Owners of the 100-acre property commonly known as the Kooltronic tract, Pennwell, LLC and the Gadbey Organization, in the Marshall’s Corner area of Hopewell Township (near the former Pennytown) appeared before the Hopewell Township Zoning Board of Adjustment board as a continuation from the hearing held in March 2016. As previously reported here on MercerMe, the property owners posed a question of interpretation of language in a deed restriction as one further step toward potential development on the Kooltronic property.
For background, see “Paving the Way for 255 houses in Hopewell: Kooltronic ZBA Hearing“
The applicant is specifically looking for an interpretation of a section (Section 17-172 J3) of the Township’s Land Use and Development Ordinance so that it may draft deed restrictions. According the the 2006 court approved Settlement Agreement, the owner of the Kooltronic tract can develop 14 units on property, 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.
However, the property owner is permitted to increase the density on its property — 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. The ultimate total could be approximately 255 units.
At last week’s Hopewell Township zoning board meeting, the board attempted to undergo an analysis of determining the definition of “resource” — specifically whether private golf course would satisfy the definition of “resource” for the purposes of a “resource conservation.” Section 17-172 J3 of the Township’s Land Use and Development Ordinance addresses “noncontiguous cluster development” which provides a mechanism for the transfer of development potential from properties in the MRC and VRC Districts to a designated hamlet in the VRC-HLI District. “The intent of this provision is to provide an opportunity to create an alternative development opportunity that furthers the goals of resource conservation in the township, while also providing a development form that supports the goals and policies of the master plan.” (Bold added to highlight contested portion of ordinance). The limitations set forth in the ordinance: “The owner of the land from which development potential has been obtained uses authorized and enumerated in the sale or conveyance of the development potential.”
While these are questions of law and interpretation, it is a decision within the statutory purpose of the board, explained the zoning board’s attorney, Kevin Van Hise. “These are questions of law not fact because nothing is proposed,” said Van Hise. “The applicant has presented the board with certain positions and then board needs to answer whether the ordinance covers what is being proposed.”
The board was instructed to first look at the plain language of the ordinance and, if that was not clear, then the board needed to assess the purpose of the ordinance, which is also contained the ordinance. “If the intent of the ordinance provision is to protect all the things identified, then does stripping the development rights on that properties further the goal and intention? Were the drafters trying to prevent residential development? If yes, then a golf course would be within this. If your interpretation is that resource conservation is virgin land with no development, then that would answer it,” explained Van Hise.
Zoning board member, Marylou Ferrara, suggested that the board first assess what a “resource conservation” is and which inform the answer to the rest of the applicant’s questions. The board also discussed with its advisors, including Township planning Frank Banisch, who questioned whether the the answer might already be clear within the ordinance and that the board may not need to look further in the master plan for guidance.
“The Mountain and Valley resources conservation zones are meant to protect environmentally sensitive lands of the mountain and farmlands in the valley,” said Banisch. “You would think the theory in the master plan would want you to distinguish between these. Does the golf course qualify as a developed facility? It is hard to say but it is not conservation — it is active recreation. Ideally we would like those open areas to be wooded or farmed.”
“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 Ferrara. “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.”
In agreement, board member Joanne Lockwood stated, “A golf course is not resource conservation — it is the exact opposite. A golf course uses a lot of our natural resources — a lot more than residences on 14 acre lots. I wouldn’t put a golf course as a resource conservation.”
To further educate and guide the zoning board, Michael Pisauro, the policy director for the Stony Brook-Millstone Watershed Association, offered the following:
“The ordinance talks about conservation of resources and other sections of that very same zoning code talks about open space — those are two different terms used for a purpose and not used when talking about transfer of development rights. We are not talking about open space, otherwise the drafters would most likely have said ‘open space.’ As Ms. Ferrara mentioned, continuous wooded tracts and farm tracts apply in the ordinance because those provide the greatest recharge for the aquifer. We have to balance the checkbook to increase the density, Preserving something that is there already means you are not gaining anything. You are making things less balanced.
The master plan differentiates between natural resources and open space. If they were the same, they would have been dealt with under the same section of the master plan. By interchanging the definitions of open space and resources, you are not meeting that intent.
Golf courses use a significant amount of water and apply insecticides and pesticides. That is not the intent of this ordinance just as an abandoned parking lot does not protect the recharge. Any interpretation that you take today has to take this into consideration. The mixing of open space and conservation is apples to oranges. The ordinance uses the terms in different sections. Golf courses is a recreation open space but not resource conservation.”
Newly named chair of the zoning board, Frank Klapinski, who is replacing Bill Connolly, expressed an interest in being better prepared on the legality of the issues.
“I don’t think I have the ability to judge this tonight,” said Klapinski. “I would be in favor of tabling this and getting this straightened out in my mind.” To that point, Van Hise will be providing the board with what is and what is not admissible when making this decision.
“The matter will be postponed to the next meeting so we may get better guidance from the zoning board attorney,” explained Klapinski.
The hearing will continue at a special zoning board meeting on Thursday May 19 at 7PM at the Hopewell Township Municipal Building Auditorium at 201 Washington Crossing-Pennington Road, Titusville, NJ.