The Power of a Category One (C1) Designation by DEP

“C1 buffers create overwhelming development constraints”

BPG Carter Road – vacancy at existing office park (East Track)

Today, just a brief update on the ongoing litigation in Hopewell Township (Mercer County) on the “Berwind Property Group” (BPG) project.

I will do so in a limited way: my intent is only to illustrate the power of a “Category One” (C1) waterbody designation by DEP, using Berwind’s own legal brief to do so.

This story provides important lessons to those who seek to preserve land and protect water quality. In particular, it highlights the power of regulatory tools to preserve land.

In this case, the “de facto” open space created by the C1 designation was far greater than land preserved under a conservation easement deal. Preservation of the conservation easement lands was provided in a negotiation with local conservationists, in exchange for not objecting to the proposed development under the Berwind GDP.

The C1 designation shows that such compromises are not necessary. Regulatory tools can preserve open space at zero public taxpayer expense!

The Berwind case was appealed to the NJ Supreme Court, where a citizens group won a victory. I will not go into the details here, so for background on the project and issues involved, see:

• Hopewell Citizens Group Wins NJ Supreme Court Victory (January 13, 2011)
• NJ Supreme Court Hears Challenge to Massive Berwind Development in Hopewell Township (October 26, 2010)
• Grandfather Loophole guts DEP Stream Protection Plan (June 5, 2008)

As we have written in detail, when the project was before the Planning Board for the final hearing on preliminary site plan approval on May 29, 2008, my testimony was blocked by Berwind lawyers (see paragraph 89, on page 13).

The June 9, 2011 Berwind brief now confirms everything I previous said and had stated in my written testimony that was blocked (with the exception of the Stream Encroachment permit expiration issue, which I had not addressed). Here is an excerpt, starting at paragraph 33 on page 23 (emphases mine):

33. The Plaintiff in this action contends that BPG’s site plan approvals are invalid because, allegedly, the Board should have delayed its vote on BPG’s application pending effective date of the new C1 rules.

34. If it is determined that BPG’s application should have been made subject to the new C1 rules, it will be impossible to construct the Project as approved under the GDP.

35. Moreover,regardless of whether the Court determines that the new C1 rules should have applied to BPG’s application, the new C1 rules will render the Project infeasible for construction.

36. The Stream Encroachment Permit will expire on November 29, 2012, and as a result of NJDEP’s amendments to the C1 rules, as of the expiration of the permit, BPG will be prohibited from developing within three (300) feet (sic) of the Stony Brook tributaries to the extent such development is not completed or substantially completed.

[37]

38. As shown in Exhibit 1, the C1 areas [stream buffers] create overwhelming development constraints on the East Tract ..

[39]

40. In other words, the total C1 classified area (approximately 179 acres), which will otherwise act as de facto open space, is actually more than the acreage of the entire West Tract (approximately 169.5 acres).

The BPG brief then goes on to detail the specific portions of the proposed development – approved by Hopewell Township under the GDP – that are located in the 300 foot C1 stream buffer: 90% of approved building P-1 (81,900 sq. feet); 50% of building P-2 (45,500 sq. feet): 10% of building P-3 (9,100 sq. feet): 30% of Building P-4 (27,300 sq. feet); along with a substantial portion of the road infrastructure and drainage facilities.

Overwhelming development constraints indeed!

Which is exactly why the Christie DEP has killed the C1 program and why we will see no more C1 upgrades (thanks again Dave Pringle!).

Instead of more C1’s and stronger water quality protections, DEP is now working on a new stream classification scheme – apparently with EPA support – to downgrade protections in order to provide waivers and relief from water quality protections.

More to follow on another troubling problem at DEP.

preserved land, by conservation easement (West Track)