reasoning there was mainly because of the number of smaller lots. Average existing lot sizes were mainly within the vicinity of ten to 15 acres. In some municipalities such as Washington Township (Morris County) they utilize developable land to authorize use of the cluster options. This option was developed to address environmental constraints. In reviewing tract sizes within the Township we found 2,561 farm assessed parcels that would not receive the benefits the Land Use Plan proposes for parcels greater than 20 acres. Each property owner within the zone should be treated equally with each development option available to them. Undersized parcels (nonconforming parcels) would be treated under a well structured and limited grandfather provision. Mandatory Clustering 10/16

11 In Pemberton Township, Burlington County, mandatory clustering is required when two or more lots are proposed in its agricultural zone. BAI was Pemberton consulting planner when this was instituted. The policy behind the concept was to maintain larger contiguous tract of farmland and wooded tracts. This is also the case in Jackson Township (Ocean County) in the Pinelands portion where the minimum lot sizes are 3.2 acres per unit. BAI also advanced a mandatory requirement in Howell, but just not for clustering. Beyond the "open lands" and clustering option applicants were also offered the ability to do "lot averaging" and Farmland Subdivisions. The reasoning here was to off-set the conventional sprawl effect that the previous conventional zoning pattern was having within the Township. Another approach to mandatory clustering is requiring the selection of one of several options (clustering) and requiring the applicant to receive authorization from the Planning Board to do a conventional subdivision based on reasons established in the ordinance. This again is the case in Howell Township where prior to BAI s involvement there you needed authorization from the Board to do a cluster subdivision and there was no clear basis for the granting of the authorization. We agree with the Land Use Plan s recommendation regarding mandatory clustering for parcels 20 acres or larger. We would also expand that recommendation for parcels less than 20 acres. Conventional subdivisions would only be permitted for parcels if they are a minor subdivision or agricultural Subdivision or if an applicant can justify before the Board that the proposed plan meets goals and objectives of the Master Plan which would be adopted and codified within the Land Use Regulations. By doing this the Board is presented objective criteria for approving a conventional subdivision. Wastewater Disposal The Land Use Plan does not address the disposal of wastewater as a topic in setting forth development options. We believe it is a critical policy decision the Board should address in achieving the vision for development, preservation of natural resources and providing needed equity for property owners. The Board should consider the provision of onsite and decentralized or cluster wastewater systems for certain size developments and at the same time the Township should address the management of these systems. Management can be set up in areas of new development that use onsite, decentralized, and clustered systems of any size for residential and commercial wastewater treatment and disposal. These systems can be protective of public health, drinking water supplies, and the quality of water resources if they are properly planned, installed, operated, and maintained. When they are managed properly, these systems can also protect property values, preserve tax bases, and result in life-cycle cost savings. Small communities across the United States are implementing programs designed to better manage their wastewater resources. Many 11/16

12 guides and electronic resources such as management handbooks, model programs, and tracking databases are readily available to groups beginning this process. An on-site system would rely on natural processes and /or mechanical components used to collect, treat and disperse/discharge wastewater from single family dwellings or buildings on 1.5 acres of land. It would be subject to a voluntary, management program model such as the EPA s Homeowner Awareness Model which ensures the systems are sited, designed and constructed in compliance with prevailing regulations and includes an inventory and documentation of all systems by regulatory authority with voluntary maintenance. A decentralized or cluster system is a wastewater collection and treatment system under some form of common ownership and management that provides treatment and dispersal/treatment of wastewater from two or more homes or buildings but less than an entire community. These types of system would best be managed under EPA s Responsible Management entity model which follow the Homeowner Awareness model except that after systems are constructed, operating permits are issued to a management entity that performs operation and maintenance activities. These systems could reduce lots to an acre. Many Board members will view this issue as a matter to be determined by the Board of Health but hopefully you will see that it can impact possible development options. In addition upon approving a project which utilizes the cluster system option an operating and maintenance agreement should be produced as a matter of final approval. Development Options As noted above we are recommending to the Board it abandon the noncontiguous clustering development option in the AR and the RA- 5 zones. In place we are recommending an Open Lands Subdivision, Clustering and Lot Averaging technique which are accepted options in the Agricultural Smart Growth Plan. Open lands zoning is a development concept that seeks to promote the objectives of the Land Use Plan to protect the Township s critical resources. This concept requires most of a tract to remain open and available for farmland or natural resource protection, and defines minimum standards for soil quality and usable land for the open lands. The remaining land is then planned to accommodate the permitted residential development. The open lands zoning technique provides for the retention of 70% to 75% at a minimum of the parcel for continuing agricultural or resource conservation use, and limits the actual extent of residential development to no more than 25 to 30% of the parcel, arranged on lots of 1 acres or 1.5 acre. Clustering, designed to provide useful tracts of open space as a byproduct of residential development, permits a reduction in the minimum lot size in return for permanent commitments of open space areas, with the open space dedicated to either the Township or homeowners association. Clustering is permitted where at least 65% of the tract can be retained in open space, subject to a minimum lot size of 1.0 to 1.5 acres. 12/16

13 Lot averaging, under which the reduction in the size of some lots is permitted provided that other lots exceed the minimum lot area requirements, is a recommended development option. The lot averaging approach should require that a majority of the lots fall within a specified range of lot sizes, in order to create larger lots designed to meet specific conservation objectives. This form of lot averaging offers greater potential to conserve critical resources than some other forms of development concept. This technique allows the subdividing of smaller lots for family or income purposes while retaining the integrity of the existing use Under the Open Lands Subdivision and Clustering techniques we are recommending several options for the Boards consideration and discussion. e. Open Land Subdivision or Clustering A1 Method Under the A1 method in the AR zone with a lot size of 1.5 acre lots utilizing a 70% or 65% open space requirement using regular septic systems would result in 0.17 units per acre. f. Open Land Subdivision or Clustering A2 Method Under method A2 in the AR zone with a lot size of 1.0 acre lots utilizing a 75% or 65% open space requirement using cluster septic systems would result in 0.17 units per acre. g. Open Land Subdivision or Clustering B1 Method Under the B1 method in the AR zone with a lot size of 1.5 acre lots utilizing a 70% or 65% open space requirement using regular septic systems and being granted a 25% bonus would result in 0.20 units per acre. h. Open Land Subdivision or Clustering B2 Method Under method B2 in the AR zone with a lot size of 1.0 acre lots utilizing a 75% or 65% open space requirement using cluster septic systems and being granted a 50% bonus would result in 0.25 units per acre. Because of the large amount of preserved lands all clusters which abut a preserved parcel must be arranged so as the open land lot is contiguous to preserved parcel. Each method would require one of the wastewater management options previously noted. Equine Community Option In Bedminster Township BAI is seeing more and more application from property owners for barns, paddocks, riding arenas (indoor and outdoor) with principal residential development proposals and even in some cases no principal residential proposal except for an accessory apartment above a storage shed for a caretaker. Bedminster will likely expand its list of permitted and accessory uses in its R- 13/16

14 10 District as it in the process of conducting a Periodic Reexamination Report. In Andover Township (Sussex County) riding academies and stable are addressed as a conditional uses. In most other municipalities such as Tinton Falls it is addressed as an accessory use (housing of equine). The option as proposed could be an issue of spot zoning. The option should be an option or established as a conditional use. It is somewhat unique so it should not be exclusively to specific parcels. This would be analogous to establishing a zone for golf courses. As proposed it is too limiting to a property owner, but recognizing the number of individuals in the Township who do care for equine it should be a development option or a conditional use for the AR and RR-5 districts. The Horse Park Development overlay zone has several recommendations in terms of permitted uses which could again be converted into conditional uses with many of the suggestions under the recommended uses converted into standards for the uses. Again this allows for further needed features to maintain the Township s rural character. PEC Parks, Education and Conservation The Land Use Plan Element states that the public purpose of this district is to protect environmentally sensitive lands. It goes on to provide examples such as the Assunpink Watershed, Monmouth County parkland and conservation lands, and, conserve open space, agricultural lands, public parks, schools and other important environmental areas, i.e., stream corridors, 100-year flood plains and wildlife habitat. It also states, " A permits a number of mixed types of uses which would not be permitted on a number of the parcels because of State law and a mix of tax-exempt parcels and Non-publicly owned land." They are a number of recommendations we would suggest for this zone. i. There should be an established purpose for the zone. The first subsection should establish should be the reason why the zone exists. j. The zone seems to mix publicly owned and privately-owned land. If the zone is for public purpose (Publicly owned State, County and Township owned land for passive and active recreation and School Board property for school related purposes) then the permitted uses should reflect only those purposes related to the function of the property. k. If there are properties within this zone which the Township wants to restrict development it should utilize an "official map" to identify these propertiesor identify the properties on the "action Plan" of the Open Space and Recreation Plan. Non-Residential Development 14/16

15 The Land Use Plan makes a number of non-residential development recommendations including the extension of certain zones, creation of new locations, expansion of permitted uses and addition of new permitted uses. The Land Use Plan also provides a good discussion about balancing residential and non-residential land use and also an analysis to determine the future demand for commercial gross floor area within the Township. The analysis shows a demand for 584,902 square feet of commercial space while the Township already has approximately 4,699,000 in the Highway Development and Community Commercial zone without the calculating the increase of 240 acres. The analysis brings into question the expansion of the Community Commercial and Highway Development Districts. The recognition of a permanently preserved farm within the Highway Development District and removing it to the AR zone is the only change that we would recommend at this time. The examination of expanding permitted uses in the commercial zones is more advantageous. We do agree with the Land Use Plan s diversification of permitted uses and conditional uses in the Community Commercial, Highway Development and Village Neighborhood District. The conditional uses will require additional work in determining specific standards, but where the Plan expands its discussion on standards creates a positive starting point. We concur with the recommendation of expanding Hornerstown if the objective is to bring in properties that could utilize non-individual (community septic systems) as previously discussed. We tend to share the concerns of the Land Use Plan Element and the 2007 Land Use Plan Element that the Research Office and Manufacturing raises concerns about its compatibility with the "rural residential surrounding" uses. In reviewing the ROM District we have identified several factors. They are: A number of residential properties that abut the zone or are included within the zone, There are three (3) preserved farms that abut the zone, and A tributary of Doctor s Creek and associated wetlands impact the development ability of approximately 163± acres of the zone east of Sharon Station Road. Considering these facts we question the existence of the zone and would recommend it revert to the AR zone. The Land Use Plan recommends three (3) changes regarding the General Industrial zone. The expansion of the zone we question since it impacts five (5) residential properties which tax records were constructed over 80 years ago. In addition the qualified farms which extend to I-195 are impacted by the same stream and associated wetlands that continue into the ROM District. Therefore we would recommend that this recommendation in the Land Use Plan be abandoned. 15/16

16 The defining of "limited excavation" as recommended in the Land Use Plan should be pursued. Optional Development Alternatives for Development in the AR District The Land Use Plan s recommendation to eliminate the overlay for Commerce Park Planned Development is a positive recommendation and the recommendation for an additional Educational/Commercial/Planned Residential Development overlay is also positive with two modifications. We would recommend that the area be defined as a district preferably with the permitted uses as identified in the Land Use Plan. The other modification we would make is to eliminate the 100 acres for the Planned Residential Development and we would recommend that it allow for mixed use. Regarding the AR Agricultural Residential District- Horse Park Development we concur with the recommendation of the Land Use Plan this technique. As we previously noted we are suggesting that this technique should be an option to all property owners within the AR zone and that it should be established as a conditional use with many of the standards suggested within the Land Use Plan. Affordable Housing A land use plan must be coordinated with the Township s Housing Plan. Under the proposed rules although municipalities may phase in their affordable housing every three year, inclusionary sites must be in the municipality s zoning scheme when it files for certification. We realize that the Township has a Task Force working on the issue of affordable housing and ultimately the Task Force s report will have to be addressed by the Planning Board in adopting a Housing Plan Element and Fair Share Plan. Also the Board may be faced with amending the Land Use Plan to reflect any inclusionary housing sites. C: Susan Babbitt, Land Use Administrator Dennis Collins, Esq., Board Attorney Glenn Gerken, PE, Board Engineer 16/16