Why can't the township just tell developers no?
By Committeeman Gerard P. Scharfenberger, PH.D.
Whenever a major development application is submitted to the Township’s Planning or Zoning Board, the questions that are invariably asked of the Township Committee are: “why can’t you just tell them no?” or, “how could you let that happen?” Unfortunately, the answers are not as simple as the questions may imply.

It is important to keep in mind that most development occurs on private property owned by individual property owners or non-governmental entities. Landowners have a legal right to develop their property per State and Federal law. There are very strict laws governing land use in New Jersey that are rooted in our very Constitutional rights. Both the zoning and planning boards which oversee development in the township are independent bodies. Their review process is thoroughly dictated by State laws that provide criteria for determining if an application meets the terms of the statute. Thus, an application cannot be denied simply because a board does not want it. There must be sound legal grounds to deny an application based on some conflict with existing laws or local zoning restrictions. Under State law, the Planning Board, with the aid of the planning staff, drafts a Master Plan. After public notice and hearings, it is adopted and zoning ordinances setting out what is permitted or prohibited, along with various standards, are adopted by the Township Committee. However, even Municipal Master Plans and Zoning ordinances are limited by state and federal law. For example, towns are not permitted to limit the use of property to “Open Space” or “Farmland” only.

The zoning ordinances that the Township Committee adopts must conform to the guidelines set by New Jersey State law. Zoning cannot be used to render a property unusable by an owner, or target a specific property to keep it from being developed, so-called “spot zoning.” In fact, zoning is extremely complex and must be looked upon in the context of the entire township, not just a small section or individual property. Moreover, zoning ordinances that a property owner feels are too restrictive or unfairly diminishes the value of a property could be challenged in court, which could expose the township to expensive, lengthy litigation.

Making matters worse, the State dictates to the Planning Board and Township Committee that much of the new housing in Middletown has to meet the Supreme Court’s affordable housing quotas. This requirement severely limits the local zoning powers of the Township since State law requires that we provide for an obscene number of affordable housing units, which total over 2,000 units to date. Middletown has aggressively challenged this mandate by arguing that the Township already has an abundant supply of affordable housing. The court has yet to address the Township’s very valid position.

More than 30 percent of our households are at or below the State’s requirements to qualify for affordable housing. It is our position that the law and the Supreme Court decisions that started all of this were intended to stop towns from being “exclusionary,” in other words, from purposely acting to keep lower income families out.

Middletown has never done that. In fact, Middletown developed plenty of affordable housing through the free market and utilizing federal housing funds in the 1970s and 1980s, long before there were court-imposed mandates to do so. Middletown has never been opposed to affordable housing designed in a sensible and meaningful way that does not detract from the quality of life of our community or burden the taxpayers with costly, environmentally devastating housing quotas. The problem is Middletown does not get credit for our existing affordable housing stock unless it is deed restricted, or even if it is, it must have been built after 1980.

What we do oppose are huge mandatory numbers for new construction on top of our already abundant supply of existing affordable housing. Governor Christie tried to abolish the Council on Affordable Housing (COAH) and unburden towns from this oppressive mandate, only to be overruled by a court order. Middletown is currently pursuing a legal challenge to what we see as a grossly unfair and costly system that takes away the town’s ability to decide its own development destiny. We must be mindful that until the laws change dramatically or the courts make major changes, the problems towns face relative to affordable housing requirements and their associated quotas will unfortunately continue to be a burden on local taxpayers.

Fortunately, Middletown has very strong, knowledgeable Planning and Zoning Boards that do everything within their legal powers to limit the negative effects of development on the Township. The Boards must always be diligent in giving an applicant a fair and impartial hearing, while protecting the Township from a legal challenge in the event that an application is turned down. The latter is often an inescapable part of the process. As a result, it is imperative that the boards not overstep their bounds and follow the law so the Township can defend its position if it ends up in court. For example, Planning Boards cannot legally use traffic increases or the addition of new school children as reasons to deny or even scale back a proposed development. This is often a very big misconception on the part of the public, when concerned about new development.

Even with all of the pressure on the town from court mandates and COAH quotas, Middletown’s efforts to rein in overdevelopment have been largely successful. Evidence of this lies in the fact that Middletown’s population has remained flat from the year 2000 until now. This is also reflected in the number of students attending Middletown public schools. In fact, the number of students in Middletown schools is actually lower now than years past. In the mid 1970s our school population was over 13,000. By 1980, there were a total of 11,379 students. As of 2014, there were 9,808. This is the result of a variety of factors including the widening trend toward fewer and fewer children per household and the growth of private school options for kindergarten through high school education. In addition to controlling development, Middletown has also had a very aggressive open space program that has successfully preserved thousands of acres over the years. Moreover, it is within the right of any individual or group of individuals to purchase property for the sole purpose of preserving the property as open space.

Although the planning process is guided by State law, the public can and does play a very important role. When an application comes before a board, the public is encouraged to attend meetings and provide input, either through oral testimony or written comment. This is extremely valuable for the Planning Board, since many issues and potential flaws in an application will only come to light through this exchange with the public. Here are some points to remember when appearing before the boards:
•Review the zoning ordinances that govern development on the proposed property.
•If you oppose an application, have concrete reasons and facts based on conflicts with the applied variances as to why the application should be turned down. Just saying you do not want it is not grounds for denying an application.
•Whenever possible, provide expert testimony to support your position.
•Always remember to present your position in a respectful manner. Insults or threats will only damage what may be a very legitimate objection.

In closing, it is a well known fact that New Jersey is the most densely populated state in the union. As such, it is critical that all future development be scrutinized and any negative impacts to the community mitigated to the extent humanly possible within the law. The Middletown Township Committee is dedicated to keeping development in town to a minimum within the constraints of what the law will allow. To that end, we have aggressively pursued expanding the amount of dedicated open space in town, either through direct purchase or conservation easements, while fighting destructive policies like excessive government-subsidized, low and moderate affordable housing that threaten the remaining open spaces and quality of life we all currently enjoy.

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1. How does Middletown compare to Monmouth County and New Jersey?
2. Why can't the township just tell developers no?