December 1, 2003
Mr. Timothy Touhey
Chairman, NJ State Planning Commission NJ Department of Community Affairs 101 South Broad Street Trenton, New Jersey 08625-0204
RE: State Planning Rules, Proposed Amendments N.J.A.C 5:85
Dear Chairman Touhey:
On behalf of the Board of Directors of the Regional Planning Partnership (RPP), I am writing to provide you with our comments on the referenced regulations. RPP has the knowledge and experience on state planning issues to back up our comments. We have been involved in state planning in New Jersey since we were established in 1968, and we have studied state planning in other states, such as Florida and Oregon. I was active in the first round of cross-acceptance as a state-appointed facilitator (1987-1992), and in the second round as a member of the State Planning Commission (SPC) and Chairman of the Plan Implementation Committee (1996-2001).
This knowledge and experience leads us to understand that the State Development and Redevelopment Plan (State Plan), as adopted, although valuable as a framework for all those involved with planning in New Jersey, is not clear on how consistency of the State Plan with state agency or local plans should be determined. We urge the State Planning Commission (SPC) to withdraw the proposed rule amendments and redraft it to provide standards for consistency and a workable process by which targets will be set and planning contracts agreed. These provisions should be specified either in the rule itself or in a rulereferenced set of guidelines that will clarify the role and expected outcomes of Cross-acceptance and Endorsement. Details of this recommendation are explained below.
As written, the State Plan is not operational. It needs clarity that should be provided by the State Planning Rules. Without clarity, there will continue to be confusion and controversy over what consistency means, what it is reasonable for the State to expect, and what is likely to be effective in meeting the State Plan's goals. This will also result in the continued failure to implement the State Plan, leaving its promise for a better future unrealized.
Follow the purpose of the rule: Nothing in the proposed rule indicates an understanding of the General Plan Strategy of the State Plan (p. 7)-; 2 " Achieve all the State Planning Goals by coordinating public and private actions to guide future growth into compact, ecologically designed forms of development and redevelopment and to protect the Environs, consistent with the Statewide Policies and the State Plan Policy Map." In other words, reverse the ravages of sprawl and put the State on the path that will produce sustainable development. It is this General Plan Strategy that should provide the basis for standards and targets in the State Planning Rule.
It is clear that many of the proposed changes are intended to make it easier for municipalities to engage in both Cross-acceptance and Endorsement and to try to reduce the amount of time these processes will take. Although these are fine goals, the y will do nothing to achieve the goals of the State Plan without setting targets for plans, zoning ordinances and investment decisions to achieve.
Similarly, the rule should not allow the better coordination of plans to be rewarded without referencing what outcomes the coordination will achieve. Coordination without specified outcomes could just as easily make sprawl more efficiently produced!
Provide standards: We feel strongly that the rule as proposed is unacceptable because it lacks specific standards and/or targets as to how consistency with the State Plan will be determined in the Cross-acceptance and Endorsement processes. It is not enough simply to say that local plans must be consistent with the State Plan, as the rule does in several locations, without specifying what consistency shall mean. Determining how consistency will be judged and implementation monitored is, in fact, required by the State Planning Act (52:18A-202.3) and should be implemented through the State Planning Rules.
Differentiate between Cross-acceptance and Endorsement: Statements I have heard from some members of the Administration lead me to recommend that the rule must clarify not only how consistency will be judged, but also the difference between Cross-acceptance and Endorsement.
For example, the State Planning Act is clear that consistency with the State Plan is viewed from the "bottom up" in Cross-acceptance, after the Preliminary Plan is released by the SPC. Crossacceptance is not intended to change local planning, but it is intended to change the State Plan, at least within the parameters of what is required to be effective in implementing the goals outlined in the State Planning Act. Endorsement, however, is intended to guide the implementation of the Plan by state agencies, counties and municipalities. It is clear from the State Plan that Endorsement views consistency from the "top down", at least within the parameters of a mutually agreed planning "contract".
Cross-acceptance is outlined in the State Planning Act as the means to refine the State Development and Redevelopment Plan prior to adoption. The Plan is intended to have in it all the elements outlined in the Act (52:18A-200) and to provide a framework for evaluating other plans (52.18A-202.3) and monitoring implementation. Toward this end, state agencies must provide the data that is specified below in these comments.
In Cross-acceptance, comparison of the Preliminary State Plan with local and county plans is intended to ensure that the State Plan is created on the best knowledge of local conditions and expectations and is responsive to those, within the parameters outlined in the State Planning Act.
Once the State Plan has been adopted, however, Endorsement is the process by which local, county and state agencies establish agreements on actions to implement the plan. In this sense, Endorsement is top-down. The SPC has the responsibility to husband the state's resources and to recommend state investment in areas of the state that they have evaluated as having plans that are consistent with the State Plan.
Endorsement is not mentioned in the State Planning Act. It was established in the second State Plan (2001) to enhance the Centers Designation process, which was established in the first State Plan as the process to agree on implementation, and which proved to have many shortcomings.
Because it is designed to review local land use and infrastructure plans and ordinances for their likely outcomes, RPP sees Endorsement as one of the most important means by which the key strategy -; changing land use patterns -; will be applied. Endorsement can and should be used to determine which plans will result in changing land use patterns to achieve the State Plan goals.
Endorsement must not be used simply to inventory what plans and ordinances are in place or how up-to-date they are. Although it is important to have Natural Resource Inventories and upto- date master plans, if these documents are not implemented through consistent ordinances, they are irrelevant.
Endorsement must not be achieved by having a few new add-ons to the local planning structure. For example, having a transit-oriented development zone or a Transfer of Development Rights ordinance should not be enough to receive Endorsement. Endorsement must only be given for those areas in which all of the plans, regulations and infrastructure decisions will result in significantly changing land use patterns in the pursuit of all the State Plan goals.
Provide balance and information as well as clarity for Cross-acceptance: RPP expects a redraft of the rule to include standards that are comprehensive as well as clear -; they must reflect all the State Plan's goals, not simply its environmental goals. The fact that NJDEP recently ga ve the SPC data from its former BIG Map to inform the State Plan Policy Map adds urgency to this recommendation.
Other state agencies have not provided the SPC with information equivalent to NJDEP's data, nor do they have rules equivalent to those current ly being developed by NJDEP that will be associated with that data. For these reasons, RPP fears that Cross-acceptance will be skewed by stakeholders responding to NJDEP's actions.
With no equivalent information from the other departments to provide a context, and with neither standards nor a clearer process for establishing how changes to the State Planning Map will be assessed as consistent with the State Plan, either in Cross-acceptance or Endorsement, we fear that the Plan developed under the proposed rule will not have the balance expected in the State Planning Act.
The Act declares (52:18A-202.1) that ". . .a. There are many concerns associated with the design and implementation of the State Development and Redevelopment Plan. . . b. Each of the se concerns is an important issue . . . [and] c. . . . are not mutually exclusive and, therefore, a balance among them must be achieved to maximize the well-being for the state and its residents."
It is not RPP's intention to inhibit the use of what is undoubtedly better environmental data than was previously available. But it is data with no planning context. No plan is developed simply by referencing data, and it is certainly clear in the abovementioned section of the State Planning Act that the State Plan is not to be developed that way. Further, the Act declares (52:18A-203) that the SPC shall ". . . adopt rules and regulations to carry out its purposes, . . . and to ensure a process for comparison of the plan with county and municipal master plans, and procedures for coordinating the information collection, storage and retrieval activities of the various state agencies." Accordingly, RPP views the current rule as unacceptable because it does not fulfill either of the declarations in the State Pla nning Act mentioned above.
The State should not embark upon either Cross-acceptance or the Endorsement Process until the various appropriate agencies and authorities have clarified which of the regulatory mandates (e.g., in the Clean Water Act and Clean Air Act, the State Highway Access Code, the Fair Housing Act, etc.) and which of their functional plan goals (e.g., in the NJDOT's and the MPO's Long Range Transportation Plans, the new school construction investment programs, statewide economic development programs, etc.) are consistent with the State Plan. Any inconsistencies must be resolved before the Preliminary Plan is released to Cross-acceptance and should provide the parameter within which local comments should be considered.
These mandates and goals should then be evaluated as to whether they can and should be achieved through changes in land use decisions at the local level. Those that can, should be used as the minimum basis for a consistency determination in Endorsement.
In addition, RPP urges the SPC to ensure that the rule specifies the following actions, to be accomplished before Cross-acceptance process is undertaken, and to be used as the context for evaluating consistency with the State Plan (this list is intended to suggest the kinds of activities needed and is not intended to be exhaustive):
- NJDOL or OSG must provide information on the location and characteristics of the current and projected population (by age and education) and jobs (by type and income).
- NJDCA or OSG must provide information on the build-out of zoning in place today and the expected impacts of that zoning.
- The Commerce Commission or NJEDA must provide information and mapping on the economic engines that are driving New Jersey's future prosperity and their infrastructure, workforce and location needs.
- NJDCA or COAH must provide information on the current and expected location and condition of the housing stock, and the economic and social integration of communities. NJDCA or COAH must provide information on the current and projected need for affordable housing. They should propose rules that will ensure that this need will be met in a way consistent with New Jersey's Constitution and the State Plan's goal of ensuring sustainable economic growth and revitalizing cities and towns as well as the statewide policy of providing the opportunity for economic integration and social justice.
- NJDEP must provide information and mapping on the existing and projected future capacity of wastewater or water systems within the various Planning Areas in the State Plan Policy Map.
- NJDEP must establish measurable standards for improving water quality that will implement state and federal mandates.
- NJDEP must establish the means by which priorities can be set for preserving open space to achieve the needs of water supply and quality, diverse habitats and recreation.
- NJDOT must provide information and mapping on the opportunity for shifting from auto-dependency to other means of transportation.
- NJDEP and NJDOT must establish measurable standards for improving air quality through reducing emissions from mobile sources.
- NJDOT must establish the means by which priorities can be set for establishing intra- and inter-regional transit corridors and servicing these corridors with feeder services.
Establish a process for setting targets: It is only when this data, operational goals and legal mandates have been compiled by the SPC that standards for Cross-acceptance and Endorsement can be developed and clarified. It is only with all this information in hand, that the SPC will be able to compare various plans and evaluate their impact on current conditions, compared to the expected impact of current trends and build-out on various regional systems (economy, transportation, water, air, etc.). Without it, the SPC will have no basis to know whether the plans it is reviewing will achieve the goals and policies of the State Plan.
It is equally important, however, to establish a measurable target in order to monitor the progress toward implementation as the State Planning Act requires in 52:18A-203. Whereas the goals for the State Plan are set in the State Planning Act, and the policies and objectives are already set in the State Plan, the targets must be developed by the SPC and added to the Preliminary Plan after the above state agency data and mandates are collected and differences resolved. That will provide clarity for Cross-acceptance.
Then a process for developing targets to be met in Endorsed Plans must be specified in the State Plan Rule. These targets will be used as the basis for monitoring implementation and should be established by a open, fair and balanced process that reflects statutory mandates (such as water and air quality standards) as well as constitutional mandates (such as the Mt. Laurel Doctrine). RPP proposes a regional planning process to accomplish this task (described below and attached as Appendix A).
Strengthen Regional Planning : It is clear that the Administration and the SPC supports evaluating plans in a regional context. Regional planning is the basis for establishing Endorsement to replace the Center Designation process. A single municipal plan is too limited to evaluate as to whether the State Plan's goals will be achieved. If evaluation is done one municipality at a time, the whole will not be greater than the sum of the parts -; it will be less than optimal.
But regional planning has no strength in New Jersey, and the rule does nothing to clarify how regional planning will be conducted in the absence of an existing structure. The Endorsement Guidelines, the delayed release of which led to the extension in the comment period, are written as if only a single municipality is applying for endorsement.
RPP has proposed a Regional Action Pla n Process for setting targets that should be embraced by the State Planning Commission and established in the rule. I have attached the proposal to these comments and recommend it to the rule by reference. It is a process that balances factual analysis with an open and fair process to achieve all the goals and policies in the State Plan. But I reiterate, the rule must specify that the targets and actions in Endorsed Plans must achieve state mandated goals (such as water quality standards) and the Constitutional mandate for affordable housing opportunity as the minimum standards for approval. Those that do not meet those standards must be denied, and the rule should state this as a reason for denial.
Reflect the urgency: Time is running out for New Jersey. In central Jersey, for example, RPP can predict that build-out will be reached in the Route 1 Corridor before 2020, if land consumption trends continue into the future. Our GOZ® model demonstrates that this will be a build-out with serious problems built in: an economy moving out of state because of transportation gridlock and an inadequate labor force due to a lack of housing; pollution from tailpipes and stormwater runoff; and social and economic segregation second to no other state in the nation.
RPP is not just asserting this to be true. We have documented the trends. We will be happy to review the data with the State Planning Commission at any time. We can demonstrate that the only hope for changing the projected future into one in which there is hope for continued economic prosperity, improved environmental protection and more social justice, is for clear standards to be set and new processes -; with incentives -; put into place to meet them.
RPP has developed tools and processes to help. We have already shared these tools with the Office of Smart Growth and are prepared to share these with the State Planning Commission at any time.
Because of the storm of controversy that arose over the first draft of the State Plan in 1987, the vagueness in the first State Plan adopted in 1992 was understandable. In the second State Plan adopted in 2001, some success was achieved in making the goals clearer and the policies tighter. But the SPC continued to try to allay the fears of opponents by leaving out of the State Plan how it should be implemented and how consistency with it should be determined.
This vagueness is no longer functional, if it ever was. The vagueness must be replaced by clarity and it must be accomplished through this rule.
Ironically, it is the Administration's new efforts to back up their verbal support for the State Plan with new legislative proposals that is making the need for clarity on implementation more urgent. Because they propose linking new tools, such as Transfer of Development Rights and Impact Fees, to the State Plan through Endorsement, there is considerably more concern among stakeholders as to how Endorsement will be conducted.
Because no one yet knows -; and the rule as proposed does not tell them -; what changes in plans and regulations will be required to be considered consistent with the State Plan, there is considerable resistance to linking these tools to Endorsement. As the State Planning Act points out in 52:18A-202.1 e., "That consensus will be facilitated by the availability of sufficient information concerning the impact of the State Development and Redevelopment Plan on particular regions and on the overall economic well-being of the state."
Deletion of Interim Plan: In conclusion, the rule proposes to delete references to the Interim Plan and deletes that stage of Cross-acceptance. Since the Interim Plan is specified in the State Planning Act (52:18A-202.1f and g), RPP requests that the SPC specify why this change is being made and under what interpretation is it consistent with the Act?
Thank you for the opportunity to comment on these rules. RPP Board, staff and membership stand ready to help the SPC in any way to ensure that the State Plan is implemented and that a better future for New Jersey is secured.
Yours sincerely,
Dianne R. Brake President
Copies:
Hon. James McGreevey, Governor, State of New Jersey
Hon. Susan Bass Levin, Commissioner, NJDCA
Hon. Bradley Campbell, NJDEP
Hon. Jack Lettiere, NJDOT
Hon. Albert Kroll, NJDOL
Rev. Dr. William D. Watley, Secretary, C & EG Commission
RPP Board of Directors
Appendix A
Proposal for Endorsement: A process to develop Regional Action Plans
Purpose: The goal of this proposal is to integrate land use planning, regulations and infrastructure decision-making in order to achieve the desired outcomes of the State Development and Redevelopment Plan (SDRP). The process is proposed to meet targets set in the State Plan and the Regional Action Plans are proposed to be Endorsed Plans.
Approach: This proposal is based on the premise that there are three regional systems that affect and are affected by the countless decisions made by many different agents of government. These systems are: 1) the economy, 2) transportation and 3) the environment. Because the functioning of these systems affects the quality of life in New Jersey, it is vital that actions taken by different agents are coordinated to ensure the optimal functioning of all three systems.
To produce this optimization, this proposal establishes the Counties, or other acceptable regional agency as the agent responsible for integrating the land use plans, regulations and infrastructure decisions made by local, county and state government agencies that affect the three regional systems.
The Proposal: The proposal outlines a 7-step process of factual analysis and public involvement to produce agreements on the plans and ordinances that will guide decisions at all levels of government consistent with the State Development and Redevelopment Plan. The proposal assumes that incentives and enforcement programs will be provided by the State in association with the process.
The process results in a Regional Action Plan (RAP) covering land use, transportation, water supply and quality, wastewater treatment, stormwater management and energy consumption. The RAP will contain a list of measurable objectives and actions to be taken by the parties to the agreement, e.g., amending plans, passing ordinances, adopting best management practices and developing a capital program to meet the RAP's objectives.
RAPs must set targets to achieve the State Plan goals, statewide policies and State Plan Policy Map objectives. Specifically, targets will be set to:
- Reduce land and resource consumption
- Reduce auto-dependency
- Improve environmental quality
- Expand choices in transportation and housing
- Balance jobs and housing
- Promote a sustainable economy
- Make the use of public resources more efficient
- Make the distribution of the costs and benefits of growth more equitable.
RAPS must:
- Optimize a range of goals, rather than maximize just one.
- Be based on mutually agreed goals and objectives
- Be based on facts about trends and capacities
- Achieve federal and state mandates
- Outline agreements to integrate state and local plans vertically (all levels of government) and horizontally (across programs and agencies)
- Coordinate the actions of all decision-makers on their programs, regulations and investments on agreed objectives
- Be monitored and enforced.
Partnerships: Each party has equal power in the process. State government is expected to provide technical and financial resources, clarity about mandated goals and objectives, as well as ensure that their investments and permits support the RAP. Municipalities are expected to make land use decisions appropriate to the objectives in the RAP. County government is expected to convene the process, implement their RAP responsibilities and monitor its implementation.
Resources, Incentives and Enforcement: The process will be authorized in the State Planning Rule. Incentives to participate in the process and to enforce its implementation will be added in state agency rule-making and programs. These include:
- Providing Smart Future Planning Grants and other financial aid to fund the RAP process.
- Providing continuing funding for implementation and enforcement.
- Providing tools to facilitate agreements -; TDR, timed growth ordinances, impact fees, trip reduction ordinances, brownfield redevelopment aids, etc.
- Streamlining permits in growth areas and restricting permits in conservation areas consistent with the RAP.
- Assigning priorities for state aid to RAP partners: for conservation, Green Acres and Preservation Trust Funds, etc.; for growth, new resources such as school aid, an Infrastructure Investment Bank, affordable housing subsidies and a Transit Services Trust Fund.
- Assigning priorities in maintenance programs and investment funding, such as local transportation aid.
- Providing a state legal shield for parties acting consistently with a RAP.
- Changing the SDRP State Plan Policy Map to reflect Endorsed RAPs.
CHART: Proposed Regional Planning Process
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Goals/Facts/Choices/Outcomes: The process to produce a Regional Action Plan (RAP) is summarized under the headings Goals, Facts, Choices and Outcomes as described below and on the attached chart:
STEP 1 -- Goals: The first task is for each municipality and the County to produce a Goals Comparison Statement that compares the goals in its Master Plan and other relevant documents, to the goals of the SDRP and those of its neighbors, and other relevant regional and state planning documents. These statements will highlight goals by the three systems: economy, transportation and the environment.
Public involvement: Statement is reviewed in a public meeting.
STEP 2 -- Facts: Before resolving any differences in the goals among any of the parties, relevant information is collected by the County from appropriate agencies to determine how likely those goals are to be achieved. Whenever possible the information collected shall be mapped in GIS data layers. Every effort will be made to limit the amount of information required to make an informed decision without excessive expense or volume. A suggested list of relevant data is the following:
Economy:
- Statewide trend projections for population and employment.
- Statewide growth objectives for population and employment growth by Planning Area, Centers, Environs and Nodes.
- A theoretical zoning yield: a sum of the expected amount of development to be built if nconstrained land were to be built as zoned within a region.
- An inventory of approved permits for development within a region, etc.
- A report on state and federal laws that provide constraints or opportunities for meeting goals.
Transportation and Energy:
- An inventory of the capacities and conditions of bridges, culverts, transit fleet, rails, roads, wires, pipes, etc.
- An inventory of approved plans for maintenance, improvement/ expansion, loss of capacity, etc.
- A report on state and federal laws that provide constraints or opportunities for meeting goals.
Environment:
- An inventory of capacities and conditions or wastewater treatment facilities, water supply (amount available through facilities), pipes, etc; flow, recharge, quality of surface and ground water; areas of flooding; facilities for preventing the loss of rainwater, etc.An inventory of approved plans for maintenance, improvement/expansion, loss of capacity, etc.
- A report on state and federal laws that provide constraints or opportunities for meeting goals.
The data is collected by the County and published in a Capacities and Conditions Report. The report will estimate both conditions at build-out of existing plans and estimate conditions within twenty years.
Public Involvement: The Report is reviewed in a public meeting.
STEP 3 -; Analysis: At this stage the County reviews the Goals Comparison Statements from each municipality in the county and their County Capacities and Conditions Report. Issues arising from this review and from a comparison with federal and state regulations and programs (Clean Water Act, TEA-3, State Highway Access Management Code, etc.) will be listed in a Countywide Issues Statement.
Public Involvement: The Statement is reviewed in a public meeting.
STEP 4 -- Choices/Outcomes: This, the most challenging part of the process, is where the partners in the process set measurable objectives and agree on the appropriate package of actions needed to resolve issues and achieve the objectives. This process will have three phases:
Phase 1: Agreement on Issues: The partners review the Countywide Issues Statement. The Statement is revised to reflect any issues that are resolved by agreements among the parties to change local or agency goals (not those fixed by legislation) and/or by providing more or different data. Any issues that remain unresolved continue to appear in the Countywide Issues Statement. The product will be a Results of Phase 1 Report.
Public Involvement: The Report will be reviewed in a public meeting.
Phase 2: Drafting a Preliminary RAP: A Preliminary Regional Action Plan is drafted setting preliminary objectives and actions. Issues listed in the County Issues Statement must be addressed. All aspects of this draft will be preliminary and non-binding so that tests of effectiveness and how the costs and benefits are likely to be distributed can be estimated. The product will be a Results of Phase 2 Report.
Public Involvement: The Report will be reviewed in a public meeting.
Phase 3: Revising the RAP: If the Results of Phase 2 indicates there is a large gap between expected results and the issues or objectives, negotiations must take place on whether and how the objectives and/or the actions should be changed in the Preliminary Regional Action Plan. The product will be Results of Phase 3 Report.
Public Involvement: The Report will be reviewed in a public meeting.
STEP 5 -; The Regional Action Plan (RAP): If disagreement still remains, the County will assume responsibility for finalizing the RAP, listing any unresolved issues.
Public Involvement: The RAP will be reviewed in a public meeting.
STEP 6 -; Monitoring and Implementation: The County will release the Regional Action Plan and become the agent responsible for monitoring the implementation of everything in the Plan except unresolved issues.
Parties in the Process: A forum that allows for intermunicipal discussion and planning must be established to forge the regionwide agreements in the RAP. It may be helpful to establish planning groups by commutersheds, watersheds and transportation corridors. It is necessary to ensure, however, that objectives and strategies for are integrated before the final RAP is agreed. It is suggested that a Regional Action Plan Steering Committee be established in each County or by the convening agent.
Schedule: In order to expedite the process and ensure comparability of results, the State should undertake much of the data preparation: a single set of population and employment projections, a distribution of those projections by Planning Area, Centers, Environs and Nodes as expected by the targets set in the SDRP, and a theoretical development yield of municipal zoning, and capacity analysis of major infrastructure facilities.
With data provided, the process should take about 18 months to complete. The completion of the Goals and Facts stages, including the completion of the County Issues Report, should be accomplished within 8 months. The Goals/Outcomes Phase 1 should be concluded within 6 months and Phase 2 within 4 months.
Endorsement and Other Products: If agreeable to the parties in the process, the RAP can be submitted to the State Planning Commission for Endorsement. It can also be used as the basis for other products, such as a County Roadway Access Management Plan, a regional multi-modal circulation element, a Regional Stormwater Management Plan, a Regional Water Quality Management Plan, etc.