February 25, 1998

Testimony of New Jersey Audubon Society to the New Jersey State Planning Commission

When NJ Audubon Society began our campaign to get teeth in the State Plan in April of last year, we were initially joined only by the NJ State Federation of Sportsmen's Clubs, our Petition co-sponsors: today, in less than a year, we have the Petition signed by 10,000 citizens, 23 groups have endorsed it, as have four New Jersey State Legislators.

Just last week I sent out a policy memo to some of my environmental colleagues, and I would like to share most of the closing paragraph from that memo with you today:

... reform movements in this dynamic country of ours would not be the bright candles of life that they have been if the leaders of those movements limited their visions and their political demands to the narrow range of what was thought possible at any given moment in time in the legislative arena. I submit it has been the dynamics outside the political box that drove what happened inside the narrow legislative reality. Just think of what John Kennedy and his administration officials were saying privately about the Civil Rights movement in 1960-62, skillfully portrayed in Taylor Branch's Parting the Waters. But the time to stop sprawl is short. The political window is open wider now than just 3 months ago. Let's talk to the public about what we know works and what we really need, not what the legislature currently will allow. About our vision and the policy substance we need to achieve it.

We say the window is open wider today than when I last testified before you in June because of Governor Whitman's Inauguration address of January 20, 1998, which laid out, in broad terms, the correct vision as outlined by the State Plan, but also because the State's largest newspaper, the Star Ledger, went even further on Sunday January 25, 1998, and said what we suspect you the Commission, dread most to hear, that

... the state needs a stick, some authority similar to the zoning power local officials have to say that some things cannot be built in some places. No stick, no carrot. Besides the developers may not stay off the farms and out of the woodlands if they must endure only a little more red tape to build wherever they want.

Now that sounds remarkably like our People's Petition's call to "Save our Farms and Forests," doesn't it?

But we disagree with part of the Star Ledger editorial, which we are submitting to you today, along with other materials. The Governor is not going to be able to "wave her finger" and have her agencies implement the State Plan, not if we are reading the Court case of the NJ Builders vs. NJDEP and Commissioner Shinn (decided December 10, 1997), correctly. It is very clear to us that what the court says is that the State Plan is a voluntary document and it can't be used as a source of new regulations unless the existing water laws and regulations, for example, inside DEP, already contain the needed authority. Please see our four page analysis dated February 19, 1998, that we have shared with selected Legislators on both sides of the aisle. We think that, in brief, another way to look at this court decision is that the judges correctly recognized the self-limiting, indeed self-crippling language that the State Plan was saddled with as the price of legislative passage in 1992, and as the price of navigating early cross-acceptance, so that this paper tiger can't be converted into a real regulatory "tiger" at all. So much for the hopes of some conservationists who put so much faith in easy agency implementation.

But that leads us to the specifics about what we don't like about the current State Plan and the new RRPP document, all 347 pages of it - the paper tiger. We will not repeat the contents of our Green Gram of October 20, 1997 (Vol. IV, No. 3), which devotes pages 2-5 to a critique of what's wrong with the State Plan and the limitations of the Cross Acceptance process, and which we are formally submitting as part of our testimony today.

Today we want to state our concerns about the shortcomings of the State Plan in a little different way, to talk about the ways in which a bad politics has driven out good planning logic, how the State Plan undermines its own good broad vision, and how the "sieve" it has created in Planning Areas 3, 4 and 5, and even within 1 and 2, means that the number 1 Goal on page 23 of the RRPP - to Revitalize the State's Cities and Towns, is not going to happen, at least not because of the State Plan.

The fundamental flaw in the State Plan as we see it is that it fails to set a protective standard for Planning Areas 4-5, some 1,445,979 acres, based on Table 5 of the RRPP (page 181). After spending so much time to map and expansively lay out the values behind these sensitive planning regions, the Commissions leaves their fate to local governments, which have in turn zoned these lands for suburbia. We shouldn't be surprised at that. The history of environmental protection in New Jersey, especially in land use matters, shows that when we have acted decisively to protect resources, like wetlands, like the Pinelands, and less decisively, in the Meadowlands, it has been the State through the Legislature that has set a protective standard, or authorized another body to do so, having set up clear goals and the authority to set standards. We believe that the State Legislature should authorize the State Planning Commission to protect these Planning Areas with a protective density and/or genuine TDR system. We submit to the public, the press, and you the Commissioners, that five years of waiting for local governments to use the land use powers the Legislature gave them to protect these state wide resources of farmland, forests and other environmentally sensitive lands, like intermittent wetland areas, is ample enough time to document their reluctance to act.

This failure, fundamental to good planning (good planning decisively protects what needs protecting) undermines the very logic of urging development to be concentrated in Centers. What exactly, then, is it, that drives growth to our existing designated centers? Or lures it? Why, in Hunterdon County, for example, worry about existing sewerage infrastructure lines when most builders will use individual septics in projects of between 5-49 units? Or the fact that Hunterdon doesn't even have a designated center?

Let's explore these fatal flaws in a little different area, one physically closer to home today. For years now, I have been reading about the big Merrill Lynch project near Mercer Airport and Route 95 in Hopewell Township, which talks about possibly developing some 3.5 million square feet of commercial or retail office space, including other amenities. Talk is now shifting to making it a true, integrated center, in State Plan terms. The problem is, such a center and huge project would need a 8 mile sewer line to reach the Trenton Plant, which is one of the proposals for treatment. I understand the price tag for the sewer line to the public is between $20-$24 million dollars. But wasn't one of the chief marketing points for the State Plan way back in 1992 the alleged saving to the public of building more compactly in centers, cutting down on infrastructure costs by having shorter lines and roads. Was an eight mile sewerage line what those who sold the Plan then had in mind? Now local and county governments have virtually invited this massive proposal, so we can't blame Merrill Lynch. But aside from proximity to the airport and Route 95, this area, which has been called Planning Area 1, seems to the eye more like Planning Area 3, or even 4, and it was certainly closer to those designations way back in the 1980's when it was designated Planning Area 1. But Mercer County has pushed Planning Area 1 all the way out to Rosedale Park, according to the map of 1992 I am looking at, and taken Planning Area 2 out to Assunpink Wildlife Management Area. Now we know that these lines were drawn based on future sewer service areas, so that they are slated for growth, but let's look at some numbers and their implications for our older urban areas.

When we go to table 5, we look at the totals for acres in Planning Areas 1,2 and 3 and subtract out water, wetlands and developed land, and we get almost 500,000 acres yet to be developed. Now we look at what's happening in Hopewell, and at this expansive mapping of Planning Areas 1-2 in Mercer County into areas that should have been designated Planning Areas 3 or 4 and we ask: how is Trenton going to ever compete when we make it so easy to invite growth into the suburbs, and designate farmland as future suburbs? Does not this suburban and rural welcome mat undermine the very number 1 State Goal in the new RRPP? We think it clearly does and the proof is the scale of what is proposed in Hopwell and the fact that Trenton has nearly 1,000,000 square feet of existing, unutilized commercial office space. This isn't a Plan, it's a sieve that leads to more sprawl, on that point we agree with Assemblywoman Connie Meyers, but not with her point about Mt. Laurel and COAH. There is no way that a case can be made that Hopewell needs this growth more than the city of Trenton, or that we in any way contain suburban sprawl by putting 3.5 million sq. ft. of building in Hopewell, no matter what the State Plan designation or the attempts to tidy it up after the fact by spinning it into a center.

This is a example of the way the State Plan can undermine its own good values. But this is not the only place where what is happening on the ground violates the goals of the State Plan. Take a look at the loss of farmland in Pohatcong and Greenwich Townships in Warren County along old Route 22: the big box stores are going in, and the suburbs sprawling, but it's not happening inside Phillipsburg, where these retail establishments belong. Of course, the suburban way was paved much earlier with sewer area plans and all the proper State Plan designations. But the city is not getting the growth, and the farmland is being lost. Soon Pohatcong Township will be where the City meets the suburbs, not the country, as the town welcome sign currently proclaims. And there is a big taxpayer bill in the works to get the jug-handles on Rt. 22 near County Rt. 519 to manage the traffic nightmares. We could cite more examples of migrating development along 31, and the fact that all the municipalities along 78 in Warren and Hunterdon are clamoring for their share of office parks and the infrastructure to go with them. Where is there a coherent State Plan policy to limit the expansion of this kind of highway corridor sprawl?

We want to conclude our verbal testimony today by talking directly about the gap between how the public feels and where you, the State Planning Commissioners are today on the ideas we have just presented and that are in our Petition, especially the power to set a density standard to protect Planning Areas 4-5. So we brought along the Eagleton Poll from 1992, Commissioned by the Center for the Analysis of Public Issues. We don't hear many people talk about this poll today, and we wonder why, but we also wonder why it was, in light of the poll results, that the State Plan supporters of 1992 didn't think they could or should ask for something with teeth, with standards and conformance/consistency criteria and procedures. We note that 67% of respondents to one question (#8) felt that it was better to regulate the use of land in private ownership versus 29% who wanted to buy it; 78% felt the state should play an active role in coordinating and managing growth versus only 19% who felt not (question 10); in the next question, 84% felt controls and standards for growth and development ought to be very strict or somewhat strict versus only 16% in three weaker categories of regulation, and finally, 61% of citizens polled were willing to give up some home rule "in return for more planned and coordinated overall growth." (#13) We submit that the answers to these questions in 1992 are far closer to the positions we take in our Petition than they are to the policy positions in the current and RRPP version of the Plan.

We believe that the obstacles to setting tough density standards in Planning Areas 4-5 are mostly political, and not legal. We even have some of our legal case made for us, on state constitutional grounds, in, of all places, the technical Appendices for Chapter V of the Land Use, Infrastructure and the Environment report (aka as LUIE) pages 8-9, where the legal basis for preserving farmland is made; since the constitutional basis is the Farmland Assessment Act of 1964, we hope the authors of this chapter of LUIE realize that they have also laid the constitutional basis for regulating the 400,000 woodland acres receiving Farmland Assessment tax breaks, a good portion of which is in Planning Area 5, and area that they didn't feel had a very good legal basis. But independent of this basis in LUIE, we think the Gardner Case in 1991 as well as many court cases from around the country have upheld the right to use low density agricultural zoning to protect farmland from real estate development. We have been stating publicly for some time now that 50% of more of all land (some 1,200,000 acres) receiving Farmland Assessment property tax breaks of 90% or more are owned by the real estate industry or land speculators, and that the percentage of this 1,200,000 acres committed to development when land "options" are included may actually drive the percentage higher. We recently learned that the annual cost to the citizens of New Jersey - the annual value of this tax break, may exceed $2 billion dollars a year! That's right, that's more in one year than all the money spend for all the Green Acres Bond Acts since 1961. Remember when your parents advised you never to rent a home when you could buy - because when you rented you weren't gaining any equity for your money? Well, we think the same reasoning applies here. It is a very good beginning basis, but not the only reason why we have a legal and moral right to ask you and the Legislature to set a protective standard to protect these lands that we have been subsidizing for more than 30 years. With 500,000 acres of developable land available in Planning Areas 1,2 and 3, and given these facts of Farmland Assessment, is there any reason why the lands in Planning Area 4-5 should be zoned for suburbia at an average density of 1 unit per three acres, and future Centers allowed in unlimited numbers? That is what needs changing, and that should have been the focus of discussion over the last 18 months, a discussion that never has taken place.

William R. Neil
Director of Conservation
New Jersey Audubon Society