Court upholds local conservation zoning

RELEASE: Dec. 19, 2008 – Volume XL, No. 51

As we look back on New Jersey’s 2008 conservation victories, one of them would likely be a recent state Supreme Court ruling reaffirming the right of municipalities to use zoning to limit development in environmentally sensitive areas.

The Hopewell Township, Mercer County, decision reminds us that intelligent planning and zoning is an effective way to preserve New Jersey’s dwindling farmland, open spaces, natural resources and environmentally-significant areas.

Rural Hopewell Township grew rapidly during the 1990s housing boom, adding more than 4,500 new residents in 1,800-plus new homes. But with 70 percent of the township still forest or farmland, the vast majority of residents depend on private wells and septic systems. This is unlikely to change, because the rural nature of the township, combined with its geology and topography, make additional public sewers and water supply lines prohibitively expensive. Every new home, therefore, puts more strain on the capacity of the land to provide clean drinking water and dispose of wastewater.

Recognizing this, Hopewell Township’s governing body prudently directed growth away from the rugged terrain of the Sourland mountain region, and the fertile Hopewell Valley farmland, toward higher density villages.

Back in December 2002, the township established Mountain Resource Conservation and Valley Resource Conservation zoning districts on 78 percent of the town’s land area. Among other things, the zoning changes imposed minimum house lot sizes of fourteen and six acres, respectively, in the mountain and valley conservation zones. These lot sizes were chosen to protect the recharge of aquifers that provide drinking water to township residents, and to allow sufficient area for dilution of nitrates coming from septic systems.

The zoning changes were consistent with the township master plan’s long-stated goals, and consistent with county and state plans. The changes limited development in the largely-forested mountain zone, which contains high value wildlife habitat and wetlands. They also helped preserve prime farmland.

A group of landowners affected by the zoning changes responded with what ultimately became an 11-count lawsuit charging everything from a conflict of interest by one of the members of the Township Committee, to a “taking” by the government, to violations of the federal Fair Housing Act and state non-discrimination and fair housing laws.

Most of the initial counts were dismissed outright in 2006 by Superior Court Judge Linda Feinberg, who found that establishment of the mountain and valley conservation districts “represent a reasoned response to a broad range of legitimate planning objectives embraced by the township and the state."

The plaintiffs appealed, and this past August the Appellate Division of the Superior Court of New Jersey upheld the zoning changes. The six-year-old case was finally put to rest when, in late November, the state Supreme Court decided it will not hear the appeal.

Hopewell Township officials recognized the natural constraints of their water and soil resources and proactively sought to limit development based on those constraints. It’s encouraging that New Jersey’s courts have affirmed they will support towns that do the right thing in the right way for the right reasons.

For more information on the decisions, go to Hopewell Township’s website at http://www.hopewelltwp.org/document_library.html. And I hope you’ll contact me at info@njconservation.org, or visit New Jersey Conservation Foundation’s website at www.njconservation.org, for more information about conserving the Garden State’s precious land and natural resources.

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