To: Mayor and Members of Township Committee
Subject: Highlands Plan and COAH Filing

This letter is submitted on behalf of some members of the Democratic Municipal Committee, who believe that Bernards should participate in the Highlands planning process and take the initial steps to “opt in” to the Highlands Regional Master Plan. We understand “opt in” to mean that Bernards will file a notice of intent and will then work with the Council to bring its master plan and ordinances into conformance with the Highlands plan. Our argument follows.

ONE: The Highlands Act of 2004, and the Regional Master Plan that it will produce, represent a victory of those, who believe we must preserve natural resources for the use of future generations, over those, who give first priority to development. The first article in the preamble of the model resolution sent to you by Highlands Council Exec. Dir. Eileen Swan states:

Whereas, the Highlands Water Protection and Planning Act … finds and declares that protection of the New Jersey Highlands is an issue of State level importance because of its vital link to the future of the State’s drinking water supplies and other key natural resources…

Bernards Township lies within the region covered by the act. As responsible citizens of the region and of the state, we should participate in the planning process and work to meet the objectives of the act.

 TWO: Bernards has an obligation to provide for its fair share of affordable housing. The Council on Affordable Housing [COAH] has determined the Bernards “third round” allocation, and Bernards must file a plan that provides for this quantity. Township professionals have developed a plan, the Planning Board discussed and endorsed it on December 16, and you plan to endorse it by Resolution 080530 that is on your agenda for December 23.

Affordable housing in New Jersey has a long and complex legal history. But it is fair to state that the quantity of housing that must be provided, and the manner in which this will be done, are still unsettled. Towns like Bernards must expect to be challenged by developers to provide more housing. The current recession may delay these challenges, but they will come.

If Bernards opts in and brings its master plan and ordinances into conformance with the Highlands plan, then there will be a strong legal presumption of their validity in legal challenges to our zoning. If Bernards does not opt in, then there will be no presumption of validity. Bernards will then be a tempting target, particularly if most of our neighbors in the planning region do opt in.

When he spoke to you on December 9, Frank Banisch chose his words carefully. But they do support what we say above.

THREE: We recommend that you file the notice of intent spelled out in the model resolution sent to you by the Highlands Council. John Malay said on December 9 that he could see no downside from doing this. We don’t see any either.

The final article in the preamble for the model resolution states:

Whereas, the [name of governing body] believes it is in the best interest of the [name of town] to conform to the Regional Master Plan.

Scott Spitzer suggested that it would be unethical for the Township Committee to endorse this statement if a majority of the members do not believe it. With the facts available now, you have no reason to not believe it. [Some additional pros and cons are in FOUR below.]

If you file the notice of intent and proceed with the work to conform to the Highlands plan, you may discover reasons for not conforming and then opt out. Language in the second resolve provides for this:

 … this Notice of Intent is not binding with respect to lands within the Planning Area.

This applies to Bernards, which is entirely in the Planning Area. If, during the conformance process, you find sufficient reasons for opting out of the process, you may do so. Bernards will then not be included in the Highlands Regional Master Plan.

FOUR: Peter Messina has suggested that the costs for revising our master plan and ordinances for conformance with the Highlands plan will be high. The Highlands Council has an active grants program that will help in some of this work. When known, the net cost to the township for conformance, is one of the factors that should be considered in the decision to complete the work and conform, or not to do this. You don’t know these costs yet.

He also suggested that the Highlands Council will meddle too much in local land use decisions after you conform to the plan. This is speculation. Why would the Council want to do this? If Bernards agrees to work within the regulations of the Highlands plan, and if it has competent staff and land use boards, then there is no justification for micromanagement by the Council. I doubt that it will have the resources to micromanage what happens in each town. You can learn more about their plans for this during the conformance process.

 The Highlands Act holds out the potential for the transfer of development rights from towns in the Preservation Area to towns in the Planning Area. However, it explicitly states that a decision by a town in the Planning Area to accept more development will be voluntary. If, during the conformance process, Bernards is pressured to accept more development then it wants, then it may opt out.

If there is insufficient acceptance of more development in the Planning Area, then there probably will be pressure from the development community to change the law in some way. No one can be sure now what will happen. But a law to require more development will probably be harder on towns that are outside the Highlands Regional Master Plan, than on those that are inside the plan.

FIVE: We recommend that you file the notice of intent to opt in with the Highlands Council, and that you not file the affordable housing plan with COAH at this time. Instead, send a notice to COAH that you have filed the letter of intent with the Highlands Council, and request the one-year extension of time to file with COAH that has been authorized.

Letter written by: Bill Allen, 44 Holmesbrook Rd

Endorsed by:
Jonathan Cloud, 8 Revere Dr
Victoria Zelin, 8 Revere Dr
Caroline Roi, 108 Old Farm Rd
Paul and Jayne Heckles, 15 Tamarisk Ct
Dorothy Schleifer, 112 Manchester Dr

Talk about the quality of communication! Instead of just having a civilized conversation, there is a sort of magisterial behavior that reminds one of the court in Alice in Wonderland. When one of our members asked why they could not speak at the time scheduled for public comment, she was told that the Committee could just change the rules whenever it wanted to. No wonder there’s so little room for them to listen to anyone else, to hear anything except each other’s exalted opinions.

Earlier in the evening, the Democratic meeting had heard an hour-long presentation from Elliott Ruga and Mark Zakutansky of the Highlands Coalition about the benefits of opting into the Regional Master Plan. Virtually everything that the Township Committee apparently believes about the Highlands option appears to be false. It’s true that the Highlands Council is trying to coax the towns within the Planning Area to opt into the Plan by deferring their COAH obligation for a year, and potentially relieving them of any obligation whatsoever. But the environmental urgency of protecting the Highlands from further depletion of its aquifers, which supply water to 5.4 million people, is equally real.

If the township is not going to indicate a non-binding “intent to opt-in,” then it must file its COAH plan by December 31. This presumes that it has a COAH plan. If so, we’d like to hear about it. We think the town was simply trying to avoid its fair share by filing a law suit, and has been trying to concoct improbable schemes to “meet” its obligations; when it reality it could use the Highlands Preservation Act as a shield against virtually all further development, and turn its attention instead to remediating the ecosystem on which everyone depends. “Suburbia,” as we know it today, is completely unsustainable. We need to reorganize ourselves and our communities around fundamentally different principles, and the Highlands Plan represents one element of this.

The Township Committee, however, seems driven by very short term and short-sighted thinking. It’s not clear that it has a real vision, or that it is at all interested in engaging its citizens in the processes of self-government. Instead, most of the decisions appear to be made behind the scenes, obscurely recorded, and enacted in a haphazard manner. But since there’s not much for our affluent and inattentive residents to care about, the Committee can do pretty much whatever it wants – it can make up its own rules – as long as it does not arouse public opinion. But if public opinion cares at all about both the environment and fairness – which it does – it is at some point going to take notice of the fact that its government is going in the wrong direction, and insist that it change course.

- Jonathan Cloud, December 17, 2008

Here’s some background on the issue, and an invitation to join us for this discussion:

On November 11 the Bernards Township Committee voted to not start a year long review of the merits of “opting in” to the Highlands Regional Master Plan [RMP]. If the committee changes its mind and votes to start the review, the township may at the end of 2009 opt in or not. There will be no obligation either way. But the committee must act before December 31 of this year to start the process.

Bernards has a history of go-it-alone thinking and this decision fits the pattern. Some of us expect that more good will come from participating in the Highlands RMP than not, and that a thorough review should be made. The committee’s decision on November 11 was made on the basis of some questionable assertions of by the township engineer, and without adequate consideration of long term outcomes. [See article in the Bernardsville News on November 20 ]

Julia Somers, Exec Dir of the NJ Highlands Coalition, a non-governmental organization that supports the RMP, will make a presentation at the regular meeting of the Bernards Democratic Municipal Committee on December 17. Please come and learn more about this important subject. Then let the Township Committee know what you want them to do.

Bill Allen, November 30, 2008

We would also like your help in publicizing this event. We believe this issue is of interest to all residents regardless of political persuasion, and we are opening the meeting to everyone. Please help us spread the word, and get a good cross-section of our citizens to attend.

In what has clearly become a pattern of “going it alone,” the TC turned down the offer to “opt in,” even though merely sending a nonbinding “letter of intent” would have given the town an additional year to come up with a viable COAH plan. It did however apply for a $15,000 grant to study the implications of joining.

This led to the following bizarre exchange, as reported in the newspaper:

Committeeman John Malay suggested sending a letter of intent as a way to buy the township time. Committeewoman Mary Pavlini agreed.

But Committeeman Scott Spitzer said he did not wish to send a letter if the committee had no intention of opting in.

“We shouldn’t act on a loophole but on what we think is right, instead of going along with this ruse,” Spitzer said.

Committeewoman Carolyn Kelly agreed. “I just don’t trust everybody,” she said. “Every time we discuss this, we hear different things. I don’t think anything that comes out from COAH or Highlands has any credibility.”

After Carpenter joined Spitzer and Kelly against sending a letter of intent, the committee briefly discussed the fate of the $15,000 grant from the state, which the township has yet to receive.

Carpenter said he wasn’t necessarily in favor of giving the money back. Spitzer joked that it could help fund the litigation against COAH.

This seems to me to make it pretty clear that none of the Committee members are really looking at this with an open mind, from the standpoint of long term benefit to Bernards Township, or even in some cases with any degree of integrity. Since the Committee has seemingly already made up its mind – based on some questionable arguments by Township Engineer Pete Messina – it seems disingenuous to continue to go after the grant.

So Malay and Pavlini were not above sending a clearly misleading letter in order to buy time to avoid dealing with COAH, and Carpenter is not above keeping the money even though he has no intention of honoring the intent of the grant. It may even be, given Spitzer’s wry comment, that one or two of the members are starting to wonder whether suing to avoid the town’s COAH obligations is really worth it.

If the COAH formula is truly flawed, as the town’s lawsuit alleges, then why not go back to the Council with a recommendation for a better one? The idea of trying to settle intergovernmental affairs – especially a dispute over rules designed to bring about a minimum of equity and housing assistance to the needy in each area – through the courts seems, on the face of it, a poor one, and likely to produce the worst possible outcome.

In an adversarial relationship, each side hardens its position and seeks to defeat the other by any possible. Only one side can win. The winning side then risks hubris, while the losing camp loses self-respect and translates this into an enduring resentment, which is readily returned. The TC feels COAH is trying to foist more low-end development on the town; the Council feels that wealthy towns like Bernards are simply irresponsible. And both are at least partly right.

But to reject both the town’s responsibility for more affordable housing (or try to find “technical” ways around it) and the opportunity to join in an environmentally-responsible regional master plan, is indicative of the knee-jerk, head-in-the-sand attitude of our local politicos. Because there is one-party rule, the level of debate never rises much above snide comments and backroom deals. Whether these help or harm the community may not be apparent for a while, but the lack of transparency and of accountability will always produce negative outcomes in the long term.

Jonathan Cloud, November 22, 2008

Postscript: We received a number of comments on this via email, which we’re posting into a single entry following this post. Julia Somers, Executive Director of the NJ Highlands Coalition, has agreed to speak at our meeting on December 17 (6:30 p.m. at the Public Library, 32 South Maple Ave., Basking Ridge) – all are welcome.

What seems clear is that the Township Committee has thus far reacted irrationally, based on faulty information, and we would like to see them reconsider their position.