Judge says New Jersey towns can't force open space

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Judge says New Jersey towns can't force open space

By MICHELLE J. LEE Staff Writer, 609-272-7256

Published: Tuesday, June 24, 2008

Municipalities cannot create laws forcing housing developers to save open space, build playgrounds and baseball fields, or pay for such upgrades. But they can still negotiate with builders to get them.

Appellate Court Judges Michael Winkelstein, Joseph Yannotti and Laura LeWinn said they understand why local officials want developers to help preserve land and provide recreational facilities. But state land-use law limits municipalities' authority to require water, sewer, drainage and street improvements and set aside land within planned developments for open space and recreational areas, the panel said in a ruling released Monday.

The decision was a response to lawsuits filed by the Builders League of South Jersey against Egg Harbor Township and the New Jersey Shore Builders Association against Jackson Township in Ocean County. While the ruling specifically addresses Egg Harbor Township and Jackson Township, the decision could have a direct impact on builders and planning boards throughout the state.

Representatives of the building organizations were pleased.

"I think the court honed in on the central part of this argument: legislative intent. If the (state) Legislature intended recreation fees to be in the law, they would have done so," said Rick Van Osten, executive director of the Builders League of South Jersey, which represents 650 developers and other related companies in southern New Jersey.

Van Osten and Paul Schneider, an attorney for the New Jersey Shore Builders Association, also said the ruling could benefit new homebuyers because developers would not have to include the recreation and open space fees in housing costs. "The old adage goes there is no such thing as a free lunch. When you're tacking on these so-called fees, you're essentially adding to the price of housing," Schneider said.

But some politicians, planning board members and environmentalists are concerned the decision could lead to overdevelopment and overcrowded parks.

Egg Harbor Township Planning Board Chairman James Garth was upset by the ruling. He said that while some builders care about the local community and the impact the development will have on the neighborhood, others just want to build homes, collect their money and get out.

"We want open space. If you build 600 houses, we want them to the provide some kind of playgrounds or recreation contributions," he said. "It's not asking a lot of them, and they're not putting out a lot per house. They're charging enough (money) for them."

"This whole lawsuit's about money, and builders don't want to take their responsibility to build parks or provide (recreational) opportunities for their residents to enjoy," Township Administrator Peter Miller said.

Colleen Mahr, president of the New Jersey Conference of Mayors, said she believes it is fair and appropriate for local governments to ask developers to make contributions to preserve open space and expand recreational facilities, especially since the state budget is going through tough financial times.

Mahr, who also is the mayor of Fanwood in Union County, said "we need every tool in the mayor's economic development toolbox" and she believes the issue of developer impact fees should be re-examined by the state Legislature.

Jeff Tittel, director of the New Jersey Sierra Club, said the judgment will have "a chilling effect" throughout the state because it would undermine good municipal planning and cut back on protecting land and developing public parks.

"It's a pretty disastrous decision when it comes to having places for children to play," he said. "Most towns don't have the money to buy land or to build those playgrounds, and the state's running out of money, so it's going to have a big impact on our children."

Egg Harbor Township Mayor James "Sonny" McCullough said the judgment will not make a large difference in the township because most of the municipality is within the Pinelands Regional Growth Area, which is excluded from the ruling. However, McCullough said the township is already overcrowded from many housing developments.

Robert W. Bruchell, director of the Center for Urban Policy Research at Rutgers University, said the ruling will make negotiations between planning boards and developers more popular. While Bruchell said he supports open space and recreation, state municipal laws are very precise and the only way to change that is for New Jersey to formalize impact fees like other states, such as Florida, Maryland and Virginia.

Monday's appellate division ruling upheld a May 2007 decision by Ocean County Superior Court Judge Eugene D. Serpentelli, who found that the municipal laws that required builders to pay money for open space and recreation funds were illegal.

The judgment also overturns a decision last year by Atlantic County Superior Court Judge Valerie Armstrong. Armstrong upheld two Egg Harbor Township ordinances from 2004 that required home builders to set aside eight acres of open space for every 1,000 residents in a development and build a playground or neighborhood park, or pay $5,600 in lieu of those contributions.

It was unclear whether Egg Harbor Township or Jackson Township plan to appeal the decision. Multiple phone calls to Jackson Township Mayor Mark Seda, and attorneys Michael Gilmore and Tara Garry, representing Jackson Township and Egg Harbor Township, respectively, were not returned.

To e-mail Michelle Lee at The Press:

MLee@pressofac.com