INCREASING BUILDING HEIGHT SAVES WOODLANDS

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1 WOODED SITE 2-STORY BUILDING HEIGHT 40,000 SF 4-STORY BUILDING HEIGHT 40,000 SF INCREASING BUILDING HEIGHT SAVES WOODLANDS INCREASING BUILDING HEIGHT SAVES WOODLANDS EXISTING WOODLANDS SOFTEN THE VISUAL IMPACT OF TALLER BUILDINGS 28

2 Another technique that reduces parking and saves wooded acres is sharing parking between different land uses. For example, if one type of use requires parking primarily during the day, and an adjacent use is mostly occupied in the evenings or on weekends, the two uses can share parking. This results in a reduced number of parking spaces overall. A method for calculating parking ratios by time of day and day of the week has been published by the American Planning Association. Shared parking ratios are included in the development regulations for Montgomery County, Maryland. New parking islands can be constructed around existing trees and woodlands. The location and configuration of parking islands should also be flexible if the developer can demonstrate that this will save trees. Emergency (fire and police) officials typically review site plans to make sure that resulting development is accessible by rescue equipment. Reviewing officials should be made aware of woodland conservation goals, and consider alternative ways or locations to gain emergency access, if necessary. Storm water management construction can have major impacts on tree conservation. Reducing the total amount of impervious coverage, such as building rooftops and paved surfaces, on wooded sites helps keep the size of storm water management facilities to a minimum. Directing the clean water from building rooftops directly into ground water recharge facilities also reduces the size of storm water facilities. In some cases, innovative storm water management techniques can be used to reduce the impact of these facilities on wooded areas. One such method fits storm water management facilities into existing woodlands without clearing them. The woodlands must be appropriate candidates for this approach, containing wetland tolerant species and being located at a low point on the site. The best way to limit the impact of storm water management facilities on wooded sites is to have your municipal engineer work with the applicant to educate them about current innovative techniques. At the very least, storm water management facilities should not be located on parts of the development site that have priority woodlands present. Creating site design and land use regulations can be complex. Many existing ordinances have conflicting or overlapping language, and are not integrated to work together in a coordinated fashion. Although the task can be daunting, land use regulations should be overhauled to conform to the current master plan and to allow and encourage modern site design techniques that preserve existing woodlands during land development. 29 IMPLEMENTING THE MASTER PLAN One of the major elements of commercial, office and industrial site design is parking areas. One way to reduce the total area of a site devoted to parking is to require that a percentage of the total parking count be compact spaces (usually 8-feet wide by 16-feet long). Parking can also be located on multi-story decks or underground, especially when the total number of spaces reaches a certain level. Requiring smaller drive aisle widths and parking stall dimensions also reduces the amount of space consumed by parking. An adequate standard parking stall size is considered to be 8-1/2-feet wide by 18-feet long. A two-way drive aisle width can be reduced from 24-feet to 22-feet to conserve woodlands.

3 Exotic/invasive plants are introduced to an area by people and are not part of the natural vegetative cover. Exotic plants that compete with native vegetation are also labeled invasive. They are vigorous, and compete for germination with native plants. As they consume nutrients, sunlight, and space, they eliminate native plant species and invade woodland areas. The result is a monoculture made up of exotic/invasive plant species. NATURAL RESOURCE CONSERVATION REGULATIONS It is important to integrate tree conservation with other natural resource conservation ordinances. It is the presence of more than one natural resource in the same area that makes it especially vulnerable to the impacts of development activity, and woodland conservation should not be segregated. Consider a natural resource conservation ordinance section that addresses all resources in a comprehensive manner. A woodland conservation ordinance can be included as a subset of the complete natural resource conservation section. In formulating land use regulations, make sure they meet the needs of all zoning districts in the community. For instance, tree and woodland conservation goals may be different for village center districts than for other districts targeted for less intense land uses. In a village center, the emphasis may be on conserving street trees, not woodlands. The goals for a rural zoning district may include conservation of hedgerows, trees that form backdrops to key views, and woodlands. Tree conservation legislation must respond to the character and intent for each district. Performance standards for landscaping should work together with the tree conservation ordinance. If a large number of existing woodlands are left on the site after construction, there may not be room left for landscaping. It may be appropriate to waive some landscape requirements in that case. In addition, basic landscaping requirements should be consistent with required woodland mitigation plantings. BURNING BUSH IS EXOTIC AND INVASIVE At the same time, landscape ordinances should not work against woodland conservation and mitigation ordinances. One example of this is allowing the use of exotic/invasive plant material to be planted on a site where native woodlands are present. Integrating the ordinances also ensures that the character of all plantings on the site creates a harmonious result after the project is built. WOODLAND CONSERVATION REGULATIONS: LEGAL ISSUES Some woodland conservation regulations passed by municipalities in the State of New Jersey have recently been challenged in court by developers. Whenever an ordinance is legally challenged, it highlights the need for an understanding of how to prepare an ordinance that is fair to all parties. A WOODLAND INVADED BY BURNING BUSH A recent court challenge to a municipal ordinance in New Jersey included a complaint that portions of a tree-cutting ordinance were inconsistent with the Municipal Land Use Law or MLUL (New Jersey Builders Association v. Monroe Township, Superior Court of New Jersey Middlesex County, filed January, 2000). The complaint asserted that permit review 30

4 Fair: the treating of both or all sides alike, without reference to one s own feelings or interests. -Websters New World College Dictionary FLEXIBLE SITE DESIGN REGULATION SAVE TREES: RIGID Maximum allowable slope must be 3:1 FLEXIBLE No maximum allowable slope: encourage walls Street width Encourage requirements narrower street (also regulated widths where by New Jersey there are Residential Site existing trees Improvement Standards) Large turning radius and turn around areas for emergency equipment Minimum setbacks Alternative access using unpaved, stabilized lanes, K turns, or connected streets Flexible setbacks procedures and officers designated in the ordinance to oversee the program were not authorized by the MLUL. Since the MLUL does give procedures for the review and approval of land development applications by local zoning and planning boards, any tree conservation permit procedures should work in concert with the MLUL. The town in question settled the matter by rewriting its ordinance, among other things. Municipal attorneys must be included in the ordinance writing process and be aware of the current legal issues associated with woodland conservation ordinances. This handbook is not a substitute for legal advice. It is only intended to present basic concepts that will help avoid known legal pitfalls. Basic principles to keep in mind when crafting a woodland conservation ordinance are that that there is authority to so regulate; the ordinance is reasonable and not arbitrary and capricious; and the regulation is not superceded by any federal or state regulations. Land development is regulated in New Jersey by the MLUL. The MLUL allows local governments to regulate land development and to protect the environment, as long as the regulations support, and do not conflict with, the MLUL. The authority to plan for the conservation of woodlands in New Jersey can be derived from the stated purposes of the Municipal Land Use Law (40:55D-2), among them: To provide adequate light, air and open space To promote the establishment of appropriate population densities and concentrations that will contribute to the preservation of the environment To provide sufficient space in appropriate locations for a variety of uses and open space according to their respective environmental requirements in order to meet the needs of all New Jersey citizens To promote the conservation of historic sites and districts, open space, energy resources and valuable natural resources in the State and to prevent urban sprawl and degradation of the environment through improper use of land. Municipalities can prepare woodland conservation regulations as part of their land development regulations or else as a general ordinance not associated with land development. In the latter case, the ordinance applies to any property, regardless of whether the activity triggers land development regulations. The authority to enact a freestanding ordinance that is not part of the municipality s land use regulations is established through the police power statute and the public welfare concern that underlies it. However, the general ordinance should still be cited in the land development regulations, to ensure that if a project is subject to land development regulations, the applicant is aware of the additional woodland/tree conservation requirements must also be satisfied. IMPLEMENTING THE MASTER PLAN 31

5 WOODLAND CONSERVATION ORDINANCE: PUBLIC DISCUSSION ITEMS Who will be required to comply with the legislation? What can be cleared without a penalty? What is the permit application process? Who will oversee the process? What will it cost the community to administer the program? Should a portion of each site be wooded whether or not woodlands were present at the time of development? Will priorities for conservation and replanting be environmentally based? Will you allow mitigation plantings to replace cleared woodlands? Must a permanent COMPONENTS OF A WOODLAND CONSERVATION ORDINANCE: Purpose, Intent, and Definitions Application and Responsibility Basic Performance Standards Long Term Protection Enforcement Woodland conservation provisions can be incorporated into site plan or subdivision provisions of the land development regulations. They can also be written into zoning ordinances. Deviations from zoning ordinances are subject to variances whereas deviations from subdivision and site plan regulations can be accomplished through a waiver process. The waiver process imposes less stringent criteria. An ordinance requiring site plan review and approval must include standards and requirements related to preserving existing natural resources on site as well as landscaping (40:55D-41). Both site plan and subdivision ordinances must ensure adequate water supply, drainage, shade trees and erosion control (40:55D-38), providing further justification for woodland/tree conservation regulations. Both types of ordinances can also offer standards encouraging flexible design, including planned developments, in which open space can be reserved (40:55D-39) and trees can certainly be required as part of such regulations. While the Municipal Land Use Law has broader and more explicit language addressing woodland/tree conservation regulations in site plan ordinances than subdivision ordinances, there is also case law that provides justification through subdivision regulations (Pizzo Mantin Group v. Township of Randolph, 137 N.J. 216 (1994)). Local regulations must be clear, precise and understandable. Regulations must be detailed enough that they can be applied and interpreted consistently, eliminating arbitrary interpretation. In addition, the regulatory process must be fair. The rules for public hearings, adjacent owner notification, and appeals must be laid out in a clear process. The court can dismiss woodland/tree conservation regulations for being too vague. In addition to the MLUL, land development in New Jersey is regulated by the Residential Site Improvement Standards and the Right to Farm Act. Other relevant environmental regulations include the Freshwater Wetlands Protection and Stream Encroachment Act. Certain state provisions, such as those contained in the Right to Farm Act, may supercede municipal land development regulations (see also Chapter 10 - Frequently Asked Questions). 32