April 23, 1998

TO: Conservationists, activists, citizens who don't believe their local governments are responsive, who don't believe the State Plan is working .

FROM: Bill Neil, Director of Conservation, NJ Audubon Society

RE: Outline of "Build-out" Legislation

Introduction: I have been invited by the staff of several Legislators to draft an outline of build-out Legislation. That outline follows below. I got started on this idea after learning that little Hopewell Township (Mercer County) was planning on allowing 11 million square ft. of commercial office space near the Mercer County Airport and Rt. 95. They called the site(s) planning area 1; a visit shows it should be PA-4 or 4B. The public is being asked to pay for a $24 million dollar sewer line extension to the Trenton Sewerage Treatment Plant. Trenton is not getting any of the commercial rateables. So this is our State Plan. We are calling for a level III review at DEP to slow the process down. When I called Mercer County Planning Department to see how much more office space is allowed in the 95-31 Corridors, they said they had no idea, it was up to the municipalities. You get the idea. Here's the remedy. This can fly. We will get Legislative support for this, and citizens will respond. Since the bill has only been outlined, but not drafted, call me with your ideas and thoughts. We think all groups should be able to support this, and the figures on what's buildable are going to raise a lot of eyebrows. For example, Washington Twp. (also Mercer County) is zoned for 28 million sq. feet of commercial buildings - all outside of their newly approved Center on Route 33 (thanks to our State Planning Commission, no dissenting vote on 04-22-98). To put this in perspective, the twin towers of the World Trade Center in lower Manhattan come to 10 million sq. ft. So in just two townships of Mercer County we have some 39 million sq. ft. of commercial buildings allowed, equal to almost 4 World Trade Centers. And we don't have the figures on what the rest of the zoning in Hopewell will allow. Is this any way to control suburban sprawl?

Proposed Titles:

"CITIZENS' DEVELOPMENT RIGHT TO KNOW ACT"

OR "THE DEVELOPMENT FULL DISCLOSURE ACT"

I. Municipal obligations.

Municipalities shall be required to conduct a build-out analysis to determine the overall (gross) number of residential units and square footage of office space (of all types) buildable under their current zoning. They shall be required to outline their methodology and assumptions so that citizens can follow their calculations. This should be completed within one year of the passage of the Legislation. This will require amendments to the State MLUL law, somewhere in the neighborhood of 40:55-28-36. Another possibility is with the State Planning Act.

Municipalities may, if they wish, qualify these overall figures by performing refining calculations to subtract permanently preserved parkland or farmland preservation program properties, wetlands and stream encroachment protected areas, steep slopes and all other legally constrained areas that have been included in the gross build-out calculations. The methodology and assumptions for these calculations should be clearly stated and the calculations shown and maintained for public examination. We can call this the voluntary "net buildable" calculation process. In most jurisdictions, it would probably reduce the gross figures by 5%-20%, depending on the terrain.*

Urban municipalities shall, in addition to listing these residential and commercial figures, list existing vacant commercial office space of all types.

The results of what are buildable from both the gross build out and, if they chose to perform the net, the net too, shall be published annually in or with the property tax bill mailed to all municipal residents. The heading shall clearly state and cite the law which called forth these figures and shall clearly state the results in total dwelling units for residential development and total square footage for commercial. These figures and the calculations and methodology shall also be turned over to the county planning departments. The calculations don't have to be repeated each year unless the trigger is hit: the trigger requiring new calculations and new summary figures shall be an individual or cumulative change in any mun. zoning district's size of 5% or more. This allows minor changes each year to occur without having to rework the numbers.

The municipality shall make available their summaries, as above, and calculations and methodology in a buildout report available by phone, mail or in-person request at the mun. and planning bd. office and the mun. library and county library, as well as the county planning office.

A. The counties shall compile and publish the summaries of their constituent municipalities build-out reports annually in a local newspaper of record on January 1st; and shall make them available at the County Planning Boards, libraries and municipal planning bd. offices

B. In addition to the above, Counties shall also compile the commercial office space buildable in highway corridor reports, for the following corridors: 15, 23, 202, 206, 80, 78, 22, 10, 24, 287, 31, 46, 57, 295, 95, 130, 1, 195, 33, 9, 18, 35, 36, 30, 40, 49, 73, 70, 72, 77, 55, 47, The Garden State Parkway, NJ Turnpike. These reports shall use the same form as the mun. reports, and shall list the total commercial sq. footage buildable in each corridor for each mun. individually, as well as a summary total for the entire county highway corridor. The highway corridor area shall be defined as a minimum 1 mile on each side of the highway. Counties may extend the zone up to 2 miles where they feel the construction is legitimately part of that corridor. Where highway corridors overlap, the reports shall indicate how much square footage included in both corridors was overlap. Where the County contains an urban area on the Urban aid-distressed list, the urban figures (buildable and existing available) shall be included along with these corridor figures.

C. Counties shall also be responsible for maintaining and making available, quarterly, a land development index, which shall be a record of development proposals and applications, and construction in progress for all residential and commercial projects of at least 10 lots residential and 15,000 sq. ft. commercial as well as a quarterly cumulative total of all individual residential lots and those other subdivisions under the threshold trigger. Except for the cumulative figures for the residential units under the threshold trigger, the index shall contain the following information for all residential and commercial projects: Municipality, Project name, a file number, Block and lot number, type of use, # of lots/units, Sq. ft. (for commercial), and status. The use and status shall follow the reporting conventions used by the Hunterdon County Land Development Map/Index as of 1997.

III. Public Disclosure of Options held on Farmland Assessment Act Lands

Owners of lands receiving the tax breaks under the Farmland Assessment Act of 1964 (P.L. 1964, c.48 (C.54:4-23.1) shall be required to disclose the existence (and holders?) of options on Farmland Assessed land on their applications (see Sec. 54:4-23.3(c); the municipalities will then be required to disclose which lands under their jurisdiction that receive the farmland tax break are also under land options and report it to their tax payers at the same time they mail out the property tax bills. So in addition to the build out summary report, taxpayers will know which lands they are subsidizing are headed for development.

We believe this requirement, which does not disclose the financial terms of the option or alter the tax break itself, can be done by this legislation and regulatory action by the Treasury (and Dept. of Ag.?), and does not require a constitutional authorization. We believe the private world of options for development run counter to the public purposes of the 1964 Farmland Assessment Act and make a mockery of sound planning.

We leave the type of penalty for failure to comply with Part I,II and III open; it should be the loss of some significant funding distributed by the State to counties and local gov'ts. There is a logical penalty available for the owners of farmland assessed land who fail to disclose options on their farmland assessment applications: they should have to pay a rollback tax of between 5-10 years, starting from the date the option is discovered (as it often is in development applications and municipal hearings). Changes made at Sec. 54:4-23.8.

We assume counties and municipalities will cry "State Mandates, State Pays," but we would argue that what we require as shall's in the bill are clearly things municipalities should be doing now as a matter of objective responsibility - fiscal, physical and dare we say it, moral, as well as common sense planning. The gross build-out should require some time, not a lot, but not new staff. The highway corridor figures should be available from basic planning maps, the chief cost may just be printing and distributing the data and reports. A guess would be $250,000 for those purposes, maybe less. From what we've learned through discussions, the major expenses would be justified from the level of detail necessary to do the net build-out, not the gross, which is why we left the net voluntary.

* There is apparently a legal case (Manalapan?) that prevents local governments from subtracting out wetland areas from what is buildable in someone's parcel. In other words, the gross buildable number of units is still based on the density allowed in the zoning district and the size of the parcel; if they can't be put on wetlands then they get squeezed in on the buildable uplands. If that is actually the law then it strengthens our strategy here of focusing on the gross build-out figures. But I get conflicting reads on this depending on whom I'm asking. Clarifications, anyone?