SPECIAL JOINT MEETING
& PLANNING BOARD
Road, Montville Municipal Building
MINUTES OF FEBRUARY 22, 2007
Mayor Art Daughtry - present Jean
Bader - present
Deputy Mayor Deb Nielson - present Jim Sandham -
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
Michael Carroll, Esq.
Stan Omland, PE
Joseph Burgis, AICP, PP
Trudy Atkinson, Township Clerk
Frank Bastone, Administrator
PLEDGE OF ALLEGIANCE
STATEMENT OF COMPLIANCE
Overview of Highlands Regulations/new legislation – Stan
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
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.
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
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
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 Highlands’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. Highlands’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
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
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.
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 Highlands’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.
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.
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
controversial subject and Planning Board will continue to discuss this
in the future. No public comments at
of COAH/affordable housing regulations
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
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
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.
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
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.
Linda M. White