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As previously reported here on MercerMe, two companies known as Pennwell, LLC and the Gadbey Organization recently filed an application with the Hopewell Township Zoning Board of Adjustment concerning the 100.7 acre property commonly known as the Kooltronic tract, in the Marshall’s Corner area of Hopewell Township (near the former Pennytown).

For the full breakdown of details and units, see this document on the Hopewell Township website.

The application is the first step in the “transfer of development rights” process set forth in the 2006 Settlement Agreement concerning their property, ultimately allowing them to construct as many as 255 housing units on the site, provided that the owners permanently preserve property elsewhere in Hopewell Valley.  The first hearing on that application this Wednesday night drew several members of the public and many questions from both sides of the dais. 

Specifically, the zoning request seeks interpretation of the Township’s Land Use and Development Ordinance, section 17-172j, so as to “permit the use of the deed restrictions for the purpose of restricting on tracts for which development rights will be transferred to the VRC-HLI [Valley Resource Conservation – Hamlet Light Industrial] district.”  The applicant has proposed specific language and uses for the land it seeks to preserve and has asked the zoning board to approve whether those restrictions could count towards its preservation requirements.

“My client is not a developer but we will eventually sell to a developer, so we need to know what is allowed before we put down the monies,” explained the applicants’ attorney Gerald Muller from Miller Porter & Muller in Princeton. “We want the interpretation so we can pin that down and believe this is squarely within the board’s ability.”

According the the 2006 court approved Settlement Agreement, the owner of the more than 100-acre Kooltronic tract can develop fourteen units, plus one unit for every 7-acres preserved in the MRC (Mountain Resource Conservation) District and one unit for each 3-acres preserved in the VRC (Valley Resource Conservation) District, for a total of approximately 255 units.  The property in question is designated as Lots 17.011 (50.53 acres plus 29 acres currently farmland assessed) and 17.03 (21.17 acres that is currently farmland assessed) in Block 37.

The Township Code (as well as the settlement agreement) would consider “preserved” land that has been permanently deed restricted for conservation uses. The terms of the settlement between the Township and the developer is an example of a “transfer of development rights” (TDR) program where more dense development is permitted through the preservation of land elsewhere. The request for Township approval for the form of preservation deed notice is likely to be the first step toward documenting the preservation of off-site properties in order to perfect the denser development rights for the Kooltronic property itself.

While the zoning board agreed that the interpretation was something within its jurisdiction, the board was unwilling to address the application because of its vagueness.

“The ordinance is pretty general and you want to know what you are supposed to do. This is a reasonable approach,” said zoning board chairman Bill Connolly, “but it has to be framed as a specific matter of interpretation. We had to hunt in this document to find the request.” ”

Since the ordinance limits the property to resource conservation uses, … what about a golf course?” Connolly continued. “These are legitimate interpretation questions including if the applicant specifically asked if a golf course was a resource conservation use. You are putting us in a difficult situation of trying to find the questions and we want to make sure we don’t inadvertently approve something just because we didn’t know it was asked.”

Want to read up on Township land use and development? Here you go!

Section 17-172j of the Township code addresses what are known as “noncontiguous cluster developments” in the VRC-HLI District and “provides a mechanism for the transfer of development potential from properties in the MRC and VRC Districts to a designated hamlet in the HRC-HLI District … to provide an opportunity to create an alternative development opportunity that furthers the goals of resource conservation in the township, while providing a development for that supports the goals and policies of the master plan.”

Expressing concern about whether the above uses could be considered for conservation, Michael Pisauro, the policy director at the Stony Brook-Millstone Watershed Association, pointed to the Hopewell Township Master Plan which states:

The intent of the noncontiguous cluster option is to preserve and protect the critical environmental and agricultural resources that prevail in the VRC and MRC Districts, while accommodating development in well planned and located nodes.

However, the Township ordinance states that open space shall be reserved in perpetuity either by dedication for “public use or for use by the residents of the development by private covenant or deed restriction” for one of the following purposes: “undeveloped open space, public or private recreational facilities, conservation of environmentally sensitive features including, but not limited to, steep slopes, wetlands, aquifer recharge areas, floodplains and wooded areas, [and] agricultural use…”

Apparently eying up purchasing the development rights to one of Hopewell Valley’s golf courses to satisfy part of its preservation obligation, the applicant seeks approval of a draft deed restriction to include:

Screen Shot 2016-03-03 at 1.24.19 PM

“While I enjoyed playing golf as a child, that is not a critical environmental resource,” said Pisauro. “The ordinance also talks about preserving large tracts of contiguous forests and farmland and preserving those prime soils — those are the things that this ordinance was meant for transfer of development rights.”

As a reference, public records indicate that the Hopewell Valley Golf Course located in the VRC zone, is approximately 183 acres.  Assuming the entire site could be development restricted, as many as 61 credits at the Kooltronic site could be obtained at the 3-1 preservation ratio set in the settlement agreement if the Kooltronic owner or developer purchased all of those development rights and permanently deed restricted all of that acreage. To get to the 255 unit maximum, significant lands elsewhere in Hopewell Township would be required.

Others who spoke during public comment expressed concern about the amount of pollution from pesticides and the inherent lack of native plants that are associated with golf courses, making them not “critical environmental resources.” And, to that point, another member of the public requested that the zoning board also weigh the environmental impacts.

While some testimony was taken, no action was taken and the hearing was postponed until next month, April 6 at 7:30pm at the Township Municipal Building, to allow the applicant to amend the application by asking more specific questions in its request for guidance from the zoning board.

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Mary Galioto is the founder, publisher and editor of MercerMe. Originally from Brooklyn, Mary has progressively moved deeper and deeper into New Jersey, settling in the heart of the state: Mercer County. Formerly the author of an embarrassingly informal blog, Mary is a lifelong writer and asker of questions and was even mentioned, albeit briefly, in the New York Times and Washington Post. She holds a bachelor’s degree in English from SUNY Binghamton and a Juris Doctorate from Seton Hall Law School. In her free time, Mary fills her life with excessive self-reflection, creative endeavors, and photographing mushrooms. Mary also works as the PR Coordinator at the Hopewell Valley Arts Council, serves on the volunteer Board of Trustees of the Lawrence Hopewell Trail (LHT), holds a seat on the Hopewell Borough Board of Health, and is a member of the Hopewell Valley Municipal Alliance.

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