As previously reported in February on MercerMe, owners of the “Kooltronic tract,” in the Marshall’s Corner area of Hopewell Township (near the former Pennytown), filed an application with the Hopewell Township Zoning Board of Adjustment concerning the 100.7 acre property. The applicant, Pennwell, LLC and the Gadbey Organization, seeks the Township’s guidance to interpret language set forth in the 2006 Settlement Agreement between the property owner and Hopewell Township which contains a provision for the “transfer of development rights” (TDR) where more dense development is permitted through the preservation of land elsewhere. This would be the first step in the development of the Kooltronics property.
For all info you could ever want on the Pennytown and Kooltronic properties, please see the portion of the Hopewell Township website designated to these properties.
According to the 2006 court approved Settlement Agreement, the owner of the 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 applicant is specifically asking for an interpretation of Section 17-172 J3 of the Township’s Land Use and Development Ordinance. This section, which addresses what are known as “noncontiguous cluster developments,” 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,” according to the code (bold added).
Owners of the Kooltronics tract sought to determine whether the development rights of a private golf course, specifically the Hopewell Valley Golf Club, would satisfy the definition of “resource” for the purposes of a “resource conservation.”
The board began, at the April hearing, to attempt to define “resource conservation” and was instructed by its attorney, Kevin Van Hise, to first look at the plain language of the ordinance and, if that was not clear, then assess the purpose of the ordinance. The master plan could also serve as a guide for the Township’s intention for development and 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.”
There was significant discussion at the April meeting as to whether a golf course was already developed land and therefore would not be considered a “resource.” The board also discussed with its advisors, including Township planner Frank Banisch, who suggested that the answer might already be clear within the ordinance.
“The Mountain and Valley resources conservation zones are meant to protect environmentally sensitive lands of the mountain and farmlands in the valley,” said Banisch. “Does the golf course qualify as a developed facility? It is hard to say but it is not conservation — it is active recreation.”
“The analysis is simple, then. I don’t think a developed parcel, like a golf course, is a resource to preserve. It maybe open space but not a resource in terms of the ordinance,” said zoning board member Marylou Ferrara at the April meeting. “The purpose of this was for an opportunity to preserve large parcels to get a bonus. Any definition a golf course is a developed piece of property — every inch of the property has been developed. I don’t think we get to decide what we prefer. I’m bound to what is actually meant by the words on the page. Whether I like golf courses are not is not the issue but just whether this is a conservation use.”
The issue was continued to the May 19 zoning board meeting at the request of the board. At that meeting, the board began by allowing the applicant to reintroduce the issue and then permitted public comment and questions from those in attendance.
“You are increasing density without changing the use,” said Michael Pissauro, policy director at the Stony Brook-Millstone Watershed Association. “The ordinance that we are talking about talks about the conservation of resources. It does not talk about preservation of open space… The clustering of development talks about preserving open space in that cluster but with regard to transferring development rights in non-contiguous, you get a density bonus for preserving critical resources.”
“This board is making the question way more complicated than it needs to be,” said Hopewell Township resident and former mayor Harvey Lester. “Is the board handcuffed by the questions asked by Pennwell Holdings? In order to have more than 14 houses on their acres, they need to preserve stuff and if they preserve enough stuff they get to build 265 houses. The crux is the what is the “stuff?” Almost all of us are on ground water. This down zoning is all about preserving water… a golf course is already being used. And the Township made a deal: something for something. What did the Township get in return? Protection. You need to remember you are listening in an adversary proceeding.”
Another member of the public spoke regarding his concern for the decreased water in the aquifer in the Marshall’s Corner area.
At this point, the board discussed and deliberated. “Based on the intent, paired with the plain language that talks about development and resource conservation, we know that the Township did not want to give bonuses for development — it was to limit excess development while promoting compact development. This is not a gift. It is in exchange for something valuable: resources as defined in the master plan. And that is not a golf course,” said Ferrara.
“I think that Ms. Ferrara hit the nail on the head,” said Banisch. “The issue comes down to that we forego development and set land aside from being developed. The fact is that the land that is already developed. The water question that comes into play is not material for this application but we cannot ignore the water implications when we talk about conservation.”
The applicant had also asked the zoning board to define whether agricultural use would be considered a resource conservation. To this, the board discussed whether a golf course and a farm are materially different and determined that the master plan clearly identifies agriculture and farming as a defining characteristic of the community which would be important to encourage.
To the 4 questions the applicant posed to the zoning board, the board voted accordingly and unanimously. Does ___________ qualify as a resource conservation for the purpose of noncontiguous:
- Undeveloped open space? Yes.
- Public recreational facilities such as ball fields? No.
- Land with environmentally constrained features? Yes.
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