SAULEWINGAttorneys at Law

A Delawace LLP

Henry L. Kent-Smith

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Phone (609) 452-3151

Fax: (609) 514-3743

hkent-smith@saul.com

www.saul.com

March 19,2007

VIA FEDERAL EXPRESS

New Jersey Highlands Council100 North Road

Chester, NJ 07930

Re: SJM Communities/ Clinton TownshipComments on Highlands Master Plan: Executive SummaryII B-1 Land Use Capability Map; II B-2 Smart Growth;II D-2 Housing; III D-l Smart Growth; and111-2 Housing and Community Planning

To the Highlands Council:

Please accept this letter as the comments of SJM Communities, LLC, the contractpurchaser of property designated as Block 82, Lots 4 and 4.03 in the Township of Clinton,Hunterdon County (the "SJM Property"). SJM previously submitted comments to the HighlandsCouncil on January 16,2007. This letter supplements the comments set forth in the January 16,2007 letter. The SJM Communities' comments relate to the proposed designation of the SJMProperty as the "Conservation Zone" under the Draft Master Plan, although the Property islocated in the Highlands Planning Area.

The SJM property is approximately 138 acres located on the west side of Route 31,immediately south of Regional Road and North Hunterdon Regional High School. I haveattached a copy of the Highlands Quad map, showing the property in question and thesurrounding land uses. I am also attaching the NJDEP I Map of the property, showing that theSJM Property is located in the Wastewater Management Plan Sewer Service Area for the Townof Clinton MUA. SJM Communities is the contract purchaser of 56,000 gallons per day ofsanitary sewer treatment capacity from Country Club Drive Associates. This capacity representsthe vast majority of the remaining unused treatment capacity allocated to the Township ofClinton by the Town of Clinton MUA.

750 College Road East, Suite 100. Princeton, NJ 08540-6617 . Phone: (609) 452-3100 . Fax' (609) 452-3122Pamela S. Goodwin- Princeton ManagingPartner

BAL TlMORE CHESTERBROOK HARRISBURG NEW ARK PHILADELPHIA PRINCETON WASHINGTON WILMINGTON

962685.23/19/07ADELA W ARE LIMITED LIABILITY PARTNERSHIP

March 19, 2007Highlands CouncilObjection of SJM CommunitiesPage 2

SJM directs the Highlands Council's attention to the recent decision onn Re Adoption ofN.J.A.C. 5:94 and 5:95, 390 N.J. Super. I (App. Div. 2007). In this decision, the AppellateDivision struck down certain provisions of COAH' s Third Round regulations. The court heldthat the Mt. Laurel constitutional obligation is regional in nature, and that a municipality may notdetermine, by zoning and poor planning, to unilaterally reduce its affordable housing obligation.390 N.J. Super, at 81-90 Of particular relevance, the court stated that:

We agree with appellants that under the growth share approachcurrently embodied in the COAH regulations, a municipality maycontrol its destiny by adopting measures to discourage or retardresidential and non-residential development, simply by"downsizing" remaining developable land.

Any growth share approach must place some check on municipaldiscretion. The rules, as they currently exist, permit municipalitieswith substantial amounts of vacant developable land and access tojob opportunities in nearby municipalities to adopt master plansand zoning ordinances that allow for little growth, and thereby asmall fair share obligation. The regulations encouraging municipalconsistency with the State Plan do not address the problem becauseof the circularity of the process. The State planning designationsdepend in large part on municipal land use decision-making. Ifmunicipalities with substantial amounts of vacant land and accessto infrastructure can decide for themselves whether and how much

to grow, it is highly likely that housing opportunity will fall farshort of identified housing need. Therefore, the current growthshare approach violates both the Mount Laurel doctrine and theFair Housing Act. Id. at 89-90

The Highlands Act puts the onus on the Highlands Council to identify growth centers andprovide for regional housing opportunities within the Highlands. N.JS.A. 13:20-10c(9).Specifically, the Act recognizes that

The Council on Affordable Housing shall take into considerationthe regional master plan prior to making any determinationregarding the allocation of the prospective fair share of the housingneed in any municipality in the Highlands Region under the "FairHousing Act," (52:27D-301 et al.) for the fair share periodsubsequent to 1999. N.JS.A. 13:20-23a

The Draft Master Plan fails to meet this requirement. The housing policies and growtharea designations are woefully deficient to meet both the present demand for affordable housingand future need, as required by the Act. Id., see also NJ.S.A. 13:20-11c. This deficiency,coupled with the increased affordable housing requirement generated by the Appellate Division

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March 19,2007Highlands CouncilObjection of SJM CommunitiesPage 3

decision means that the Draft Master Plan must make significant additional realisticaffordable housing accommodations within the Planning Area.

An initial review of the Highlands Master Plan Housing and CommunityDevelopment Section demonstrates the abysmal lack of affordable housing opportunities withinthe Highlands region. The Highlands Master Plan states that this region has only 61.7 % of thestate wide norm for rental housing opportunities. Draft Plan, p143. The housing studydemonstrates that only 34% of all housing stock within the Highlands region is two bedrooms orless. Id. Furthermore, rental housing opportunities are found in communities with older housingstock, and therefore, it is a fair inference that a majority of rental housing available within theregion is older housing stock that has either been subdivided or converted to rental housing. Id.The Draft Master Plan recognizes the inequity of current housing: "These areas do not have asufficient supply of reasonably priced homes, thereby forcing workers to live in relatively distantcommunities." ld. The Draft Master Plan is woefully silent as to how to realistically addressthis documented affordable and rental housing crisis.

The data assembled by the Highlands Council is prima facie evidence of the exclusionaryzoning policies that have historically existed throughout this region. Only two (2%) percent ofthe entire Highlands housing stock is COAH affordable housing. Ofthe 296,543 housing unitswithin the Highlands region, only 6,588 are COAH affordable units. The fact that a mere 2.22%of housing stock is affordable under COAH standards is demonstrative of the existence andpernicious effect of historic exclusionary housing policies in this region. The Council's build outanalysis fails to address the well documented existing affordable housing shortfalls within theregion, nor does it address the redirected growth required as a result of the elimination ofdevelopment opportunities in both the Preservation and Protection areas. The Draft Master Plandoes not provide a regional approach to addressing affordable housing, but rather is designed tofurther encourage exclusionary zoning by providing modified growth share projectionsfar lessthan the Metropolitan Planning Organization ("MPO") standards. These standards were foundby the Appellate Division to be inadequate for growth share projection. In Re Adoption ofN.J.A.C. 5:94 and 5:95, 390 N.J. Super. at 80-82.

By failing to correct historic exclusionary practice, the Draft Master Plan violates thefundamental requirements for the exercise of land use regulation under the New JerseyConstitution, as stated in Southern Burlington County NAACP v. Mt. Laurel Township, 67 N.J.151 (1975) ("Mt. Laurel I") and 92 N.J. 158 (1983) ("Mt. Laurel II"). The Draft Master Planignores the constitutional principles of equity and fairness underpinning all regional and land useplanning in New Jersey. Instead, the Draft Master Plan is nothing more than a monument toexclusionary land use planning and the "walling off' of the Highlands region from anyone whodoes not exceed median income levels for this region. Under the Draft Master Plan, only the richand famous will be allowed to live in the Highlands region.

There is no analysis within the Highlands region of vacant properties that may beappropriately developed for housing densities that would provide a wide variety of housingstock. See N.J.S.A. l3:20-11c. The Act requires the Council to:

962685.23/19/07

March 19, 2007Highlands CouncilObjection of SJM CommunitiesPage 4

identify undeveloped areas in the planning area which are notsignificantly constrained by environmental limitations. .. and arelocated near or adjacent to existing development and infrastructure,that could be developed' Id. (emphasis added).

The Council states that regional housing needs must be addressed within the context ofconserving the character and environmental integrity ofthe Highlands. Draft Master Plan at145. However, the Highlands Council has failed miserably in addressing realistic growthpotential associated with undeveloped properties within existing Wastewater Management Plansewer service areas that do not have significant environmental concerns warranting theprotection of the property. The Highlands Council must identify properties that are appropriatefor growth within the "center" context.

SJM submits that the SJM Property must be classified in the Planned Community Zone/Specialty Planned Area. SJM submits that its property meets all the substantive requirements ofthe Highlands Master Plan Land Use Capacity and Assessment, so as to be more appropriatelyclassified in the Planned Community Zone. The SJM Property meets all the statutory vacantland development standards established by the Act. NJ.S.A. 13:20-11c. The SJM Property hasbeen designated as Planning Area 2 under all versions of the State Plan. The Property iscurrently split between a commercial zone and a residential zone. The Property is located onRoute 31, a majorarterial,and is approximatelyonemilefromthe Annandaletrain stationon theRaritan Valley Line. The Property is across Regional Road from the Regional High School andadjacent to Exxon Mobil's regional headquarters and the Township municipal building. To thenorth, west and southwest are medium and high density residential development.

The SJM Property has received a Freshwater Wetlands Letter oflnterpretation ("LOI"),which verifies the freshwater wetlands on site. The LOI verifies that there are no exceptionalresource value wetlands or wetlands of significant environmental resource value on the Property.Therefore, the LOI establishes that there is only a 50' transition area from the on site wetlands.The stream on site is not C-1 water body, nor a water course of any special resource value. TheProperty lies in the Raritan River drainage basin. There are no Threatened or Endangeredspecies habitat identified on the SJM Property.

Given the complete lack of any significant environmental concerns affecting theProperty, SJM submits that it is inappropriate and poor planning to situate this parcel in theConservation Zone. The SJM Property satisfies all criteria under the State Plan for "smartgrowth", high density development. There can be no rational planning basis to supportdesignation of this Property in the Conservation Zone. The SJM Property satisfies all "smartgrowth" criteria for development at a density of at least five (5) units per acre.

The State Constitution and the Act requires the Council to address affordable housingopportunities as part of the Master Plan. The Draft Master Plan does not address the substantialshortfall in affordable and least cost housing within the Highlands region. SJM believes the

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March 19,2007Highlands CouncilObjection of SJM CommunitiesPage 5

Council must address historic affordable housing deficiencies in a pro active manor so as toachieve a more equitable housing mix in the Region. To help address this shortfall, SJMrequests that the Council designate the SJM Property as part of the Planned CommunityZone/Specialty Planned Area.

Re

(f~spectfUllY S~bmitted

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Henry Kc -Smith, Esq.

CC: SJM Communities

962685.23/19/07

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