Planning — December 2007

Taking a Bite Out of Home Rule

New Jersey's state plan gets some teeth.

By Charles H. Harrison

"It's extremely difficult, if not impossible, to implement [New Jersey's Development and Redevelopment Plan] in a home rule state like New Jersey," said Joanne Harkins, AICP, director of land use and planning for the New Jersey Builders Association, in an interview two years ago. Apparently, she hadn't noticed that the once-toothless state plan was beginning to grow incisors.

Harkins could be excused for not being aware of the change. It has moved at a slower pace than traffic on the roads leading to the Jersey shore on a Friday night in summer. Until a few years ago, state law encouraged — but did not require — municipalities to update their master plans and zoning maps and to envision future development in concert with neighboring municipalities. However, after the state Department of Community Affairs issued a state map in 2004, the requirements got tougher. Municipalities must now update their master plan every six years, and regional planning is becoming more of a reality.

It's in the DNA

The culture of home rule that Joanne Harkins and others have noted has, in fact, influenced land development in New Jersey ever since the British took over from the Dutch in the 17th century and named the colony after the Isle of Jersey.

New Jersey is the 46th smallest state in the union but the most densely populated. Its population lives in 566 municipalities covering 7,468 square miles: one municipality for every 13 square miles. By contrast, Connecticut, which is smaller in size (4,872 square miles), has one municipality for every 27 square miles.

Each of those 566 municipalities — nearly all have their own governing body and planning board — could devise a master plan and develop its land area pretty much on its own and without interference or guidance from officialdom either in the state capital or the county seat.

The state map changed all that. It divides the state's land mass into seven planning areas: metropolitan, suburban, fringe, rural, rural/environmentally sensitive, environmentally sensitive, and environmentally sensitive/barrier islands. The designations are determined, in part, by a process called cross-acceptance.  

The cross-acceptance process responsible for changes in the state plan and map is scheduled over a three-year period, during which municipal and county planning boards schedule public hearings on future plans for land use, revise those plans based on public input and reevaluation, and then submit their plans to appropriate state agencies for review. State agencies may then recommend changes to the state plan and map, including revisions in the designated planning areas. Their changes are subject to appeal from counties and municipalities.

The first round of cross-acceptance took place from 1992 to 1997 and the second round from 1997 to 2000. The third period, just now winding down, began in 2003.

The state map is one of the incisors in the state plan. If, for example, as part of the cross-acceptance process, a planning area is redesignated from one where development is allowed and encouraged to an area that is deemed environmentally sensitive, local plans for that area are then subject to review by and appeal to appropriate state agencies. Four Delaware River towns in rural Salem County are a case in point.

Test cases

The municipalities hug the Delaware River north of the Delaware Memorial Bridge. Before the latest round of cross-acceptance, most of the land along the river was designated planning areas one and two: metropolitan and suburban planning. Last summer, the state advised the municipalities that the land, about 11,000 acres, had been redesignated area five: rural/environmentally sensitive.

Many owners of those acres were dismayed, particularly farmers who had predicated their retirement income on the future sale of their farms for development. County planners also were upset because they had targeted much of that strip along the river for commercial development.

In July, local and county officials and members of the county chamber of commerce met with Rick Brown of the state Office of Smart Growth and William Purdie, AICP, of the State Department of Environmental Protection. "We knew people would come to us to correct us," Brown was quoted as saying in an area newspaper. He explained that the change of designation was determined after state officials consulted materials that included an old aerial map that did not show existing sewer and water systems.

Brown admitted they had not fully considered how the land was being used at present, who owns it, and what development projects for the area might be in the works. "We know errors can be [made]," Brown was quoted as saying. "We knew we were going to have to sit down and go through it."

At the end of the meeting, Brown and Purdie agreed that the state would ultimately make some accommodation, although he didn't specify what it would be. "We think this give and take process is really working," Brown said. Observers say the most likely scenario is that the state will allow the original land-use designations to continue.

Carrots and sticks

Brown talked give and take; others at the state and local levels refer to the state's new stance as a kind of carrots and sticks approach. Another more formal name for the process is plan endorsement. The Office of Smart Growth defines plan endorsement as "a voluntary review process that is designed to assist government agencies at all levels to develop and implement plans that will achieve the goals, policies and strategies of the State Plan."

The carrots include some state financial assistance for municipalities and counties that have state-endorsed plans, plus technical assistance from the state throughout the endorsement process.

Benjamin L. Spinelli — now the executive director of the Office of Smart Growth — experienced most of the successes and failures attendant to municipal and regional planning when he was mayor of Chester Township in Morris County, from 1998 to 2007. He says the real benefit of plan endorsement is that it "unifies the state agencies that typically must [sign off] on local and regional plans. It benefits the municipality because now it can get one consistent answer from the state."

Instead of a municipality having to run its plan by various state agencies one at a time, thereby stretching out approvals or rejections over such a long period that the local planners may give up on the plan altogether, the OSG brings all the players to one table, thereby streamlining the process as much as any bureaucratic undertaking can be streamlined.

The sticks include myriad requirements imposed by various state agencies. Robert Melvin, AICP, a partner in Melvin-Kernan Development Strategies in Woodbury, New Jersey, who works with a number of municipalities, believes the state lately has assumed the planning oversight duties that are traditionally carried out by county agencies in other states.

"It looks like we have now bypassed the counties, and the state is the conductor trying to make everyone play the same tune. The state has slowly been putting the tools — the sticks — together whereby it can become a bigger player," Melvin says.

Melvin has been the primary planner for two of seven municipalities the state has designated as demonstration sites that will control growth primarily through transfer of development rights. The state has provided financial support to these communities, and their subsequent TDR plans must go through the state's plan endorsement process.

"What the state determines is whether a TDR plan is consistent with the state plan and state map," says Melvin, "but our firm believes that more and more municipalities, particularly in rural areas, over time, are going to be required to go through plan endorsement, not just those with TDR plans. The state is tying endorsement to more and more projects. While it's in slow motion, I'm not surprised at the direction in which the state is moving."

Two that tango

Development plans that involve more than one municipality require state endorsement. Two municipalities that must now seek endorsement are the Borough of Woodstown and Pilesgrove Township in the heart of Salem County. Woodstown is the 1.6-square-mile hole in the 35-square-mile donut that is Pilesgrove. Woodstown is designated a town center on the state map; Pilesgrove consists primarily of farmland, some of it preserved against development.

Officials of these communities meet monthly. They established a Joint Environmental Commission in 2003 to oversee protection of shared natural resources, and both communities are currently obliged to meet standards set by the state Council on Affordable Housing, which implements New Jersey Supreme Court Mount Laurel decisions requiring municipalities to provide affordable housing as a proportion of total residential development.

Despite these commitments and a genuine desire to cooperate, the two municipalities still struggle to balance their respective development decisions. Last spring, Leah Furey, AICP, Woodstown's planner and a member of the firm Bach Associates, invited a number of interested citizens to join borough officials at a visioning session that would help the borough prepare for state endorsement of future plans. "Recognizing the natural and functional interconnectedness of Woodstown and Pilesgrove," Furey stated in her invitation, "and in light of our mutual goals, we need to coordinate our efforts with Pilesgrove."

Out of that session came a vision for an open space buffer separating the two communities. However, much of the potential greenway would be made up of Pilesgrove land, and township planners have their own plans for some of that land. Woodstown Mayor Richard Pfeffer says that some of those involved may have trouble seeing beyond what he calls the "home rule culture" that still affects — or infects — municipal planning in New Jersey. "We like to decide our own destiny, so to change that culture, which is beyond our memory, takes time, a lot of time, and it's an educational experience for us," he says.

Before that collaborative session, Furey said that whatever came out of the meeting would have to be "fine-tuned and harmonized with Pilesgrove's vision." Speaking several months after the session, she said municipalities are still learning how to overcome their home rule culture. Woodstown and Pilesgrove children attend the same schools, and fire and ambulance services are shared. Even so, says Furey, they, like most other municipalities in the state, have a self-protective attitude.

Benjamin Spinelli says that "too many towns thought that zoning was the beginning and the end of their ability to plan." For example, he adds, "rural communities in particular believed that gross lot zoning — downsizing — was the only tool at their disposal for managing the number of homes to be built. But builders' desires and home buyers' desires have evolved to the point where large-lot zoning is no longer an impediment to development but almost an accelerant to development. Those towns thought they could relax; they didn't understand that [their zoning] was a recipe for sprawl. Whether it was two-acre lots or five-acre lots, it was still sprawl."

The enforcer

At this point, says Spinelli, the state is trying to show municipalities, particularly rural communities like Pilesgrove Township that still have a great deal of open space and farmland, how to manage what happens to their land. "It's a tough sell getting that message across sometimes," he says. "Rural communities fear density, so when you start talking about TDR and center-based development, they get scared."

What's ironic, Spinelli says, is that communities such as Woodstown always had old-fashioned downtowns. "For 250 years, New Jersey has had center-based development, and [no one] needed a state plan or state map to tell them so. Rural areas of the state are covered with little villages and hamlets. Where two major roads crossed you would have a gathering of 20 or 25 homes, a general store, a church and a post office. And that, really, is the traditional character of development, not McMansion sprawl."

Woodstown and Pilesgrove may be good candidates for a TDR plan that would continue to concentrate development downtown while preserving outlying land, says Spinelli, and their planning doesn't have to start from scratch.

There are examples of donuts and holes throughout the state, including over the county line in Woolwich Township, Gloucester County. The borough of Swedesboro is surrounded by Woolwich Township. The TDR plan developed for Woolwich by Robert Melvin and scheduled for state approval by the end of the year — another demonstration project — is calculated to save about 4,000 acres of farmland in the sending zone. The receiving zone is situated primarily along old U.S. Route 322 west of the New Jersey Turnpike and just north of Swedesboro.

Woodstown and Pilesgrove have a common planning destiny whether they know it or not, says Spinelli, and that point will be driven home when they start to satisfy state requirements for affordable housing. "They both will need plan endorsement for their affordable housing," he says, "and if we tell them we're not going to take them through [the endorsement process] individually, they may not like it, but we're going to force them to talk to each other."

If Beth Timberman has her way, Woodstown and Pilesgrove may end up talking not just to each other but also to all of the other 14 municipalities in Salem County. Timberman is a Salem County freeholder and a resident of Woodstown. The county is governed by a Board of Chosen Freeholders, a body that has its roots planted in the 17th century.

Echoing Melvin's view that the state has bypassed New Jersey's 21 counties, Timberman says, "There's home rule and then there's state rule, and [counties] are in between. I want to see the home rule culture go by the wayside. Take down the borders between municipalities in the county. Home rule is just too burdensome. We can't do it anymore."

According to Timberman, the state, which for so long allowed municipalities to ignore the state plan, will soon impose so many new restrictions that developers will get discouraged and leave the region altogether. "Developers will say, 'we can't jump through these hoops; we can't pay these fees and fines. It just doesn't pay us to [come here],'" she says.

She envisions the 16 municipalities of Salem County, representing a population of approximately 64,000, participating in some form of countywide plan, perhaps including TDR. Under such a system, housing might be organized into more than one receiving district and much of the commercial and industrial development would be located in the corridor along the Delaware River, the same corridor that is now in negotiation with the state.

Timberman has the backing of the American Littoral Society, a nonprofit in Highlands, New Jersey, that focuses on coastal issues. The society's director for New Jersey, Tim Dillingham, helped draft the state's Transfer of Development Rights Act. Both Timberman and the society realize that a countywide TDR plan — one that doesn't create a new county bureaucracy or inflate the county's property tax burden — is going to be a hard sell to municipalities and to potential financial backers, including the state.

However, Timberman wants nothing less than for Salem County to become a demonstration site for countywide planning in New Jersey. As 2007 drew to a close, she and the American Littoral Society were putting together a proposal for consideration by state. The message: "Come on down, and bring money."

Charles Harrison is a New Jersey-based writer.

Resources

Images: Top — In New Jersey, the Borough of Woodstown, is negotiating with surrounding Pilesgrove Township to set up an open space buffer between them. Photo David Williams. Bottom — Fringe development in rural Pilesgrove Township, which may seek state endorsement for a plan it would share with the adjacent Borough of Woodstown. Photo Leah Furey.

On the web: New Jersey State Plan: www.nj.gov/dca/osg

American Littoral Society: www.littoralsociety.org