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Smart
Growth, the Master Plan & Environmental Protection
"We
have not inherited the earth from our parents,
we have borrowed it from our children."
The
way we use the land affects all aspects of the environment –
the air, water and soil. Proper
planning and regulation can limit the environmental impact of
land development by controlling and abating pollution and preserving
resources for future generations. The New Jersey Legislature has delegated most
of the responsibility for land use to municipalities. However,
decisions made by state agencies, county governments and even
neighboring municipalities also play an important role in the
actual development patterns. Ultimately it is the municipal master
plan that creates the foundation for the local zoning and land
ordinances that govern development. A
master plan that clearly states environmental and development
goals provides a solid base for the ordinances so vital to protect
a community’s public health, safety and general welfare.
Municipal
Planning
The
Municipal
Land Use Law (MLUL; N.J.S.A. 40:55D-1 et seq) provides the
legal framework for land use control by local governments.
Under this law, municipalities may adopt a master plan,
regulate land use through land use ordinances that are consistent
with the master plan, develop a capital improvement program,
and adopt an official map to show the location and extent of
present and future streets, drainage ways flood control basins
and public areas.
A
comprehensive document, a master plan describes the town's current
and proposed patterns of land use in text, maps and diagrams.
The master plan should articulate the community's vision of what
it ultimately wants to be, socially, economically and physically. (See A Vision Statement:
A Must for All Communities).
Municipalities
implement the MLUL in four major areas:
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The
planning board develops, and after public hearing, adopts
a master plan "to guide the use of lands within the
municipality in a manner that protects public health and
safety and promotes the general welfare."
-
The
governing body adopts zoning, site plan, subdivision, and
other ordinances that must be consistent with the master
plan.
-
The
planning board and, in some cases, the board of adjustment,
review and approve proposals to develop parcels of land,
in line with the master plan and zoning and development
ordinances.
-
The
governing body may adopt an official map delineating future
areas for preservation, infrastructure and other public
uses. Such a map gives the municipality a right
of first refusal should these lands be put on the market.
How
a Master Plan Can Help Protect Natural Resources
The
municipal master plan can be the vehicle for organizing a planning
process to protect natural resources. In fact, the purposes of the MLUL clearly state that the master plan should
protect the environment and conserve open space. First, a municipality
should develop a land use plan that uses the natural/environmental resource
inventory as a base and takes into account the capacity of
the natural infrastructure, i.e. what the land, water and air
will support. The master plan can map what environmentally critical
areas should be preserved and explain why these particular lands
are important. It should also identify suitable areas for growth where development
will have little or no impact on environmentally critical areas.
Including
strong natural resource preservation planning in the master
plan offers the municipality many benefits. A master plan with
clear objectives and comprehensive elements will help keep various
interest groups and successive administrations of local government
"on the same page." This will lead to a more consistent,
cohesive and defensible approach to protecting critical environmental
areas.
Master
Plan Contents
A
master plan should articulate a community’s "vision" for the future,
including appropriate development and open space protection. The master plan also should include a comprehensive
database and planning techniques for achieving community objectives.
The master plan offers the framework for the planning board and
governing body to develop the elements of good land use, including
meeting local housing and economic development needs and protecting
important natural resources.
The
MLUL requires that the master plan contain a statement of its
relationship to certain local, regional and state agency plans
that affect the municipality.
It
is also a good idea to include the analysis of other state, regional
and local plans that can affect the municipality.
A
master plan must take social, economic and environmental factors
into account and relate them to each other. Social needs include
schools, hospitals, a diversity of housing and other service requirements.
Economic considerations include providing the municipality
with a base for property tax revenues, having business, shopping
and service areas for residents and the physical infrastructure
they need to function. Environmental
factors include the impact development will have on air, water,
soil, open space, scenic, cultural and recreational resources.
Setting
Goals and Objectives
Overall
master plan goals are usually fairly general, and describe the
vision a community has for its future. Objectives are more specific. For example, if the goal is preservation of
community character, then the objective could be preservation
of farmland, historic resources and/or size and density of buildings.
The
goals in each master plan element should be more detailed, providing
justifications and precise description of why the municipality
has chosen this goal and how it intends to pursue it. “Identify
and protect steep slopes in recognition of their vulnerability
for erosion, siltation, flooding and water runoff “ explains
the municipality’s aims more clearly than a general statement
like “Protect steep slopes.”
“Promote
biodiversity by designating large contiguous forested tracts
as habitat for migratory and endangered species” offers
a general description of the strategy the municipality will
use to reach this particular goal. This specificity clearly
documents the basis for ordinances and policies that have their
foundation in the master plan.
Master
plan policy statements can create the climate for open space
preservation. For instance, if a municipality decides it wants
to accept conservation easements or outright donations from
landowners, the master plan should contain a specific statement
of this objective. Such language is important for future donations
of land or easements to qualify for a federal tax deduction.
To
provide a solid basis for natural resource protection, the master
plan should contain specific language on the necessity for specific
ordinances that help set aside open space like clustering, lot
size-averaging, downzoning, overlay zones and protection of stream
corridors, steep slopes, ridgelines, wellheads and aquifer recharge
areas.
For
example, the Conservation Element can contain a case for downzoning
slope areas and passing a steep slope ordinance. It should describe
the areas, their benefits to the municipality, and the obstacles
and impacts of their development.
It should also contain specific language on the necessity
for an ordinance. Including several justifications for the ordinance,
like health and safety, natural resource conservation and biodiversity,
makes a legal challenge of an ordinance more difficult. Here’s one example of a municipal case
for steep slope protection.
"Twenty
percent of the township is characterized by critical slopes
of 15 percent or greater, which present significant problems
for septic effluent disposal, house siting, grading, erosion,
runoff onto adjacent properties and into nearby streams. The
slopes are important factors in maintaining aquifer recharge
and ground water quality. Additionally slopes that are heavily
forested and contain large tracts of contiguous hardwood trees
provide habitat for migratory neotropical birds and endangered
species. To protect steep slopes, the municipality should rezone
the critical slope areas, limit their grading and prohibit development,
cutting of vegetation or other disturbances on steep slopes."
Master
Plan Elements
According
to the MLUL, a master plan must
contain:
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A statement of objectives, principles, assumptions, policies
and standards upon which proposals for the development of
the municipality are based; and
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A
land use element, which considers natural conditions including
topography, soil conditions, water supply, drainage, floodplain
areas, marshes and woodlands. The land use element should
show existing and proposed land use and describe population
and development intensity.
The
MLUL also lists ten optional master plan elements, including
community facilities, conservation, circulation, economic development,
historic preservation, housing, recreation, recycling and utilities.
A well-written effective master plan will include the
optional elements and supporting studies.
The
master plan elements should be internally consistent, complement
each other and reinforce the rational for protecting environmentally
sensitive areas, critical resources like wells, farmland, surface
waters and air quality.
The
required land
use plan has the broadest scope of all the master plan elements.
As noted in the NJ Planning Officials
NJ Master Plan Manual, the land use plan “is the most
used and most important element of the Master plan because it
establishes the basic physical form of the community.”
It should reflect the data and recommendations from the rest
of the plan and offer a detailed comprehensive framework for
development and preservation.
Under
the MLUL
(N.J.S.A. 40:55D-28b), the land use plan must reflect the other
elements, and include the existing and proposed location, extent
and density of future public and private development (e.g. educational,
recreational, residential, commercial, industrial); the relationship
of future development to existing and future zoning ordinances;
existing and proposed locations of airports; the recommended standards
of population density and development density, existing and planned
infrastructure for roads, sewers and water supply.
The
land use plan should also reflect the environmentally critical
areas identified in a town's natural/environmental resource
inventory and be consistent with all other elements, especially
the conservation plan. Background studies like buildout and
carrying capacity analysis (See Buildout
and Carrying Capacity) can also help support specific zoning. The land use plan serves as the basis for the zoning ordinance and
is also important in the State
Plan endorsement process. Municipalities who obtain State
Plan endorsement are eligible for increased state funding.
They must demonstrate how their master plan and ordinances
are consistent with and support the goals and objectives of
the town’s State Planning Area designations.
Conservation
Plan
The
conservation plan provides an environmental framework for the
master plan. Using the
natural/environmental
resource inventory as a base, it should describe the municipality's
natural resources, their value and benefits to the health, safety
and general welfare of the community. It should also analyze the
impact of other master plan elements on the preservation and use
of the municipality's natural resources and environmental quality.
Including
an open space/greenway plan,
either as part of the conservation plan or as a separate element,
has a number of benefits. As a master plan element, an open space/greenway
plan receives official recognition and support and will be regularly
updated as part of the six-year master plan reexamination cycle
required by the MLUL.
Many
municipalities have passed open space taxes
to establish funds for land acquisition. Having an open space plan
in the master plan will legitimize targeting properties for purchase
with municipal open space funds. It can also help in obtaining state
funding for acquisition.
NJ's
two major land preservation programs require specific local plans
to qualify for special incentive grants. To take advantage of the NJ Green Acres Planning
Incentive Grant Program, a municipality must have an Open Space and Recreation
Plan (OSRP) that meets Green Acre's specifications. The OSRP
can be an independent document, or the planning board can adopt
it as an element of the master plan. For municipalities interested
in farmland preservation, the State Agriculture Development
Committee requires a Farmland Preservation Element in the
master plan. Both delineate
where open space currently exists and clearly set forth a community's
vision and justifications for future open space and farmland needs.
The Farmland Preservation Element should be consistent with the
data and recommendations of the Conservation Element.
Other
Master Plan Elements
While
strong land use and conservation elements are helpful to natural
resource protection, it is also important to insure that virtually
every master plan element incorporates an awareness of the municipality’s
important environmental resources and directs growth and development
accordingly. Each element should incorporate the conservation element’s
background data and support community open space goals.
The
circulation plan usually
aims to reduce traffic impacts. It can reflect the information in the conservation element to assure
that new roads do not go through or near land desired for preservation.
It should also incorporate more than traditional roads and show
how a municipality aims to meet the needs of pedestrians, cyclists
and transit riders. A
circulation plan for example, can mark existing and proposed pedestrian
and biking trails for trekking or connecting existing areas of
the community to one another.
The
historic preservation plan
can identify local areas that are important for the community’s
character and history. For
example, gateway roads, or historic infrastructure like a canal,
or battlefields from the American Revolution often offer special
views and create a sense of place that may be part of a historic
viewshed to be preserved. The historic preservation plan can also reinforce
the conservation plan if there are open areas like farms that are
important for preserving examples of the municipality’s past.
The
community facilities
plan covers all kinds
of facilities used by a large number of people including parks
and trails, recreational fields and buildings, cultural facilities,
historic sites, libraries, municipal buildings, DPW yards and
garages, post office, federal, county and state facilities. This
section of the master plan usually concentrates on publicly owned
and operated facilities, although it can also cover non-profit
facilities like churches and synagogues, hospitals, cemeteries
and private schools and private facilities like golf courses,
swimming pools, lakes, marinas and ski resorts. It can use the
conservation plan’s data to identify appropriate locations
for future schools, recreational fields or other facilities.
The
recreation plan can support
the community’s open space goals. It should be consistent with the municipality’s
Green
Acres Open Space and Recreation Plan (OSRP). It should also include trails from the Circulation Plan and fields
and facilities from the community facilities plan.
The
housing plan is important
for preserving land. Under the rules of the Council on Affordable Housing, municipalities
with certified housing plans are protected from the threat of
builders' remedy lawsuits. By planning for affordable housing,
a municipality can avoid being force by developers to accept large,
high density projects. The planning and execution of an appropriate
housing element can ensure that the future envisioned for a community
is real and will not be disrupted by outside influences. (See
Meeting a Town’s
Affordable Housing Obligation While Protecting Natural Resources)
The
utility plan plays an
important role in determining where preservation and development
will take place. It should identify existing and future surface
and groundwater sources of drinking water, sewer service and drinking
water franchise areas as well as buffers and other protective
areas. Utilities that support increased development should be
located away from sensitive environmental areas.
As
the supply of open land diminishes in New Jersey, municipalities
face increasing pressure to allow development on tracts with environmental
constraints: floodplains, wetlands, ponds, lakes, streams and
steep slopes. When the natural functions of these areas are destroyed,
the result is often significant public cost, loss of natural resources
and habitat. ANJEC maintains a database for its members of more
than 500 sample ordinances from towns who have enacted ordinances
to control the intensity of land use in these sensitive environmental
areas. (See Environmental Ordinances for
a listing of topics.)
The
Importance of Public Participation
A
master plan should articulate a community's "vision."
The environmental commission should get involved with the
master plan development and its revisions to make sure it protects
natural resources and environmental quality.
A
wide variety of citizens should be part of the master plan process.
With the growing interest in open space preservation, pointing
out the connections between the master plan and land conservation
can help bring people to the table. The planning board, open space
committee, environmental commission, municipal governing body,
recreation committee, historic preservation commission and agricultural
advisory board may be involved. In addition, residents not directly
involved with municipal government will be concerned with the
recreational, environmental and aesthetic impacts on the master
plan. All parties interested in saving natural resources
should be involved in reviewing and amending the master plan.
The more residents who buy into the plan, the better the long
term support for local regulation will be.
The
environmental commission should have a copy of the master plan
in its library and commission members should be familiar with
its contents.
Caveats
Master
Plan Ruled Essential in Open Space Planning
A
recent court case, Township
of Monroe v. Noonan, Petrone & Hsu, highlighted the necessity
of comprehensive open space planning in the master plan and open
space plan. In the Township of Monroe (Middlesex), developers
sought to purchase 10 undeveloped acres in a residential zone,
for various commercial purposes. Their projects required a use
variance. Each time they
filed a variance application, it had strong opposition from residents
of a nearby adult community and it was denied, withdrawn or dismissed.
The
township began to consider acquiring the property as a park and
adopted an ordinance to exercise its power of eminent domain (condemnation).
It stated the land was for a public park and open space and that
it was in "furtherance of the township's master plan goal
of providing adequate open space and recreational facilities for
present and future use." (A "public use" is needed
in order for a municipality to condemn land.)
The
three property owners sued the town to stop the condemnation.
They alleged the town acted in bad faith because it sought condemnation
only to prevent commercial development rather than to fulfill
a public need for a park and open space. The court agreed with
the property owners. The court's reasoning relied heavily on the
fact that the township master plan, adopted shortly before the
condemnation, did not mention the property as a possible site
for a park or open space. Moreover, the open space committee's
township approved open space plan did not list the site in its
recommendations of parcels for acquisition. Without these plans
designating the parcel, it appeared the township had no interest
in the property as a park until community opposition to the use
variances developed.
The
“Taking” Issue
As
municipalities put zoning and other regulatory restrictions on
land use, the "taking" issue often arises. The Fifth
Amendment to the U.S. Constitution states, "private property
shall not be taken for public purposes without just compensation."
The U.S. Supreme Court has ruled that if a regulation is too restrictive,
it will be recognized as a "taking" and may be struck
down. This means the municipality cannot zone a property so that
no use is possible.
Sometimes
it is difficult for citizens to realize that though they enjoy the
woods, streams or other natural features of a piece of open land,
if the land is privately owned, the town must allow the owner reasonable
use of the land, which may or may not include development.
Open
space and natural resources can be saved from all development
and set aside for public use only by public purchase, donation
or easement, or ownership by a private land conservancy. Land
cannot be taken for public use, but regulations may control all
but nominal beneficial use, if they serve the public interest.
New Jersey courts have upheld some extremely restrictive zoning
and regulatory provisions allowing only such land uses as farming
or low intensity recreation. Therefore, reasonable use does not
always mean the right to construct buildings or even the right
to the most profitable use of the property. Although the town
may not use its regulatory power to prohibit all development of
the land, it can say how the land will be developed. The planning
board and environmental commission must insure that the land is
zoned for development in a manner sensitive to its environmental
features and its regional impact and that this zoning law is enforced.
Conclusion
The
master plan is a living document. As the framework for local land use, development
and preservation, its contents and recommendations should reflect
current goals and issues. While
amending and updating a master plan can take considerable time and
effort, it is generally worthwhile, especially when there is a growing
awareness the value and benefits of protecting natural resources
and environmental quality. The master plan review and amendment process
offers an excellent opportunity to reach out to the public and get
their support for land preservation through acquisition and stricter
local regulations.
For
Further Information
ANJEC,
Acting Locally: Municipal
Tools for Environmental Protection, 2002, 148 pages, $10 plus
postage and handling. Order on line
or by mail.
ANJEC,
Keeping Our Garden State
Green: A Local Government Guide for Greenway & Open Space
Planning, 1989, 57 pages, $10 plus postage and handling. Order
on line or by
mail.
ANJEC
Resource Papers
The
Municipal Land Use Law (N.J.S.A. 40:55D-1 et seq).
Available in print from NJ Planning Officials, www.njpo.org,
(973-403-1100) and on-line at the Resources section of the Office
of Smart Growth website www.nj.gov/dca/osg.
Regional
Studies and Plans
-
- NJ
Highlands Build-Out, Environmental Defense- Jason Patrick, (212)
505-2100 ext. 1209 for an example of build-out analysis
- NJ
Pinelands Commission studies on the Mullica watershed- go to
Science Office section of www.state.nj.us/pinelands.
609-894-7300
- NJ
State Development and Redevelopment Plan , statewide land
use initiatives, development and redevelopment scenarios (800)
522-0129
Tools and Data
.
Our
thanks to ANJEC Project Director Kim Ball Kaiser for preparing
this material.
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