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S1 Promotes Sprawl and Lawsuits

Date : Thu, 3 Jun 2010 13:45:34 -0400

For Immediate Release
June 3, 2010 Contact: Jeff Tittel, NJ Chapter Director, 609-558-9100

S1 Promotes Sprawl and Lawsuits Puts Builders Remedy Target on New Jersey Towns

Trenton -- A bill that will abolish the Council on Affordable Housing (S1) puts open season on more than half of New Jersey's municipalities, giving power to developers to determine how towns will meet their affordable housing obligations. This bill, being voted on today by the Senate Economic Growth Committee, will encourage sprawl and overdevelopment and put our natural resources at risk.

The Sierra Club believes that the changes to S1 have made the bill worse. Too many parts of the legislation are vague or open-ended and the Sierra Club's concern is that this will put many aspects of the bill in the hands of the courts. The Office of Legislative Services has said already that parts of the bill do not pass constitutional muster. This will have to be determined by a long process in the court system. Developers' attorneys will be targeting towns throughout the state with builders remedy suits, determining how towns deal with affordable housing.

"This bill doesn't provide for affordable housing or protect the environment, but it is a full employment act for attorneys," said Jeff Tittel, New Jersey Sierra Club Director.

While the Sierra Club strongly supports affordable housing in New Jersey, it should not be used as a tool to undermine environmental protections or promote growth in inappropriate places. Housing should be located where the jobs are, helping to prevent sprawl and pollution while providing people with economic opportunities. The Sierra Club is concerned that, as the bill is written, many towns required to build affordable housing will be rural or environmentally sensitive.

Under the bill, inclusionary development just needs to be in a sewer service area, regardless if there are actually sewers on the site or not. Many sewer service areas go back to 60s and may not even have sewer plants or sewer lines in them. This bill would allow sewers to be extended into environmentally sensitive areas, one project at a time. Some of the worst sprawl projects in New Jersey, such as Windy Acres in Clinton Township, Pondview in Rockaway or Pinnacle in Oakland, happened because of this type of situation.

There is new language to be included in the bill that says that inclusionary zoning would be prohibited by the following: Pinelands Act, Highlands Act, Wetlands Act and CAFRA. Those laws, however, do not prohibit development, they regulate it.

S1 should be amended to have environmental criteria to ensure inclusionary development and other affordable housing projects go in appropriate locations. Affordable housing should be placed in approved waste water management areas under the adopted Water Quality Management Planning Rules and areas with adequate water supply.

The bill gives too much authority and power to the State Planning Commission. If passed, we'll simply be replacing COAH with another agency and bureaucracy. The State Plan has been a failure and the State Planning Commission doesn't function. It is filled with developers and people who work for developers. If you think that the COAH rules are arcane and hard to follow, try following the State Planning Commission's Plan Endorsement.

The data in the State Plan is from 1986 - it is outdated and filled with errors. The State Plan has never included a proper environmental analysis or strategic analysis for the State of New Jersey on how and where growth should take place. The State Planning Act says that the State Plan has no regulatory authority. By giving the State Planning Commission this power, we will undermine affordable housing and the protection of natural resources.

Inherently Beneficial Designation

* Towns that comply with their affordable housing requirements should have legal shield but this bill takes those rights away. * Towns that have passed ordinances and have complied with affordable housing requirements should not only be indemnified against lawsuits but the State Attorney General should defend those towns in cases of builders remedy litigation. * Under this bill, all projects in areas without inclusionary zoning go to the Board of Adjustment, giving power to developers. This applies to more than half the towns in state, mostly those in rural and environmentally sensitive areas. * An example of how that would work is if a developer has a hundred acre lot that is currently zoned at one house for every five acres, they will be entitled to build ten affordable housing units. If that developer asks for a de-variance to build 200 houses and 20 of them are affordable, the project would be designated "inherently beneficial" and therefore would be hard for the town to turn down. The developer would win because of the "inherently beneficial" designation. Developers will use this as an excuse to break through zoning and push high density projects and more development.

* If one-third of the town is attached housing, including townhouse and condo developments, that town is not required to zone for affordable housing, while the towns that do not have attached housing will be required to. Many growth communities that are fairly wealthy do not have to comply, but many rural areas that have a lot of single family homes do. * Developers will be able to use the inherently beneficial designation as a way to overturn local zoning and get permission to build projects in environmentally sensitive areas.

"Designating affordable housing as 'inherently beneficial' will put towns at the mercy of developers or face a lawsuit. Inherently beneficial only benefits the builders," Tittel said.

This is a major step backwards to the days in the 1980s, when builders remedy lawsuits not only undermined good planning but resulted in some of the worst sprawl projects in state history. We need to get rid of COAH but we should not go back to the days when towns were at the mercy of lawyers and developers.


Christine Guhl Program Assistant New Jersey Sierra Club

145 W. Hanover Street Trenton, NJ 08618 Tel: (609) 656-7612 Fax: (609) 656-7618

Received on 2010-06-03 10:45:34

New Jersey Sierra Club, 145 West Hanover St., Trenton, NJ 08618, USA
tel: 609 656 7612, fax 609 656 7618
or email Nicole Dallara, Outreach Coordinator, at

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