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Save Hamilton Open Space

P.O. Box 2594
Hamilton, NJ 08690
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Delaware and Raritan Canal Commission Threatened

The D&R Canal Commission was established in 1974 with a mandate to protect drinking water for 1.5 million NJ residents. Now Gov. Christie wants to eliminate it. The commission oversees the 70 mile long linear state park - one of the state's most popular and heaviest used parks. The commission pays its own way. Funding comes from developer fees. It's a state and national historic district and an important wildlife corridor. Its regulations ensure that developments do not impair the quantity and quality of water entering the canal. Unless the governor acts to allow the commission to hire new staff, the commission's doors will close June 1. 

Please contact Gov. Christie at (609) 292-6000 or state.nj.us/governor/contact and urge him to keep the D&R Canal Commission and authorize immediate hiring of replacement staff.

You can also share your support for the Canal Commission with the chairs of the New Jersey Senate and Assembly environment committees: Sen. Bob Smith, (732) 752-0770; and Assemblyman John McKeon, (973) 275-1113, who recently convened a hearing on this issue. You can e-mail them at njleg.state.nj.us/members/legsearch.asp.


Klockner Woods: Four Years and Counting


Point of View

The contentious issue about Klockner Woods is the price. Everyone agrees the 50 acres should be preserved, but everyone has a different opinion about the true price. The key word is “opinion”.

The fact is that no one has bothered to do the necessary studies to determine the true market value. We have a wetlands report but that’s only one factor and it was completed after the deal was made. In addition, there’s the water table, floodplain, hydrology, tests for contaminants, DEP rules, Hamilton ordinances and more to consider. Save Hamilton Open Space sent a detailed packet of these issues to all concerned parties in September 2006 in an effort to have the true market value of the land determined. So far there has been no response.

In addition, no one has appeared under oath to testify about the factors that determine land value. There’s been no cross examination of witnesses. No evidentiary hearings. No development plan has ever gone before the Planning or Zoning Board to determine the lot yield which is the major factor in determining the price, notwithstanding Fieldstone’s contention and the judge’s agreement that lot yield was never a factor in the price negotiations

If lot yield was never a factor then why did Fieldstone change their original application from 256 low income senior rental units to 52 market value single family houses? And if lot yield was never a factor then why was their first offer of $6,150,000 based on 52 lots valued at $150,000 each? Further, Judge Feinberg’s opinion is replete with references to lot yield. In fact the number was at one time or another 27, 40, 41, 44, 48 or 52. And now there is supposed to be a new, never before divulged secret study with yet another number. (News Story) Lot yield is obviously THE factor in determining the land’s value.

It appears from reading the Judge’s opinion which includes a lengthy timeline of developments over the past four years that in the end what should have been a negotiation based on facts became not much more than horse trading. The two sides each made an initial offer, then split the difference.

Hamilton started at 27 lots at $46,000 each. Fieldstone countered with 52 lots at $150,000 each.

Hamilton eventually moved up to 41 lots, essentially spitting the difference.

On the lot value side, Hamilton started at $46,000 per lot. Fieldstone wanted $150,000.

Again, they split the difference at $100,000 per lot.

And all that negotiation was based on what? The wetlands study? No.

The judge signed her consent judgment June 15, 2005 which set the price at $4.1 million, or 41 lots at $100,000 each. Resolution 05-390 to hire Van Note Harvey to do the wetlands study was passed two months later on August 18, 2005. So, according to the timeline contained in Judge Feinberg’s written opinion, the deal was made prior to the study.

So just what was the basis for the agreement?

Whatever it was, it wasn’t the fair market value of the land. That’s what is missing in this tired and frustrating saga. We are mired in a swamp of opinion (pun intended), and we need to get to the high ground of facts, science and rationality.

If the Council appeals and wins then it’s likely Hamilton will again be at the negotiating table with Fieldstone. The public’s representatives need solid evidence about the land’s value to strike the best deal for Hamilton. Maybe the land is actually worth $4.1 million, or maybe it’s worth a lot less, or maybe it’s worth even more. The point is that no one knows the value. The Township Council doesn’t know. The Mayor doesn’t know. DEP doesn’t know. The judge doesn’t know. Save Hamilton Open Space doesn’t know and you don’t know. Strongly held opinions are not facts. Let’s do a real and complete study and find out the real value, end this bickering and get on with what we all want – saving Klockner Woods.

 


Rolling Acres Neighborhood Opposes Development

Photo of Rolling Acres NeighborhoodResidents of Rolling Acres are concerned over two planned developments on five acres of woods along Rt. 33 between Crest Ave and the Nitti Subaru dealership.

Neighbors waged a successful battle against a Super Wawa planned for the site. Now the 100 year old woods, the last remnant of eastern hardwood forest along Rt. 33, are threatened by two strip malls and a bank. The neighborhood would like to see the woods preserved as a native species arboretum and neighborhood park. That will require public acquisition of the threatened woodlands. At a minimum the neighbors seek to preserve as much of the existing woods as possible.

They fear that the developments, which will destroy the vast majority of the forest, will cause flooding, devalue property, create more traffic on Route 33, and degrade the quality of life of the area by taking away this last small bit of open space on Route 33.

Also, that section of Route 33 is more residential / office in character vs. the endless string of strip malls west of Yardville-Hamilton Square Rd. and east of the Nitti Subaru dealership. Residents also contend that with adequate retail outlets and services and many vacancies along Route 33, the town does not need another string of stores.

Point of View

More than a dozen neighbors along with their lawyer and expert witnesses attended the Feb. 8 Planning Board meeting when the developer, Anthony Palagano was supposed to present his application.

At 9:30pm, after waiting patiently for two and half hours, residents heard the Stark & Stark lawyer representing Palagano announce that he had decided to carry the application until the Feb. 22 meeting.
He cited illness of his experts who were unable to attend the meeting.

Certainly he knew before 9:30pm that his experts wouldn’t be present. He could have requested the delay earlier in the evening instead of driving up residents’ costs for their lawyer and experts and inconveniencing them. Further, he didn’t respond to requests earlier in the afternoon by the resident’s lawyer, who got out of her sick bed to attend, to postpone the hearing.

Since the attorney knew long before 9:30 that he would not proceed, Stark & Stark should reimburse legal and other costs that were incurred solely as a result of the lawyer's refusal to divulge his plans early in the evening.

This sort of reprehensible tactic is used to wear down and stifle opposition from the people who will be most affected by the development and who have a right to more respect than what was afforded them. It’s unethical, but sadly it may be legal. The law should require automatic dismissal of an application whenever a developers' lawyer engages in such tactics. The Planning Board should at the very least reprimand such behavior. Ultimately the law that lets developers pull stunts like that should be changed.


SHOS joins effort to preserve NJ's first railroad.

Chartered in 1832, the Camden & Amboy (C&A) was the first railroad chartered in NJ and the third in the U.S. Conrail no longer uses a 5.7 mile stretch of the line that runs parallel to Rt. 130. Most of it is in Washington Township, but a portion is in Hamilton. The entire length of the line is eligible for historic preservation.

Washington Township has plans to create a redevelopment zone along Rt. 130 and favors abandonment of the land by Conrail. The right of way would be sold to a developer(s) and become part of adjacent properties. That would be the end of the rail corridor.

SHOS favors preservation of the right of way and transforming it into a bike-hike “rail trail”, essentially a linear park. This could be incorporated into Washington’s development plans and become an attractive recreational feature and even contribute to economic development and increase property values. It is adjacent to the new Washington Town Center and would be a valued recreational amenity for those residents.

Hamilton’s Historic Advisory Commission, the NJ Sierra Club, the C&A Trail Conservancy, the Pennsylvania Railroad Technical and Historical Society all support preservation of the right of way. Mercer County may be interested in preserving it.

Further, via a “rail banking” option, if the need ever arose, the right of way could be converted back into a passenger or freight rail line.

There are many such “rail trails” around the country. The Rails to Trails Conservancy is a national organization that supports this type of re-use of abandoned railroads. (link to www.railtrails.org).

The current ruling by the Surface Transportation Board, the federal agency that rules on rail line abandonment’s, provides 180 days for someone to purchase the 5.7 miles of the right-of-way.

The 180 day time period will expire June 5, 2007.


NJ Supreme Court to Hear Levin Center Case

Hamilton’s Planning Board denied the Levin application to build a shopping center on 30 acres at the corner of Klockner and Nottingham. One reason was the adverse impact of traffic the center would generate on the surrounding neighborhood, particularly since there is an elementary school across the street from the proposed center.

Levin appealed the board’s decision and won. They cited a particular case that is used frequently in similar situations around the state. It’s the so-called “Dunkin’ Donuts” case in which a court ruled that traffic impact on neighborhoods could not be used to deny an application. SHOS is asking the NJ Supreme Court to uphold the Planning Board’s original denial of the application by ruling that Dunkin’ Donuts is wrong and therefore the Planning Board was right to consider traffic impact.

We received notice Oct. 24, 2006 that the New Jersey Supreme Court will hear our case. SHOS is represented by Lieberman and Blecher of Princeton, NJ.


No Decision Yet on Laura Ave.

SHOS appealed a court ruling on the Laura Ave property that would have allowed the developer to proceed without Hamilton Planning Board approval of a storm water management plan. The Planning Board said that NJ DEP would pass judgment on the storm water plan, and that they (the Planning Board) were not required to make the developer demonstrate compliance with the new storm water rules. The Appellate Court remanded the issue back to the Hamilton Planning Board, saying a storm water plan must be presented at a Board hearing. This allows public examination and comment on the plan.

At the same time the Appellate Court did not make a clear ruling on whether or not NJDEP has the authority to rule on compliance with storm water rules when no NJDEP permit is required. This is the case with the Laura Ave. development application.

SHOS agues that Planning Boards are responsible for holding developers accountable for their storm water plans, and that planning boards cannot simply pass that responsibility off to NJDEP (which doesn’t have the staff to review the thousands of applications it would receive anyway).

Therefore, SHOS is asking the NJ Supreme Court to decide who is responsible for reviewing storm water plans. The Court will determine whether or not to hear our case.

The property is 7.7 acres at the corner of Laura and Evelyn Avenues. A 16 house development, plus a retention basin is planned for the site.


NJ Appeals Court Rules in Favor of Levin Properties

The NJ Appeals Court ruled in favor of Levin Properties in a ruling published on the Internet on July 12, 2006. The ruling was against Hamilton Township and Save Hamilton Open Space. This opens the way for Levin to build their proposed 200,000 square foot shopping center on 30 acres of land at the corner of Klockner and Nottingham.

Hamilton Township and Save Hamilton Open Space had appealed the Superior Court decision that overturned the Hamilton Planning Board's denial of Levin's application.

The Appeals Court upheld the Superior Court ruling.

Read the complete decision

Read the Trenton Times article on the decision


There is one last legal option to stop the shopping center - the NJ Supreme Court. The Planning Board, at the urging of Mayor Gilmore, voted to appeal the decision to the NJ Supreme Court. Save Hamilton Open Space may join that effort.

A Supreme Court review is requested, not automatically granted.

Read the Trenton Times article on the Supreme Court (see the last paragraph)

Highlights of the Decision
"...the (Planning) Board's decision was arbitrary, capricious and unreasonable."

DRAINAGE -

"...water would be channeled into designated properties such as Hamilton Lakes..."

"The stormwater management plan was intended to be consistent with the township, county, and state environmental protection requirements. (Note that it wasn't deemed compliant; there was only the intention of compliance. NJ law says developers must "demonstrate compliance" [to the Planning Board] with the regulations. Emphasis added.)

TRAFFIC -

" '...a planning board (under Municipal Land Use Law)...is without authority to deny site plan approval because of off-site traffic conditions.' "

From Elizabeth Dolan, a "traffic expert": "Klockner is currently used by 9800 cars each day, and if the proposed ingress-egress to and from the site was permitted, the sum would be augmented to 12,000 each day. She concluded that Klockner would not suffer from adverse effects."

NOISE -

"...Levin provided extensive and undisputed testimony that the noise level would not fall outside of the parameters outlined in the ordinance."

ORIENTATION OF THE CENTER -

The court ruled that Hamilton's ordinance regarding "highway-oriented businesses" was "a description of intended uses rather than a substantive requirement of the direction a building must face." This permits the center to face Klockner School.

SMART GROWTH -

" 'Smart growth is 'well-planned, well managed growth...promotes redevelopment and urban revitalization, while preserving open space...and environmental resources...' "

" 'Smart growth areas...protect the character of existing stable communities.' "

Smart growth should "...discourage development where it may impair or destroy natural resources or environmental qualities."

The appeals court said, "We do not discern a violation of these goals in this case."

PUBLIC COMMENT INCLUDED IN THE DECISION -

None.



Klockner Woods Wetlands Report Not Final

The long awaited wetlands report commissioned by Hamilton Township was recently completed and submitted to NJDEP for verification. But DEP returned it to Hamilton’s consultant, Van Note-Harvey, for what seemingly are minor revisions. When it’s finally verified by NJDEP, the department will issue a Letter of Interpretation or LOI that officially determines the extent and type of wetlands on the property. That will help determine the amount of buildable land, which should help determine the real value of the property.

The Van Note-Harvey report did not indicate other potentially important features on the property such as the 100 year flood plain line or the water table level. Development is prohibited within the 100 year floodplain (plus a 75 foot buffer) per Hamilton’s Stream Buffer Conservation Zone ordinance. Creation of stormwater basins are affected by the water table.

Save Hamilton Open Space has always advocated preservation of the property at a fair price. That has not changed. This latest study will help determine the fair market value. Once that's done, we urge Hamilton to move forward to purchase the property and preserve it as a wooded "passive recreation" site as recommended in Hamilton's Open Space and Recreation Plan, and as supported by 1,200 people who signed a petition in favor of preservation, and as supported by a Hamilton Council Resolution.

View and compare the two wetland reports:

Old Klockner Woods Wetlands Study – Completed by owner/developer Fieldstone Associates' consultant in 2002. Includes a buffer around wetlands.

New Klockner Woods Wetlands Study – Completed by Hamilton's consultant, Van Note-Harvey, in 2005. Does not include a buffer around wetlands.

More
Newstory

Two footnotes:

* The date on the new study is August 9, 2005. We understood that the new study had to wait until the spring of 2006 to be completed due to some unique environmental factors. Hamilton's application for NJDEP verification was dated April 2006. The dates are obviously out of sync. We invite an explanation

* On Oct 25, 2005, Hamilton announced it had changed its position from one of preservation to one of working with Fieldstone to develop the property. The announced plan was for 100 age-restricted townhouses and possibly ball fields. Hamilton's Open Space and Recreation Plan calls for preservation as a passive recreation (natural habitat) tract. To our knowledge that plan did not progress beyond the initial discussion stage.


Goodbye Dey Farm

Construction recently started on the 232 acres of the former Dey Farm. Forty three houses will be built there. The project is located on both sides of Old York Road in the southern part of Hamilton. The area was recently rezoned to permit fewer houses, but this project was approved prior to the rezoning. Had the new downzoning ordinance been passed last February when it was introduced, Dey might have seen less intensive development, with a large tract of open space preserved. Inexplicably, the ordinance was delayed several months, which allowed the Dey development to proceed under the old zoning. No substantial attempt, to our knowledge, was made to save Dey Farm.

Photo of former Dey Farm where construction is beginning Photo of former Dey Farm where construction is beginning Photo of former Dey Farm where construction is beginning Photo of former Dey Farm where construction is beginning

The adjacent Schisler Farm will be next. See the following story.


Goodbye Schisler Farm

The Hamilton Council passed the Development Agreement at the June 6, 2006 meeting that allows work to begin on 52 houses on the 180 acre Schisler Farm. The farm is located on Sawmill Road in the southern part of Hamilton.

Approximately three years ago Hamilton’s Planning Board denied the Schisler development application and the case was taken to court. After lengthy litigation and a court order, the developer won. The Development Agreement was only the final, and seemingly irreversible step, in a contentious process.


Statement:  NJ is the most densely populated state. It is the 10th in US population, but the 5th smallest state with only 7,400 square miles.


Hello New Road Through Farms

Together the Dey and Schisler developments will cut a swath between preserved farms that lie on either side of the new housing tracts. In addition there’s a plan – part of Hamilton’s Master Plan in fact - for a road to be built partly adjacent to, and partly through, the Schisler and Dey developments. It would connect Iron Bridge Rd. with Merrick Rd and would become an access to Hamilton Marketplace for new developments in Burlington County.

Part of the agreement worked out between Hamilton and the Schisler developer calls for $150,000 to be paid by the developer to the township, presumably to build the road, or part of it anyway. (The road will cost many times more than $150,000.) Interestingly there’s no requirement to specifically dedicate the money to building the road.

There was a lengthy discussion about the road at the June 6 council meeting. Most people spoke against its development, and at the very least wanted the road “fund” to be increased so taxpayers would not have to pay for it. But the die was cast and the fund remained unchanged.

There are major obstacles to building the road. Perhaps the most significant is that it would traverse wetlands and a tributary of Doctor’s Creek. Hamilton will need to go through the process of getting a permit from NJDEP.

Alternatively “stub roads” were discussed at the council meeting. The notion is that a road would go from Sawmill Road into the development and then stop before it reached the wetlands. Perhaps another stub would come from the other direction.

Save Hamilton Open Space advocates no road. It will degrade wetlands, increase traffic in Hamilton and further encourage the suburbanization of our farmbelt – an area the township is seeking to preserve via the new RRC ordinance. The road would contradict the intent of the RRC.


RRC Zoning Challenged in Court

The RRC or so-called "downzoning" creates special zoning in the area of Hamilton generally southeast of Rt. 130. It is designed to lower density (the number of houses on a given plot of land) and to preserve the rural character of the area, while still allowing some development to occur. It became law November 24, 2005. Developers have challenged the validity of the RRC by filing a suit to overturn it. This would permit much denser residential development and severely decrease the amount of open space in Hamilton's farmbelt. Save Hamilton Open Space has joined Hamilton Township to defend RRC. Details on the RRC


Beautiful New Hiking Trail Opens

Mercer County recently announced the opening of a new hiking trail to the top of Mercer County's highest point, Baldpate Mountain. It's a beautiful hike through a forest with a spectacular view at the end. Take Route 29 north past Washington Crossing. Turn right onto Fiddlers Creek Road. Look for the iron gate on the left just off Rt. 29. Parking is very limited. The trail is to the right just inside the gate. Look for blue "trail blazes".
Map

Save Hamilton Open Space P.O. Box 2594, Hamilton, NJ 08690 | 609-273-9173 | Info@SaveHamiltonOpenSpace.org
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