January 1, 1900

by Thomas F. Carroll, III

Zoning maps, waste water management plan maps, "Big Maps", "Red Maps"-it's enough to make builders dizzy. Finding developable land in New Jersey has been difficult for years now, and it becomes ever more challenging with each passing year. But builders can maximize their prospects if they become more proactive and try to stay ahead of the curve. This article touches upon some of the ways in which the ever-shrinking inventory of buildable sites can be identified.

Zoning Considerations

It is, of course, clear that local zoning is the paramount consideration. Studying zoning maps and master plan maps is a critical first step in determining the likely yield of land. Examining the existing local maps is straightforward enough, but the analysis should not begin and end there.

For example, the savvy builder will be familiar with the municipal documentation on file with the Council on Affordable Housing (COAH). Sometimes a review of municipal fair share plans and housing elements will reveal clues as to the manner in which certain sites may be (or should be) zoned to meet the town's Mount Laurel obligation. A given town may have advised COAH that it wishes to alter its fair share plan, or the fair share plan may contain clues as to the manner in which the town plans to meet its "third round" Mount Laurel obligation. In this regard, it must be noted that COAH is now over three years late in releasing its third round lower income housing obligation numbers, and such figures are expected in the near future.

Even if a municipality's COAH documents yield no clues on the manner in which satisfaction of the third round obligation is proposed, it is possible to roughly estimate third round obligations using COAH's existing fair share methodology, and analysis of the town's vacant land inventory, sewer service area maps, etc., could suggest likely candidates for rezoning.

In addition to zoning maps and COAH documentation, the local master plan maps, open space maps and the like could provide invaluable information. Perhaps a master plan land use map recommends a favorable rezoning that has not yet been implemented through zoning. Or it may be that certain sites are depicted on a municipal open space map as candidates for acquisition, which could lead the builder to unfavorably consider (or discount) vacant tracts of land. Other local maps, such as sewer and water service area maps, must also be carefully considered (as discussed further below).

State Mapping Policies

Builders had enough to worry about with the State Development and Redevelopment Plan (State Plan). We are now starting to see different iterations of a statewide planning map, including the infamous "Big Map"/ "Red Map." On any given day, a visit to the NJDEP's website may reveal a new statewide map. How to make sense of this chaos?

There are two primary themes to all of the statewide planning maps coming out of Trenton. The first is that development should be channeled to the urban areas. While there is certainly nothing wrong with this in concept, the reality is that vacant land in such areas is in short supply, and much of it will require some considerable mitigation measures before it could be utilized for residential development. Readers are referred to the article in this issue concerning such brownfields/redevelopment issues. Additional hurdles include antiquated or inadequate infrastructure, as well as marketing problems.

The second primary theme of the statewide planning is that new development should be encouraged (or at least not discouraged) in those suburban areas where public sewer and water are available. Again, the concept underlying this theme is one thing, but the reality may be quite another. Much of the land already being served with such infrastructure is already developed, and finding vacant sites with readily accessible sewer and water is problematic at best.

The statewide planning being done in Trenton is clearly in a state of flux, and the same must be carefully monitored by those seeking to identify development opportunities. The two themes discussed above must be kept in mind as one tries to predict what may ultimately come out of the statewide planning being undertaken by the Office of Smart Growth (the State Planning Commission) and the NJDEP. Part of that exercise involves reviewing the various sewer and water plans, and considering how they may be amended.

Sewer and Water Plans

Sewer and water plans, while always important, are becoming even more critical when seeking to identify developable land. As noted above, the State's ever-evolving plans focus on the availability of such infrastructure (especially public sewer).

With respect to wastewater planning, builders must become even more familiar with water quality management plans and wastewater management plans. Such analysis enables one to identify those lands with readily accessible sewer, those lands that are within sewer service areas requiring additional sewer-related infrastructure, and those lands that are to be served via on-site wastewater disposal techniques, such as septic systems.

Those sites with readily accessible public sewer facilities, while usually most amenable to development, may become even more precious now that the State may consider limiting "easy" development to such areas. As to those lands shown on planning maps as areas slated for not-yet-available public sewer, thought must be put into the questions of whether there is a costeffective means to bring sewer to the site, and whether it is likely, given state policies, that such lands will be removed from the sewer service areas.

Any development proposal involving septic systems or other on-site wastewater technique requires a careful study of soil maps and consideration of whether such lands actually have environmental or other features that may lead the State to deem the area "red" or "yellow" for permitting purposes, even though no one is quite sure what that means in practical terms.

The provision of water, once considered nearly a given, also requires detailed analysis in the present regulatory climate, beginning with a review of the water franchise plans and maps. In addition, engineers must carefully study the water situation in any given locale, including an analysis of the existing water supplies, the likelihood of expanding those supplies, moratorium issues, and the like.

Conclusion

Any article such as this can only begin to scratch the surface of the many considerations now facing builders seeking to find developable land. However, it is clear that, upon examination of the plethora of "off-the-shelf" planning maps now available, and upon consideration of the various state policies at play, builders can identify such development opportunities. Indeed, it is becoming more and more critical to identify those opportunities before they arise by anticipating what will likely happen in the regulatory world. A daunting task, to be sure, but one which is imposed upon builders by the willy-nilly, multi-layered nature of planning in the State of New Jersey.

Thomas F. Carroll, III, also a partner of Hill Wallack, is a member of the firm's Land Use Division. He serves on the NJBA's Land Use and Planning Committee and its Site Improvement and Infrastructural Standards Committee. The Recording Secretary of the New Jersey State Bar Association's Land Use Section, he concentrates his practice in the development application process and the litigation required in the course of land development.