Following letter was presented to the Township Committee at its meeting on Tuesday, December 23, 2008.

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