MINUTES OF THE TOWNSHIP OF MENDHAM PLANNING BOARD

REGULAR MEETING HELD JANUARY 16, 2008

Chairman Giordano called the meeting to order at 7:36 p.m. and asked for roll call.  Upon roll call: 

ROLL CALL 

PRESENT:                  Mr. Tolley, Mayor Florek, Mr. Krieg, Mr. Pierson, Mrs. Link, Mr. Mountain, Mr. Johnson, Chairman Giordano

ABSENT:                     Mr. D’Emidio

Others present:           Tom Lemanowicz, P.E., John Aubin, Environmentalist, Ed Buzak, Esq., Duggan Kimball, P.P.

Chairman Giordano led the flag salute and announced that adequate notice of the meeting had been given. 

MINUTES

Motion to accept the minutes of the December 3, 2007 Workshop Meeting, the January 2, 2008 Reorganization Meeting and the January 2, 2008 Workshop Meeting was made by Mrs. Link, seconded by Mr. Johnson with a minor revision.  All eligible to vote agreed.  

Motion carried. 

DISCUSSION ITEMS

Highlands Master Plan

Mr. Kimball began the discussion with a background of past activity regarding the Highlands Master Plan.  He said that the Master Plan Committee drafted a letter for Township Committee signature to be sent to the Highlands Council in April 2007.  The letter’s focus was the Committee’s numerous objections to the original Master Plan draft.  One of the main objections was the inaccuracy of the mapping.  Another point expressed in the letter was that Mendham Township shared the environmental protection goals of the Highlands plan and, in fact, was achieving those goals according to the Township’s own standards rather than through the kind of mechanisms that were suggested in the original Highlands plan.  It was pointed out that there would be under the Township’s new plan very little additional development.

Another objection expressed was that the original draft of the Highlands plan did not give a clear sense of the practical impacts on citizens, property owners and the municipality and what regulations would flow from this Highland ’s Master Plan.  It was clear that the goals were set very high but when translated into practical regulations, the shape of those regulations and their impact had not been identified.  The Mendham Township Master Plan Committee felt that there needed to be more of an analysis of the practical impact.

Mr. Kimball continued to say that the new Highlands Master Plan is much larger.  The Highlands Council first addressed the inaccuracy of the mapping.  A group was hired to recreate the mapping, and the new mapping claims to be supposedly much more sophisticated and accurate.  He went on to say, however, that very little has actually changed in the mapping, not only in Mendham Township but also in most of the other municipalities. The original 51 indicators in the mapping have now been reduced to 21 indicators.  He explained that many of the previous 51 indicators have actually been combined and folded into the current 21 indicators.  In terms of the three primary zones, which are called the planned community zone, the protection zone, and the conservation zone, a revision was made to the planned community zone in the new plan.  The planned community zone is now called the existing community zone.  Three sub zones were added, which are called the lake community zone, conservation constrained zone, which are particularly environmentally sensitive parts of the conservation zone and the existing community constrained zone, which is also particularly sensitive. He added that the new plan, while not including any specifics about what the regulations will say, does now indicate specific environmental targets such as a nitrate target number and water usage target numbers.  These target numbers will be utilized when regulations are drafted.  Since the plan is very voluminous, to explain even in general terms these targets is an undertaking.  Yet that pales in comparison to the task of writing detailed regulations to implement the targets. There will be a need for many new specialty fields in order to administer what the plan is indicating.

Mr. Pierson added that some clarity is added when seeing the maps on a larger scale.  The County Planning and Development Department has taken the maps that Highland Council has put together and has created three overlays on the basic map as opposed to just having the one map, which could be overwhelming and confusing.  It offers a little more knowledge of exactly where the lines go since the lines are critical.  He recommended that obtaining these larger maps would be worthwhile since the county did a commendable job in creating the overlays.

Mr. Tolley pointed out that on the current map it appears that there are inaccuracies.  It seems that what appears as the conservation zone is now actually large homes on large pieces of real estate.  This indicates that the information the Highlands Council has is not nearly up-to-date.  Mr. Pierson agreed with this and said that the Council did admit that they are 3 or 4 years behind in what should be accurate on the map. 

There was some discussion regarding the target numbers in the new plan and how these target numbers were formulated.  Mr. Kimball said that the target numbers are much more specific on environmental factors and will presumably be the numbers that their regulations will be designed upon. 

Chairman Giordano questioned whether there have been any challenges to the new plan.  Mr. Kimball pointed out that there usually are not challenges to master plans because it isn’t the master plans that actually effect people.  The master plans set the groundwork for the regulations, and it’s the regulations that create the impact on people.  Mr. Buzak added that he suspects that the challenges will come, though they are not here yet, and that the challenges, thus far, to the Highlands Act itself have not been successful; however, this does not mean it will not ultimately be successful.  He knows of several challenges that are winding there way to the courts.

There was further discussion regarding the zones and sub zones.  Mr. Tolley indicated that it was his understanding that the sub zones are ways to further constrain zone areas.  Mr. Kimball explained that two of the three sub zones are ways to have more constraints.  The lake community sub zone is quite the opposite.  The intention here is to recognize that most of the large lakes are already developed.

Mr. Kimball went on to say that Mendham Township is not in the preservation area but is in the planning area.  The entire Highlands region has been divided into two areas.  When the Highlands Master Plan and regulations become effective, the communities that lie in the preservation area will be mandated by the state to comply.  It is optional for the communities that lie in the planned area.  He went on to say that the existing community zone, which used to be the planned community zone, is recognition of the fact that those areas have been substantially developed and that the mapping is intended to reflect those facts.  Also, however, it recognizes that some additional development may be appropriate in the existing community zone, whereas in the protection area, if there is any development, it is very, very limited.  One major point in the plan is the TDR concept – the transfer development rights.  The Highlands Council is going to set up a bank of credits whereby any development potential can be bought up from the protection zone and be applied in the existing community zone.  

Mrs. Link said that she attended a presentation on the Highlands Master Plan.  Mrs. Swan, the director of the Highlands Council, made two points.  First, that in the existing community zone, further development is not anticipated.  Also, in respect to the TDR, municipalities are not obligated to do this.

Mr. Kimball went on to say that the DEP has already been active in implementing their own regulations in the Highlands Preservation area, which has been independent of the Highlands Council.  It is ostensibly acting to implement the Highlands Act before the Highlands Master Plan has been adopted.

Mr. Aubin explained that a good example of this is the flood hazard control area regulations where the DEP has gone beyond the scope of the Flood Hazard Control Act.  All the water features are being regulated, and in Mendham Township that means strict limitations on a width on either side of any water feature in town.  Mr. Kimball said that another regulation being imposed on the Preservation zone is that 25 acres is a minimum amount of acreage for a single- family residence in any new subdivision.

Mrs. Link asked Mr. Aubin how the flood hazard regulations compare to the special water resource protection area.  Mr. Aubin explained that the special water resource protection area only applies to Category 1 streams and only streams that appear on the USGS map or on the soil survey map and in the major developments.  In the flood hazard control area regulations, it applies to any water feature.  In this area, it is applied to Category 1 streams and all trout related streams so it is much broader in its application.  It overlaps the wetlands regulations.  If a stream is not connected to a downstream water source, it does not apply.  If it drains and connects to anything, it does apply.  It can also apply to an erosion gully.

Mr. Johnson asked if the revised Master Plan was being presented for serious discussion or was it effectively final and was told by the experts that the rules as now promulgated are essentially final.  Mr. Kimball continued to say that there is a comment period at which time the Highlands Council will presumably adopt the Master Plan.  When the Master Plan is adopted, the next phase will be the drafting of the regulations.  The towns that are in the Planning area will have a choice.  They can adopt the Highlands Master Plan or retain overall control and adopt the regulations themselves in their own master plan and development regulations.  In Mendham Township it is an option for the town to decide. 

He continued to discuss the draft rules in the original Master Plan that were overturned by the courts with regards to the requirement that as part of acquiring certification, the municipalities needed to obtain plan endorsement from the state planning commission.  Part of what is still being worked out now is how the Highlands Plan is going to be folded into the state plan.  The implication was that at some point down the line with the COAH requirement, the municipalities would have to bring their plan into conformance with the Highlands Plan.  This concern has greatly diminished since this rule was eliminated as it related to COAH.

Mrs. Link added that at the Highlands Council meeting she attended the previous evening, 3 or 4 towns were inquiring about the legal shield which the Highlands plan proffers as a benefit of opting in to the plan.  Several of the other towns that also have COAH obligations, like Mendham, were wondering that if they did opt into the preservation area, would they be protected from COAH.  Mrs. Link went on to say that Mrs. Swan felt that the Highlands Council would work with a community to change their obligation with COAH, if the community did opt in.  She didn’t say outright how much success they would have, however.   Another question that was raised was that if a town sends in the new housing element conforming to their COAH obligation, could it be modified if they end up conforming to the plan.  Mrs. Swan believed they could.

Mr. Buzak added that Mr. Mountain’s comment was very valid whereby if the town decided to ignore the COAH certification requirement, opt in and be subject to a builder’s remedy lawsuit, the suit is originating from a non-government agency, and the state agency would be in your corner.   The question is whether the legal shield would apply.

There was some discussion amongst the Board members regarding the Mendham Township COAH obligation. 

It was discussed that February 28^th is the deadline to respond to the Highlands Council.  A recommendation would need to be sent to the Township Committee to take action.

Mr. Kimball explained that one of the main points that was emphasized in this letter and should continue to be emphasized is that Mendham Township shares the goals of the Master Plan and for all practical purposes, our new plan is going to get as close to achieving the goals that are shared with the Regional Master Plan as is practically possible.  What should be permitted as part of the process is to allow towns that can demonstrate that they are achieving the same goals to certify those plans as compliant.

Mr. Aubin added that from a practical application point of view the Highlands is moving in a direction to set standards that are unattainable.  Mr. Kimball reiterated that the Master Plan will create a mountain of regulation.

The Board agreed that Mr. Kimball should revise the prior letter of recommendation to the Township Committee in line with both these discussions and Mr. Aubin’s recommendations to be presented to the Planning Board at its next meeting on February 4, 2008. The letter should be available to the Township Committee at its February 11, 2008 meeting so it can be sent out to the Highlands Council by the February 28^th deadline.

Mr. Mountain said the he would obtain from the County Planning and Development Department the county maps with overlays.

Chairman Giordano stated that also at the February 4, 2008 Planning Board Workshop meeting the draft amendment to the zoning regulations of the Land Use element of the Master Plan relative to Sisters of St. John the Baptist Township would be discussed.  Also, a public hearing on the adoption of the amendment would need to be scheduled, which would be February 20, 2008.  Ten days notice to the public in the newspaper is required.

Motion was made to open the meeting to the public and seconded.  All agreed.  Motion was made to close the meeting to the public and seconded.  All agreed.

Motion carried.

Motion to adjourn the meeting was duly made by Mr. Tolley and seconded at 8:52 pm.

                                                                                    Respectfully submitted,

                                                                                    Beth Foley

                                                                                    Board Secretary