Bernards Voices

Below is a letter that I have requested be distributed to each member of the Bernards Township Planning Board and staff.  I do not know today if my request will be honored.   Bill Allen,  11-18-11

November 14, 2011

To:                  Chair and Members of Bernards Township Planning  Board

Subject:           Review of New Quarry Rehabilitation Plan

Introduction:  MQI has submitted a new plan for rehabilitation of the quarry land with a lead drawing entitled “2011 Reclamation for Millington Quarry” and dated 10-13-11.   The township ordinance uses the term “rehabilitation”, and I will continue to use that term and its short version:  “rehab”. 

There follow some observations and recommendations that result from my participation in the revision of the quarry ordinance in 2001 and in the reviews of rehab plans after 2001.  

The new plan is the fourth in the series of plans that have been submitted since 2001.  It is helpful to give simple names to things.  I have named prior plans for the year in the date of the associated drawings.  These were Plan 2003, Plan 2006, and Plan 2008.  The new plan will be Plan 2011.

The term “Quarry” has previously referred to MQI and Tilcon acting together and I will continue to use that term for MQI acting alone.  PB is again short for Planning Board and TC is short for Township Committee.

1. Purpose of Rehab Plan:  The township ordinance for quarry rehabilitation states in section [4-9.5, a, 1]:  ” The purpose of rehabilitation is to return the quarry property to conditions, that are permitted by the township zoning ordinance, that do not endanger the health and safety of the public, and that do not endanger natural resources such as ground water and soil erosion.  The purpose of the rehabilitation plan … is to describe these conditions, how and when they will be met, and the costs to meet them.”

You are accustomed to reviewing applications to develop land.  You and the applicant typically adopt advisarial postures.  Perhaps you wish, as I often did when I sat on the board in the 70s, that these development applications would just go away. 

A plan for quarry rehabilitation is very different.  The township wants rehabilitation and requires a plan for carrying it out.  The township and the Quarry, who is also the owner of the land, have a common interest:  to develop the best possible rehab plan.  The outcome can be win-win. 

Members of the public, whom attorneys often call “objectors”, by their searching questions and proposals may fairly be called “facilitators”.    

2. Review Is Delegated Task:  You are accustomed to working in accordance with the state Municipal Land Use Law [MLUL].  Section [40:55D26, b] of that law states:  “The governing body may by ordinance provide for the reference of any matter or class of matters to the planning board before final action thereon by a municipal body …” 

The Bernards quarry ordinance was first adopted by the Township Committee in 1979 and then revised several times.  Resting on the provision in the MLUL, the township quarry ordinance delegates to the PB the responsibility to conduct a review of a rehab plan and to submit a report to the TC with its findings and recommendations. 

In the conduct of its review the PB works in accordance with the township ordinance.  If there is some conflict between that and your procedures for land use work, the township ordinance controls. 

The authority of the PB is limited to the conduct of the review and submission of the report.  It has no authority to approve or reject a plan.  That authority resides with the TC, and the TC has no obligation to follow, or be limited by the recommendations of the PB.  In fact, the TC action in 2005 [for Plan 2003] did not follow the PB recommendation of 2004, and the TC action in 2008 went beyond the PB recommendation of 2008. 

In making its decision, the TC will probably rely on substantial parts of the record that the PB develops during the plan hearings.  It follows that this record should be relevant and as broad and as deep as possible.    

3. New Plan, New Review, New Record:  Some current board members participated in some of the hearings for other rehab plans.  Some did not.  Same for members of the public.  Plan 2011 is a new plan and you are conducting a new review.  Nothing in the records from prior reviews should carry any weight in the review of the new plan before it is entered as new testimony and made part of the new record.

4. Hearing May Prompt Plan Changes:  Ordinance section [4-9.5, a, 2] contains a key provision:  “In the course of the hearing, the planning board may recommend changes in the plan and the applicant may agree to these and amend the plan accordingly.” 

If you spot a flaw midway thru the presentation of the plan, you may move to get that flaw fixed.  If the flaw is critical, you may adjourn the hearings until it is corrected.   

5. Public Questioning of Witnesses Is Essential:  Ordinance section [4-9.5, a, 2] contains this statement for the rehab plan review:  “The Planning Board shall conduct the hearing and follow regular practices used for development applications. These shall include testimony under oath and the opportunity for members of the public to question witnesses and submit testimony.”

During its review of Plan 2003 the PB allowed members of the public to question a witness after board members had finished their questions.  This worked well.  The review of Plan 2008 was hurried by a court deadline.  The PB did not allow regular questioning and did not receive some potentially valuable input.  In the review of Plan 2011 it is essential that the board return to the letter and the spirit of the township ordinance and allow regular questioning of witnesses by the public.

6. Questioning of Witness Within Area of Expertise:  I have observed local land use boards off and on since 1972.  Common practice is to allow members of the public to ask questions that are relevant to the case and fall within the area of expertise of the witness.  They are not restricted to the testimony already given by the witness. 

Example:  Traffic engineers for a developer always provide analyses of traffic during peak hours in their reports and opening testimony.  Residents are usually interested in the traffic at other times:  when children are coming home from school, or when they are out walking or jogging, or when they just want peace and quiet near their homes.  Questions about this non-peak hour traffic are allowed.

7. Public Testimony:  The ordinance language in Section 5 above says that members of the public shall be allowed to “submit testimony”.  It does not say that they have to qualify first as experts in the subjects they are addressing.

Example:  A common complaint in development applications is that nearby real estate values will decline.  A land use board allows members of the public to assert this in their testimony, even though they are not qualified as experts in real estate appraisal.  Board members may not assign much weight to the testimony, but the board does allow it.

All public testimony must be allowed, so long as it is relevant and not repetitious.

8. Reports:  It is common practice for a professional witness to submit a report before his [or her] planned oral testimony.  Copies are distributed to board members and staff and made available for public review.  Interested persons may review the report and prepare the questions they intend to ask of the witness when he appears before the board.  When the witness does appear, his whole report is entered into the record, even though his oral testimony may cover only a small part of its content.  This practice works well.   

Members of the public should be allowed to submit reports in advance of their testimony for distribution and review in the same way as those from professional witnesses.

Wrapup:  Thank you for considering these comments and recommendations.

Bill Allen                  

Below is a letter that was published in the Bernardsville News on April 20.  It identifies an error in a news article on April 6 and outlines a plan for acquiring the land for Quarry Park.  It refers to a letter I submitted to the Planning Board on March 16 relating to the township master plan.  To see that letter click Letter to PB.

EDITOR:

An article on April 6 reported comments at the public hearing for the Bernards Township master plan on March 16.  Your reporter usually does an excellent job.  But he got a critical fact wrong when he wrote that I recommended that the township purchase the quarry land for a park. 

I produced a detailed concept plan entitled “Quarry Park and Lakeview Village” in 2004 and have promoted it many times.  It does not require purchase of any land with public funds.  

When I analyzed the rehabilitation plan submitted by MQI and Tilcon in 2003, I concluded that the best outcomes on the land would be townhouses on the buildable south slope and township ownership of the balance of the tract.  The latter would contain a lake and perimeter land with a few acres in a flat-bottomed canyon on the east side suitable for a park, bathing beach, and boat ramp. 

 I submitted the plan cited above to the Planning Board in 2004 and to the Township Committee in 2005.  Township officials have never engaged in any public discussion of this plan.  An updated version is on the website BernardsVoices.org.

The public hearing on March 16 wrapped up a process that began in 2008.  Planning Board members discussed the township master plan in great detail during many work sessions in 2009 and early this year.  On advice of their attorney and his concern for ongoing litigation, they skipped over the quarry land.

This was a mistake.  The quarry litigation deals with imported fill, not future land use.  There is no land in the township for which there is greater need for full review and discussion.  The master planning process was the right place for this.

I was blocked last September when I tried to submit a master plan proposal for the quarry land.  I was allowed on March 16 to submit a 2-page letter to the board and to read it into the record.  There was no comment from the board.

In my letter I argue:

• The most likely outcome for the quarry pit is a lake.
• Because people will live near the lake and some lake water will percolate to groundwater, township government has a responsibility to work to assure good water quality over the long term.
• This will be easiest if the township owns the lake and the perimeter land, and manages the property for the benefit of all.  

I have believed for many years that good-faith negotiation between township and quarry representatives can lead to a win-win-win outcome.  For the quarry owner, for the township, and for those who will live on what is now quarry land. 

If the owner receives a fair quantity of development rights that he can exercise on the south slopes, then he can transfer the rest of the land to the township at no loss.

The township will acquire land for a public park with a lake and bathing beach at no cost.   

The homeowners will be relieved of the burden of managing a large tract with a lake.   Because they will benefit from the lake over the long term, it will be fair to have them share in the costs of maintaining it.  

I believe this plan will produce good outcomes for all and I strongly recommend it.

Bill Allen

The letter with the heading above and the content below was published in the Bernardsville News on September 24, 2009.

Editor:
A letter in your paper on September 17 endorsed the Republican candidates for Bernards Township Committee and included comments related to the quarry. These prompt a response.

The writer commends township officials for repeatedly making it known that “they are committed to a prohibition on any further fill and complete testing of existing fill.”

Some relevant history follows. In February 2005 the Planning Board recommended that the steep quarry slopes be reshaped to satisfy the township ordinance. It advised against the importation of fill for this purpose.

In January 2006, with no warning or explanation, the Township Committee rejected the board’s advice and voted to open the door to uncontrolled importation of fill. Four of those who voted still serve on the committee, including John Malay who is running for reelection this year

In 2008 township officials moved to stop the importation of fill. They have managed this so badly that we are now in the 18th month of expensive and paralyzing litigation. There is nothing in this record to brag about.

The writer states that some are proposing “high-density housing” on the quarry property, and that this will bring more school children.

A detailed alternative to single-family houses is described on the website in the post entitled “Quarry Park and Lakeview Village”. The proposal is to substitute two townhouses for each single family house that is allowed under present zoning. An analysis on the same website explains why these townhouses will generate about the same total amount of property taxes, but will be home to only half the number of public school students.

The letter writer denigrates the proposal for a public park and suggests that the quarry pit will become “a sump absorbing all the run-off from surrounding yards, streets and parking lots.”

The most likely outcome for the pit is that it will fill from precipitation to the level of the water table. Because people will live near the resulting lake, and because some lake water will percolate to surrounding ground water, township government has a responsibility to work to assure that the lake water quality is good over the long term.

It must assure that any harmful substances, that are in the fill and near the future lake, are either removed or remediated. This in turn requires a comprehensive program for testing the fill now. The work is the responsibility of the quarry owner and operator.

Township officials must encourage a site design that will reduce the risks of pollution from human activities after the site is developed. The Quarry Park design will do this better than a conventional subdivision.

The lake must be monitored and managed over the long term to assure good water quality. It will be easier to do this if the lake and land immediately surrounding it are owned by a single entity. The Quarry Park plan provides for this.

The writer asserts that the park will be “a huge financial burden for the town taxpayers in perpetuity.”

The Quarry Park proposal addresses costs. There is no reason to conclude that those for taxpayers will be large. The townhouses will produce more school tax revenue than the costs for the public school students who will live in them.

Sonal Shah is the Democratic candidate for Bernards Township Committee. She has published no specific position on the quarry. However, one of her planks is: “Avoid costly, unnecessary litigation.” The quarry litigation is costly. And it could have been avoided.

Future problems of this kind can be avoided, if we elect township officials who will engage in respectful and rational discussion of important issues with each other and with the public. I believe Sonal will do this and I support her.

Vote for Sonal Shah on November 3!

Bill Allen, September 22, 2009

The article below was the basis for a letter published in the Bernardsville News on July 23, 2009.

To see the plan map and detailed description in separate windows click on map and description. Suggestion: Maximize each window and then toggle between them. The description contains six pages. For a table of contents click index.

It’s a balmy mid-summer day as I write this for residents of Bernards Township.  And I’m thinking that I would like to be in, or on, or just looking out over a nice lake. Today we have to drive many miles for this opportunity. But with imagination, and the will to achieve what we imagine, we can have a large lake for our use and enjoyment right here in Bernards Township.

The place is now the Tilcon Millington Quarry and the time–when the lake will be full and available for fishing, boating, swimming, and other things–will be about 2020. The lake will be inside what I call Quarry Park. The park will contain 100 plus acres and will have facilities for active and passive recreation, such as trails for walking and biking, a put-in ramp for non-motorized boats, and a slope for snow sports. Operations for a bathing beach will be financially self-supporting like Pleasant Valley Pool.

A detailed concept plan is described in a letter to the Planning Board dated July 17, 2009. This is a slightly revised version of a plan first submitted to the board on August 17, 2004.

The board is currently engaged in a review of the township master plan. I intend to present the park plan to the board during a period for public comment. The plan is presented here in two parts: a drawing of a map and a description of the map. To view them in separate windows click on map and description.

The map includes a private community of townhouses on the south slope that is surrounded on three sides by the public park. I call this Lakeview Village.

The wrapup for the letter to the Planning Board contains these comments:

• The park with lake and adjacent land will serve the general public and support many kinds of active and passive recreation.
• The lake will be part of the public park and be managed by the township. This will remove the uncertainties associated with management by a private association.
• The park will be a valuable amenity for the residents of Lakeview Village. The Village will probably become the premier townhouse community in the township.
• The fiscal impact of the substitution of townhouse units for single family units will be positive, because the property tax revenue for each public school student will be higher.
• This can be a case of win-win for the quarry owner and for township residents.

Bernards Residents: You can have this park if you tell your township officials you want it.  Start by attending and speaking at the Planning Board public hearings on the master plan.  Then speak to members of the Township Committee.

Bill Allen,    July 17, 2009

The Bernards Planning Board is currently engaged in a review [aka "reexamination"] of the township master plan.  This task is undertaken every six years and is mandated by state law.  Working meetings are held at Town Hall on the last Wednesday of each month.  Members of the public may observe and there is opportunity for public comment.

“Land Use” is the principal element in the master plan,  The review must include the goals, objectives, and recommendations for land use throughout the township, and this includes residential development.

Bernards currently has many kinds of houses that serve many kinds of households.  However, current regulations restrict new residential development to single family units.  Statewide data over decades has shown that single family units in the aggragate tend to produce fiscal losses, and multifamily units in the aggragate tend to produce fiscal profits.  Extensive data show that we have this condition in Bernards.

There is a simple explanation:  Single family units in Bernards are on average home to four times as many public school students as multifamily units.  The average tax revenue produced for each student from a single family unit is about half the revenue produced for each student from a multifamily unit.     

I propose that the township development regulations be revised to allow the substitution of two townhouse units for each single family unit that is allowed under current zoning, in those locations where there will be no adverse impact on nearby property owners.

In addition to the fiscal benefit, townhouses use and disturb less land.  This is particularly relevant for the future of the quarry land.  A townhouse development on the relatively unsteep south slope will allow the lake and surrounding land to be used for a public park.

I have submitted two letters to the Planning Board supporting this proposal and made a brief presentation to the board on June 24.  To read the letters click on June 17 letter and June 25 letter. 

Bill Allen,  July 10, 2009 and July 27, 2009