SUSSEX PASSAIC MORRIS SOMERSET

Transkript

1 April 2, 2011

2 New Jersey Highlands Region Overview of the Highlands Region Overview of Highlands Act and NJDEP Highlands Preservation Area Rules Relationship to MLUL, SDRP, COAH, DEP Rules Questions and Answers

3 Highlands Region The federal Highlands Region is a 3.5 million-acre region stretching across Pennsylvania, New Jersey, New York and Connecticut. The U.S. Forest Service, in cooperation with New York and New Jersey, issued a federal study on the Highlands in That study was updated in 2002 found an 11% population increase from 1990 to The Highlands Conservation Act was signed Nov. 30, 2004 by President Bush. The Act is designed to assist the four states in conserving land and natural resources in the Highlands Region through federal assistance for land conservation projects.

4 New Jersey Highlands SUSSEX PASSAIC BERGEN The 859,358-acre Highlands Region is roughly divided in half into the Preservation Area (414,959 acres) and Planning Area (414,959 acres). WARREN HUNTERDON MORRIS SOMERSET The Highlands Region stretches over seven counties and includes 88 municipalities. Five are entirely in the Preservation Area; 36 are entirely in the Planning Area; 47 have lands in each.

5 The Highlands Region includes 17% of the State s land base, yet it supplies 64% of the State s drinking water supplies for 5.4 million residents. Public water supply service includes the greater New Jersey Metropolitan Area, as well as, portions of Middlesex, Mercer, Burlington, Camden and Gloucester Counties. The needs of Highlands residents and municipalities are largely met through withdrawals from groundwater wells tapping local aquifers. In 2001, the Highlands Region was recognized as the first Special Resource Area in New Jersey.

6 Overall Goal of the Highlands Act N.J.S.A. 13:20 et seq. To protect the incomparable incomparable water resources and natural beauty of the New Jersey Highlands so as to preserve them intact, in trust, forever for the pleasure, enjoyment, and use of future generations while also providing every conceivable opportunity for appropriate economic growth and development to advance the quality of life of the residents of the region and the entire State. Section 2

7 Region-wide Goals for Preservation Area and Planning Area Protect, restore, and enhance the quality and quantity of surface and ground waters Preserve farmland and historic sites and other historic resources Preserve outdoor recreation opportunities, including hunting and fishing, on publicly owned land Promote conservation of water resources Promote brownfield remediation and redevelopment Goals Specific to Preservation Area Preserve extensive and, to the maximum extent possible, contiguous areas of land in its natural state, thereby ensuring the continuation of Highlands environment which contains the unique and significant natural, scenic, and other resources representative of the Highlands Region Protect the natural, scenic, and other resources of the Highlands Region, including, but not limited to contiguous forests, wetlands, vegetated stream corridors, steep slopes, and critical habitat for fauna and flora Promote compatible agricultural, l horticultural, l recreational, and cultural, uses and opportunities within the framework of protecting the Highlands environment Prohibit or limit to the maximum extent possible construction or development which is incompatible with preservation of this unique area Goals Specific to Planning Area Preserve to the maximum extent possible any environmentally sensitive lands and other lands needed for recreation and conservation purposes. Protect and maintain the essential character of the Highlands environment Promote the continuation and expansion of agricultural, horticultural, recreational, and cultural uses and opportunities Encourage, consistent with the State Development and Redevelopment Plan and smart growth strategies and principles, appropriate patterns of compatible residential, commercial, and industrial development, redevelopment, and economic growth, in or adjacent to areas already utilized for such purposes, and discourage piecemeal, scattered, and inappropriate development, in order to accommodate local and regional growth and economic development in an orderly way while protecting the Highlands environment from the individual and cumulative adverse impacts thereof Promote a sound, balanced transportation system that is consistent with smart growth strategies and principles and which preserves mobility in the Highlands Region

8 Role of the Highlands Council The Highlands Act establishes the Highlands Water Protection and Planning Council (Highlands Council), a fifteen-member appointed body comprised of elected and public officials from all seven Highlands counties. Primary responsibility is the development and implementation of a regional master plan for the entire Highlands Region. In conforming municipalities, has review authority for development projects that meet certain thresholds; also has review for capital projects by municipalities and counties.

9 Role of NJDEP The Legislature included specific development standards for projects in the Preservation Area; NJDEP adopted Highlands final rules consistent with those standards on December 4, These rules apply to major Highlands development, which is defined to include any non-residential development. Any development meeting the definition of major Highlands development requires a Highlands Preservation Area Approval (HPAA) from NJDEP. Within the Preservation Area, NJDEP currently handles all exemption determinations in coordination with the Highlands Council as necessary.

10 Current Highlands Litigation OFP, L.L.C. v. State on December 9, 2008, the New Jersey Supreme Court upheld the constitutionality of the Highlands Act. According to the court, plaintiff's suit alleging that the act's application to its property was an unconstitutional taking was correctly dismissed for failing to exhaust administrative remedies since it did not apply for a hardship waiver. It agreed with the Appellate Division that retroactive application of the act is valid. Warren County et al. v. State Appellate Division upheld trial court decision holding that Highlands Act constitutional and that farming is not a suspect class for equal protection claim; the State Supreme Court denied a petition for certification ; in July 2010 the U.S. Supreme Court denied to hear the case effectively ending this matter. Heritage at Independence, LLC v. State In August 2010, the Appellate Division held that the Highlands Act does violate Mount Laurel affordable housing mandates. Several appeals of Highlands Council adoption of Regional Master Plan and Governor s issuance of Executive Order 114; currently pending in the Appellate Division. i i NJDEP Septic Density standard upheld by administrative law judge and NJDEP Commissioner after remand from Appellate Division.

11 Highlands Act Landowner Fairness Provisions To ensure that the development restrictions imposed by the Highlands Act and NJDEP s Highlands Rules do not result in a regulatory taking, the Legislature has included a number of provisions to address landowner fairness. These provisions include: 17 exemptions, including those for the construction of a single family dwelling on a lot in existence on August 10, 2004, or the expansion of a single family dwelling in existence on that date; Waivers to permit redevelopment of NJDEP brownfield sites and areas with at least 70% impervious surface identified by the Highlands Council; Appraisals conducted by either Green Acres or SADC of willing sellers property utilizing the land use regulations and environmental laws in effect as of January 1, 2004, which excludes the Highlands Act, Highlands Rules and the amended Stormwater Rules; in effect until June 30, 2014; and The Highlands Region transfer of development rights program developed by the Highlands Council.

12 Highlands Act Landowner Fairness Provisions Highlands Act Exemptions For example some of the 17 exemptions in the Highlands Act include: Exemption 1 allows for the construction of a single family dwelling, for an individual's id own use or the use of an immediate family member, on a lot owned by the individual on August 10, 2004 or on a lot for which the individual had on or before May 17, 2004 entered into a binding contract of sale to purchase that lot. Exemption 2 also allows for the construction of a single-family dwelling on an undeveloped lot that lawfully existed as of August 10, 2004, provided that the construction does not result in the ultimate disturbance of one acre or more of land or a cumulative increase in impervious surface by one-quarter acre or more. Exemption 4 allows the reconstruction of any building or structure for any reason within 125% of the footprint of the lawfully existing impervious surface on the site. However, the reconstruction may not increase the lawfully existing impervious surface by one-quarter acre or more. Exemption 5 permits an improvement to a single family dwelling in existence on August 10, 2004, including but not limited to an addition, garage, shed, driveway, porch, deck, patio, swimming gp pool, or septic system. Under this exemption, NJDEP s rules interpret the term in existence to mean that the home was issued a certificate of occupancy no later than August 10, 2004.

13 Highlands Act Landowner Fairness Provisions Highlands Act Waivers Where a project is a major Highlands development and is not exempt, the Highlands Act creates a permitting system and a system of three case-by-case waivers issued by NJDEP to allow any necessary relief: A waiver to permit development if determined to be necessary by NJDEP in order to protect public health h and safety. A waiver to permit redevelopment, as identified by the Highlands Council, of an NJDEP-qualified Highlands brownfield site or area with at least 70% impervious surface. A waiver to avoid the taking of property without just compensation.

14 Highlands TDR Program Overview A regional program that permits the transfer of development rights, termed Highlands Development Credits (HDCs), to further the goals of the Highlands Act. Parcels in the Protection Zone, Conservation Zone, and environmentally-constrained subzones of the Preservation Area eligible to serve as sending zones. Landowners in the Sending Zones receive HDCs for the development limitations placed on their property, which they may later sell. Receiving Zones under the Highlands Act are voluntary. With amendments to the Highlands Act in May 2010, receiving zones may be located anywhere in the State. Program is in its first stage, with HDCs being allocated to eligible properties and the Highlands Development Credit Bank purchasing HDCs from qualified landowners. To date, the HDC Bank has acquired 87 HDCs with a value of $1,392,000 preserving 109 acres. Will be closing on the purchase of another 54.5 HDCs valued at $872,000 this spring. This will result in the permanent protection of 191 acres in the Preservation Area through the first year of the Bank s acquisition program. Third round of HDC acquisition consideration will be heard by the HDC Bank at its July 2011 meeting.

15 Highlands TDR Program Overview Role of Highlands Council Establish TDR program, including working with municipalities to establish TDR Receiving Zones; approve deeds of easement; Establish initial Highlands Development Credit value (currently $16,000 per HDC); Determine HDC allocation for Sending Zone parcels and, where applicable, hardship eligibility; Assess program at specified intervals for improvements; Work to pass new TDR legislation providing greater opportunities for use of HDCs (i.e. create more demand). Role of HDC Bank Issue HDC certificates after property owner records appropriate deed of easement; Serve as administrator of TDR program by tracking all HDC transactions; Serve as an information clearinghouse regarding the TDR program and dli link potential lhdc buyers and sellers; and Serve as buyer and seller of HDCs.

16 Highlands TDR Program Overview The Highlands Council has received 68 HDC Allocation Applications since launching the program in November This includes 39 new applications received since January 1, Of the 29 applications received prior to January 1, 2011, HDCs have been allocated by the Council to 18 properties. A total of 503 HDCs have been allocated to these properties by the Council with a total value of $8,048,000 based upon the $16,000 initial i i HDC price. The total acreage receiving an HDC allocation to date is acres. The average price per acre is $11,755. HDCs can be purchased by conservation organizations with the possibility of later resale as receiving zones are established. Alternatively they could be retired.

17 Highlands Act Landowner Fairness Provisions Highlands Transfer of Development Rights Program The Highlands TDR Program is a regional program that permits the transfer of development rights, termed Highlands Development Credits (HDCs), to further the goals of the Highlands Act. Municipalities may encourage the transfer of development potential from areas that a community wants to preserve, called Sending Zones, to areas that are more appropriate to accommodate increased growth, called Receiving Zones. Landowners in the Sending Zones receive HDCs for the development limitations placed on their property, through deed restrictions, which they may later sell. HDCs purchased to build in a Receiving Zone allow for development or redevelopment at a density or intensity greater than permitted in the underlying zoning. Receiving Zones under the Highlands Act are voluntary and can be located anywhere in the state of NJ.

18 Highlands Act Municipal Fairness Provision Highlands Municipal Property Tax Stabilization Board & Fund Section 19 of the Highlands Act establishes a regional tax stabilization board fund to compensate qualified municipalities for a decline in the aggregate g true value of vacant land directly attributable to implementation of the Highlands Act. The board is an independent commission within the Treasury Department comprised of three members appointed by the Governor. The Act also creates a Highlands Municipal Property Tax Stabilization Fund. Monies in the fund come from the Highlands Protection Fund, which is credited with revenues from the State realty transfer tax. The process for a qualified municipality to receive State aid from the tax stabilization fund relies upon information derived from municipal assessors and the county tax boards. First, a municipal assessor provides a report to the county tax board of the assessed value of each vacant parcel in the base year (2003) and the change in the assessed value of each such parcel in the current tax year attributable to successful appeals of assessed values of vacant land. Next, the county tax board computes and certifies the aggregate decline in true value of vacant land ( valuation base ). Last, the tax stabilization board multiplies the valuation base by the municipal tax rate to determine the amount of tax stabilization aid to be provided. If funds insufficient, aid awarded on a pro rata basis. The Tax Stabilization Board cannot begin its efforts until municipalities begin to conform to the Regional Master Plan.

19 Municipal Plan Conformance Conformance is mandatory for lands in the Preservation Area and voluntary for lands in the Planning Area. Master plans and regulations for Preservation Area lands had until December 8, 2009, to submit a Petition to conform to the Regional Master Plan. Municipalities with lands in the Planning Area can choose to conform with the Regional Master Plan at any time. 76 of the 88 Highlands municipalities have filed a Notice of Intent to conform (non-binding in the Planning Area) 74 municipalities and 4 counties have filed a 2009 Plan Conformance Grant Application

20 Plan Conformance Update Petitions Submitted: 64 (59 Municipalities and 5 Counties). Of these, 51 have been deemed Administratively i i Complete & posted to the Highlands Council website (including 2 Counties). Of these: Petitions i Approved (19): Townships Bethlehem, h Byram, Chester, Denville, Green, Lopatcong, Mahwah, Mount Olive, Rockaway, Tewksbury, and West Milford; od; Boroughs Califon, Glen Gardner, Hampton, High Bridge & Lebanon; Towns Clinton; and Passaic County and Somerset County

21 A Transparent Process The final version of the Regional Master Plan was approved at the 74 th public meeting of the Highlands Water Protection and Planning Council. Meetings were advertised in accordance with the Open Public Meetings Act. Members of the public were invited to speak at the end of each meeting. Written comments were also accepted. The Highlands Council website ( has audio recordings and minutes from each meeting; various technical documents and supporting materials used in the creation of the Plan, the Regional Master Plan itself and all Plan Conformance Petition information. The website also has the Highlands Interactive Map, Consistency Review Application and HDC Estimator Tool to enable users to see how the Regional Master Plan will affect development in their communities.

22 Inter-Agency Coordination In preparing the Highlands Regional Master Plan, the Highlands Council, in accordance with Section 9 of the Highlands Water Protection and Planning Act, consulted with: the Department of Environmental Protection, the Department of Community Affairs, the State Planning Commission; the Department of Agriculture; the State Agriculture Development Committee; the Department of Transportation; and municipal, county and state governments. During the preparation of each draft and the final version of the Regional Master Plan, state agencies were provided with components of the Plan prior to public consideration by the Highlands Council. Comments from these state agencies were incorporated into the final version of the components submitted for Council approval.

23 The RMP and COAH The Highlands Water Protection and Planning Act requires the Council on Affordable Housing to consider the Regional Master Plan prior to making affordable housing determinations under the third round for all of the 88 municipalities in the Highlands Region. Executive Order 114, signed September 5, 2008, by Governor Jon S. Corzine, further stated that the Highlands Council shall work kin cooperation with the Council on Affordable Housing, the Department of Environmental Protection and the Department of Community Affairs to review COAH s thirdroundgrowthprojectionsforconsistencywiththeround consistency with the Highlands Plan and assist COAH in developing adjusted growth projections within the Highlands Region, consistent with the Highlands Plan, to be utilized by municipalities that conform to the Highlands Plan. It also allowed for reasonable extensions of deadlines for municipal master plans and third round fair share plans to conform with the Highlands Act and the Fair Housing Act. The EO also instructed the Highlands Council and COAH to enter into a joint Memorandum of Understanding within 60 days.

24 Working with OSG The Highlands Act requires the Highlands Council to, within 60 days of adoption, submit the Plan to the State Planning Commission for plan endorsement for the Planning Area of the Highlands Region. On May 9, 2007, the Office of Smart Growth and the State Planning Commission provided to the Highlands Council a consistency review and comments regarding the draft of the Regional Master Plan. The comments and consistency review were incorporated in revisions to the draft and are reflected in the final version of the Regional Master Plan.

25 Benefits of Plan Conformance and Highlands Act Highlands Council Planning Grants, Smart Growth Grants and Technical Aid The Highlands Council is authorized to provide grants for the reasonable expenses associated with preparing conforming master plans and land use ordinances. Additionally, the Act provides automatic qualification for the State aid, planning assistance and technical assistance for smart growth projects offered by the Office of Planning Advocacy. State Plan Endorsement When the State Planning Commission endorses the Regional Master Plan adopted by the Highlands Council, any municipal i master plan and dd development regulations approved by the Council are deemed the equivalent of having those plans endorsed by the State Planning Commission. The Legal Shield and Legal Representation The Highlands Act provides a strong presumption of validity to master plans, land use ordinances and local decisions of municipalities and counties made in conformance with the Regional Master Plan to be adopted by the Highlands Council. This enhanced presumption of validity is one of the strongest levels of legal protection available in the State. The Act also provides an opportunity for direct legal representation where needed.

26 Benefits of Plan Conformance and Highlands Act Tax Stabilization Funding The Act also creates a Tax Stabilization Board which will determine the compensation amount due to qualified municipalities for the decline in the aggregate true value of vacant land caused by the Highlands Act. Enforcement of the Regional Master Plan The Act authorizes the Highlands Council to take enforcement action for any violation of the Regional Master Plan in the Preservation Area or in the Planning Area where municipalities or counties have come into conformance with the Regional Master Plan. Transfer of Development Rights, Impact Fees and Enhanced Planning Grants The Act also requires the Council to establish a voluntary TDR program and offers financial i incentives i to municipalities i i for creating receiving i zones. These incentives include enhanced planning grants up to $250,000, reimbursement for costs of amending local ordinances, authority for the use of impact fees up to $15,000 per unit, and priority status for state infrastructure spending.

27 Benefits of Plan Conformance and Highlands Act Priority for Green Acres and Farmland Funding The Highlands Act provides priority funding opportunities under Green Acres and State Farmland Preservation for land within the Preservation Area and for those municipalities in the Planning Area that have adopted transfer of development rights ordinances. Model Land Use Ordinances and Technical Guidance The Highlands Council has developed model land use ordinances and development regulations. In addition, the Council provides technical assistance in environmental science, planning, economic development and GIS services to assist with municipal and county conformance.

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