TC Minutes 02-22-07 - Joint Plan Bd Print E-mail



Montville Township Committee Special Joint Meeting with the Planning Board

Thursday, February 22, 2007, 6:30 p.m.

Montville Township Municipal Building, 195 Changebridge Road, Montville, New Jersey


Township Committee:

Mayor Art Daughtry - present                                    Jean Bader - present

Deputy Mayor Deb Nielson - present                        Jim Sandham  - present           

Steve Moscone – present

Planning Board Members:

Mr. Rosellini - present                                                Mr. Karkowsky - present           

Ms. Kull - present                                                Mr. Daughtry - present

Ms. Nielson - present                                                Mr. Visco - present

Mr. Lipari - absent                                                Mr. Lewis - present

Mr. Speciale (alt#1) - present                                    Mr. Hines - absent           

Mr. Witty (alt#2) – present

Also present:

Michael Carroll, Esq.

Stan Omland, PE

Joseph Burgis, AICP, PP

Trudy Atkinson, Township Clerk 

Frank Bastone, Township Administrator







Overview of Highlands Regulations/new legislation – Stan Omland, PE

Summary of highlights of Highlands and regional master plan as well as recently released documents and maps and documents from Highlands meeting yesterday.  A session was held with all Morris County communities with 3 hours of time where presentation and questions were asked.  Memo distributed by Mr. Omland highlights the remarks of Highlands. 

Background given:  In 2004 Gov. McGreevy established Highlands. It became effective March 30, 2004 and was re-adopted December 06.  The act directed NJDEP to prepare rules, which were effective May 05.  The Act also created Highlands Commission.  The Rules require the Council to prepare a regional master plan for entire highlands region (Preservation and Planning) and this draft was released and has already had two time extensions.  There are 88 municipalities in 6 counties with over 800,000 acres involved.  The principal purpose:  protect drinking water for over 4 million people (half of the state). 

There are two distinct areas in Highlands.  Map reviewed:  The dark purple is preservation, and the light purpose is preservation area.   Montville is split with about 70% planning and 30% preservation.  Most of the Township is in the planning area.  There is no guidance on these lands until the regional master plan released.  Preservation took place in 2004.  These are mandatory and governed by DEP.  This board has no jurisdiction on it and this area is subject to DEP. 

Objective tonight is discussion of planning area and affects 2/3 of township and impacts to the township’s master plans and objectives.  Politically act was created to protect and preserve ½ state water preserve.  Mr. Omland elaborated.

Area consists of a protection zone, conservation and planned community zone.  There is no conservation zone within our borders.  Conservation is farmland.  The Highlands staff indicated that the light green planning area has the same rules as the ‘protection’ zones have.  These standards and objectives are transferred to light green areas in Montville that have restrictive development constraints.  The lighter is purple area:  commercial/housing/retail.  It is in these areas that Highlands say they want to impose additional development constraints.

The Highlands in pressing forth master plan has a scheduled closed public comment on March 2nd, and has extended it to April 2nd.  This is because the public has been commenting on lack of mapping and reports in order to grasp reports of new master plan.

How the act may impact our community discussed:  upon adoption of this regional master plan which will happen in around 60-90 days, they will review comments and/or may extend adoption.  After adoption, the Highlands protection area becomes rule of the lay of the land.  There have been statements in documentation that opting in on behalf of municipalities will be voluntary.  It means we will embrace and take their rules as our own, and will build them into our master plan and ordinances.  Opting in is optional, and Highlands would want each town to opt in.  There are two benefits:  the State will support a municipality in a land use case supporting enhanced validity and/or presumption of validity on land use case defense if lost.  The other benefit would be funding that would be available to implement this conformance process and that approx. 12M will be divided to respond to the Highlands.  These are two benefits of opting in.  If you feel strongly that we have same objectives, we would opt in.  If we choose not to opt in because of mapping lines because we don’t believe in, you may ‘opt out’ and not participate in these rules and regs.  The fear that Morris County has is that the underlying stick or penalty is that Montville Township will not be consistent with State plans (i.e. State Redevelopment/COAH/Highlands/Wastewater Management Plan) and if not consistent, Montville may not be eligible for sewer/water permits, so there is unknown factor that may have an impact on projects in Montville should we not opt in.  This is the ‘fear’ that concerns us:  What will DEP/DOT do on projects that are outside Highlands but influenced by Highland’s jurisdiction?

Difficulty to our community is the purple areas on the maps.  These areas should be able to be redeveloped.  These areas contain our existing corridors (Changebridge/Rt. 202/Rt. 46) and are zoned for commercial/retail and for more intense uses.  We are in a phase where there are some new developments going on and we are also looking at upgrading zoning, anticipating these properties to newer standards.  The fear is that this act will affect our ability to do this and/or shape them in such a way that a good ratable may be impaired by the regulations that are yet to come in within the purple area.  Some purple properties may be better located in the green area.  The data that is available is still not good nor is it easily accessible.  Omland Engineering prepared the displayed map that was developed using County and Highland’s mapping but this data is not enough to see what impacts our community.

We must equate ourselves with the Master Plan.  Data layering doesn’t allow for good evaluations.  There is not enough cohesiveness to evaluate the mapping.  We have to decide to opt in or opt out and watch accordingly.  Highland’s commission gave some thoughts.  Some of the conclusions are based on discussions with Highlands.  While they have funding for towns that opt in, and we will abide by their rules, monies are available.  What they said was that all towns have to put out funds to make these evaluations, and how do we know we want in:  they suggest we request ‘discrepancy’ funds without strings attached.  Suggest:  in order to fully evaluate you need more mapping on a professional level but we shouldn’t endure funding on this.  Ask for these funds without strings attached.  Regional Master Plan and mapping are not fully available.

We should also ask for an extension of April 2nd since it will not allow us to have the time to evaluate the Highlands mapping.  We should definitely suggest that Rt. 46, 202, Changebridge are ratables, make sure they are in the purpose and make sure they are not excluded.  We need to get these mapping changes into Highlands.   

Highlands indicated they wanted input on where they may have made mistakes on mapping.  A prime example given that day was Towaco Center.  The Highland Map currently takes a lot of this area away.  It was felt the sooner we get in the data with mapping information, the better.  We should get in before adoption of policies. 

Question raised:  how do we feel about opting in, and how does it affect home rule?  NJ guard’s home rule and we want to decide our home boundaries, and we asked how they viewed opting in vs home rule.  At the Highlands, representatives indicated they wouldn’t change zoning, but they would decide intensity – sewer and water would be their discretion.  That will cut it down dramatically as to what is available.  They will strip us of water and sewer allocation.  They will also strip us of our ability, if we opt in, of individually granting relief from Highlands rules by way of waiver/variances, we won’t have the chance to grant it without going up to the Highlands.

Existing homes and impact to these residences discussed.  Mr. Omland explained single-family homes built with CO issued prior to 2004 are exempt from Highlands.  No restrictions on any zones in the Highlands with these structures.  Existing dwelling unit can have an addition.  One lot is all that you are entitled to.  No subdivisions would be considered.

Marie Kull:  in the areas, if someone wants to develop a portion of one for 88 and request more, this type of subdivision would be turned down?  If we don’t opt in, are we penalized?  Mr. Omland elaborated again that they might deny sewer and water permits and/or other type of DEP permits. 

He continued:  We have projects where we are inconsistent with state programs.  There are no stated facts.  One agency may approve and another may not.  The dark green area is regulated now since 2004 and is banned from 2004.  Haven’t heard of many towns opting in.

When asked at the close of time, how many towns are going to opt in, Highlands felt 75% will opt in.  Ladis Karkowsky:  what if they only get 25%?  Stan Omland, PE: There is no better grade than to see what voluntary contribution is.  Would be belief, but realize the intent is for the rest of the state.  We didn’t talk about fiscal impact; didn’t talk about tax ratables; housing in NJ, this is one of those regulated documents that have a ten-year impact.  Have always said there would be a water tax.  Gov. Corizine said no taxes being considered.  This would actually be called a user fee (water tax).  They will need to pay this as a fee that will go to Highlands to buy land for those that lost it and to fund township and to pay township’s that lost revenue.  What percentage goes to municipalities?   Stan Omland, PE:  large document but unknown number at this time. 

Marie Kull:  can township do a class action suit?  Michael Carroll, Esq.:  a town can file a suit.  One county did file suit, and Morris is thinking of joining this suit, see little percentage in a township getting involved in a suit.  Politics behind this: only one legislator voted for this bill.  It was imposed by without and Mayor of West Orange was chief sponsor.  The figures were fudged.  Newark has a large watershed in area.  City of Newark received monies for Highlands.  Political powers to be:  people running Highlands do not live in Morris County and are outsiders.  Most of pressure for the Highland’s came from outside.  If you want to take land, buy it.  Governor indicates ‘no new monies’ for open space/historical preservation, and we will run out entirely this year.  At least 1/3 will go to urban areas if monies are extended.  There are no monies in this program.  Politics were heavily involved and a master fraud was involved in this plan. 

Art Daughtry:  we have 30 days to make this important decision; this is not a good thing.  We are better to be in the game up front, and get information to the Highlands on boundary changes we need.  People don’t understand that the Rt. 46 end of town is vulnerable.  If anything you should take back this message:  it is not just up in the northern section of town affected

Deborah Nielson:  consultants recommended putting a motion to Highlands for extension of comment period and put on the record that we object to this short comment period.  Second comment:  we should have mapping and additional info sent to Highland’s council prior to adoption of regional master plan.  We can’t get this done within current period, but if we spell these concerns out and contact legislators perhaps we can turn up the heat for the Highlands to delay adopting policies.

Deborah Nielson:  it was indicated by Highlands that there are some funds available.  We need proposals from professionals to do this work immediately so we need to see what funding we will need to do this work.  We should also make immediate request for the grant Highlands indicated was available.  Concerns noted that darker purple area in preservation area is inconsistent with our municipal ordinances, our ordinances nor do we have proposal to update our ordinances to be consistent with preservation area, if in fact, this is law, then we need to make this consistent.  May be funding available in Highlands to do this, then we should apply.  Stan Omland, PE:  know of no town that will consistent with Highlands.  May not suggest that we expend large amounts of monies for land studies at this time since right now there is no obligation to do this.  Suggest we make request for discrepancy funds which Highlands representative clearly said to make the request.  Difficulty is the lack of available mapping data in a form we can use since the data cannot be overlaid.  Struggling as to what this may cost.  Stan Omland, PE:  discussed mapping areas.  What may be appropriate is preparing a document that has overlay of existing topo, input wetlands and floodplains, and making sure what should be in is shown and delineated.  We would also want to engage individual property owners in this.  Mr. Omland notes that if township asks for mapping change, this is a monumental task.

Gary Lewis:  he indicated he took away with several points from yesterday’s Highland’s presentation:  heard what Stan Omland, PE said, but also heard them say that although maps are based on outdated data, that any changes to this map will need to be supported by science.  That it won’t be done politically.  This is too large a township venture.  Although he was originally enthusiastic about opting out, he was left with clear impression that state policy decisions regardless of municipal status will be made on same data that is in this regional master plan regardless of whether we are in or out and a lot of this will come down to water usage.  Can’t believe they are looking to finalize this by April. 

Steve Moscone:  worried about how our state government is run.  How can you possibly fund all the mapping and services and give it to them by this date.  Gary Lewis:  worst is that developments that get approved thru this township’s process has undergone a thorough review, and that their statement is we won’t lose ratables since they will tell us where we can ‘make up’ ratables, and this fact apparently didn’t matter as to what the impact would be to our municipality.  They will tell us what we can use as a ratable.  Mr. Moscone elaborated on concerns.

Deborah Nielson:  moved to request that we write to Highland to extend comment period beyond April.  Michael Carroll, Esq.:  thought that it would be a good idea to request your local legislators to propose a resolution to the assembly asking that they enter a request to extend adoption as ‘one entity’ in addition to the Township requesting this.  Agreed, motion amended and seconded by: Jean Bader

Discussion ensued as to how long we should request extension to.  Different timetables discussed:  Stan Omland, PE:  30 days dependent on realization of receipt of additional data by that time and/or If the data isn’t released, then we would need longer than 30 days.  Ultimately, based on suggestion by Township Administrator, Frank Bastone, Board moved to request the Highlands consider delaying adoption of policies as follows:  to allow a 60 day comment period at the time all mapping data is in a useable form and available to the general public. Roll call vote: unanimous

Board discussed requesting discrepancy funds.  Motion made by: Deborah Nielson to request grant/funds in the amount of  $200,000 to allow Montville to develop response to Highlands legislation.  Seconded by: Mayor Daughtry.   Roll call vote: Unanimous

Ladis Karkowsky:  controversial subject and Planning Board will continue to discuss this in the future.  No public comments at this time.

Overview of COAH/affordable housing regulations

Joseph Burgis:  presented overview and will focus on core areas.  Historic overview given starting with the Mt. Laurel lawsuit that required every township to provide for its fair share of its affordable housing.    COAH was established in l985.  They had 18 months to prepare regulations and in l986 they released the affordable housing numbers.  Mr. Burgis reviewed Montville’s affordable numbers starting from 1987 thru current years.  Our initial numbers was 280 but was recalculated to 161 (1987 to 1999 fair share).  They did not factor in recessions.  In early 90’s, townships barely saw affordable housing units being constructed. Then the second round came in, they re-examined issue, and now came up with a new number going back to 1987.  They doubled the timeframe and cut the numbers in half.  Now we have a third round certification, which was supposed to start in 99, but wasn’t published till 2004.  The delay was because they wanted to wait till 2000 census.  This did a number of things:  they will now make this a 10-year time to coincide with census data.   COAH also had the 2000 census data and re-evaluated numbers.  Montville’s 280 units had a recalculated number to 161.  Montville’s fared well in adjusted process and this is significant.  Fair share approach is way they calculate, noting there are 6 regions, and will be required to provide by proportion (employment, growth area, vacant land, percentage of region, etc.). 

Under this second round process, obligation of 161 units, recognize we did a lot to address affordable housing needs.  We had 494 credits, which indicates 333 surplus credits under second round process.  We filed third round and receive extension.

Under third round they changed rules of games.  They allow you to make determination.  He summarized various ways this is done.    Under these rules, rehab share, remaining prior rounds obligation and growth share requirements remain.

There are a number of formulas in third round rules, but these text comes down to basic: for every 8 dwelling units from 2004 to 2014, create one unit; and for 25 jobs, create one unit

Growth share discussed.  He indicated you have to look at CO’s construction permits and demo permits and project towards 2014. You then make determination as to which projects will be built in this community, and look at all vacant and under developed sites which sites have potential to redevelop to see which of these sites will occur within ten year period (historic trends).  3rd round has no rehab requirement and since in the second round we had 494 credits, our obligation is fulfilled and we now have 301 surplus credits.

Everything changed though, since in the third week of January, ruling from Appellant came down to alter regulations.  They affirmed:  use of ‘filtering’ unsupported by record, requiring reconsideration of need calculation; growth share methodology invalidated to extent that it relies on un-issued data from State Planning Commission, permits municipalities to dictate their obligation through restrictions on growth and excludes growth resulting from rehab and redevelopment.  Invalidated regulations permitting municipalities to impose set-aside without offsetting benefits, and invalidated regulations permitting municipality to age--restrict up to 50% of affordable housing needs.  It significantly confirmed regional contribution (RCA) that allows township’s to send to another willing township up to 50% of growth share obligations.  They affirmed credits/bonus and vacant land adjustments.  They said value of certain units in state dropped to meet affordable housing demands.  Court picked up on this.  This has significant affect on what our new number may be.  They invalidated regulations permitting township to impose set aside without offsetting benefits.  We won’t find supporting data to indicate 25 jobs equate to a housing need.  State refused to leave this info out.  This was thrown out.  COAH and state planning are now making decision to revamp the process or give us the information to exam it.  This is one of many things at issue.  Appellant decision requires COAH to supply new rules in 6 months.  Mr. Burgis doesn’t feel this will happen.  

What does this decision mean:  We applied for substantiate certification and we cannot be sued since this is stayed as well as builder’s remedies. Township is still protected from exclusionary lawsuits. Affordable housing obligation from prior rounds along with 3rd round are likely to change due to filtering issue, but given amount of affordable units actually constructed pursuant to prior round plan components, likely the township’s revised obligation will already be fulfilled. 

Growth share ordinance discussed.  Mr. Burgis recommended we consider this fee and collect the monies until all of this is sorted out. 

Under 3rd ground rules, you can make monetary contribution in lieu of building housing. Process requires that an ordinance be set on this fee.  COAH didn’t offer what this fee should be, but others use as low as 35,000 per unit; others came up with their own assessment, which should be based on what the cost of unit would be in that municipality.    Costs could be upwards of 480,000 so we had a large range of prices for the same unit.  It was suggested to COAH that we have a set fee on a region-by-region basis.  Each region can stand on its own, but it was felt the fee should not be one fee statewide.  Mr. Burgis gave examples of what you can do with these monies:  Can use monies for offering low mortgage.  Cannot use it to pay for an RCA to transfer. 

Gary Lewis:  should we develop a development fee ordinance that if you don’t have a development fee ordinance, vs growth share ordinance and how does it differ?  ; Development fee ordinance establishes within COAH regulations a set fee that imposes 1% of assessed value.  You can impose this on all types on housing.  You can exempt certain fees from this fee.

Gary Lewis:  if a 3-lot subdivision comes in today, are they suspended from this?  Mr. Burgis:  they will allow you to provide a setaside.  Court says 20% is sufficient.  Gary Lewis:  if we have a surplus, what purpose would this be.  Mr. Burgis:  Numbers will be adjusted.  Secondly, this doesn’t end with round 3.  There will be future rounds.  Recommend these fees be implemented as an ordinance.  You can apply it to non-residential which is 2% factor.  Monies though can only be used for COAH projects, mortgages; development fees can be used for RCA. 

Deborah Nielson:  although we may have large surplus numbers but some of these restrictions and controls have sunset provisions, and we will lose these units?  What is our protection in place to extend them or some other mechanism to protect this base?  Mr. Burgis:  he indicated you could extend by blanket ordinances.  He also explained that these units were designed to meet certain obligations, so these numbers don’t come back to create a problem in the future, but noted some believe differently.  This will be looked at in court case. He explained some of the original towns had 20-year restrictions, and this is why they looked at extending ordinance on restrictions (mentioned Mahwah). 

Jim Sandham:  absent sunset decision, have credit and filtering which is about 120 units, and do you think we will be in danger of not having access to these numbers?  Mr. Burgis:  under third round rules, crediting process allows you to get certain percentage of credit; rental bonus is not given under third round.  Haven’t evaluated the third round.  Mr. Sandham:  if you have excess credits are there any restrictions on monies you get from sale?  Mr. Burgis:  on RCA, these are two separate tings.  Some municipalities want to sell excess. 

Gary Lewis:  have a problem with setting up fee ordinance and voice concerns with the type of fee that would be required of the township.  Deborah Nielson:  you can use monies to help moderate-income families rehab housing; can have any percentage, and can also se this monies for income-qualified families. 

Art Daughtry:  asked that the Planning Board continue to investigate this subject.  Motion to unanimously adjourn this special joint meeting of Township Committee and Planning Board made by Deborah Nielson, Seconded by: Marie Kull.

Respectfully submitted,


Linda M. White, Planning Board Secretary


Gertrude H. Atkinson, Township Clerk

Absent with explanation

Absent with explanation

Last Updated ( Monday, 26 November 2007 )
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