BY JOYCE BLAY
Staff Writer
The new year may hold further litigation by developers who are seeking to build residential communities in the section of the state’s Pinelands region that lies within Jackson’s borders.
That was the expectation expressed by Township Com-mittee members who voted unanimously on Monday to adopt an ordinance extending the wildlife habitat buffer along the main stem of the Toms River and Ridgeway Branch from 300 feet to 600 feet.
“We’re taking a proactive step” in adopting this ordinance, Mayor Sean Giblin said. “We anticipate legal challenges to this. The Pinelands Commis-sion has said it will stand hand-in-hand with us” in defending it.
The committee may not have long to wait for that anticipated legal challenge. Once the Planning Board adopts a resolution memorializing its Dec. 6 denial of the Grawtown Estates application, the door will be open for attorney Raymond Shea to file suit against Jackson.
Shea, who is a principal in the venture, is representing Orleans Home Builders of Bensalem, Pa. Although he declined comment on possible litigation, he said during testimony that he would not grant an extension of the application if that meant the project would be subject to the 600-foot buffer that the new ordinance imposes on builders in the Pinelands.
The ordinance extends the 300-foot wide buffer along the Toms River corridor, a Category 1 protected waterway, to a total of 600 feet to protect wildlife habitat.
The change was based on recommendations made by a task force consisting of representatives of the Pinelands Commission; Jackson and Manchester townships; the state Department of Environmental Protection (DEP) Division of Watershed Management, Endangered and Nongame Species Program, and Green Acres program; the Ocean County Planning Department; Naval Air Engineering Station Lakehurst; the New Jersey Conservation Foundation; the New Jersey Audubon Society; and other technical contributors.
Democratic committee members had earlier protested the increased buffer since it would hinder commercial development of County Line Road. However, the DEP said earlier this year that a waiver of up to 300 feet could be granted in certain situations. The ordinance clearly spells out those exceptions.
The total buffer width of 600 feet will apply to the wetlands boundary along the main stem of the Toms River and Ridgeway Branch. A 300-foot wetlands buffer was enacted on Aug. 2. The Pinelands Commission recommended that a 300-foot uplands buffer be added to it.
Permitted uses would include passive open space, forest preservation and trail extension as approved by the Jackson Planning Board. However, under the new buffer extension, development of any kind would be prohibited. Also banned would be construction of buildings or structures, impervious surface, fences or improvements, storm water management basins, ball fields or recreation facilities and specified clearing under section 109-91C(3) of the Municipal Land Use Law.
Exceptions to the new buffer include lots in the FA-1, FA-2, FA-6, PV, RD, RD-1, RD-9 zones in which no construction would be possible. In those situations, according to the ordinance, an applicant may prepare and submit a plan for a reasonably sized single-family house, which would be reviewed by the Planning Board and be subject to approval by the Pinelands Commission. Permits for construction within the buffer would not be issued until a waiver had been obtained and the footprint of disturbance had been located on a plot plan and approved by the Planning Board.
On lots in the PM-1 and PVC-2 zones in which entire property is located, applicants may submit a plan for construction of a non-residential development not to exceed 3,000 square feet.
Lots in the RG-2 zone, where Grawtown Estates was proposed, fall into two categories: those served by public sewer and those that are not.
The latter category would require that an applicant prepare and submit a plan for construction of a reasonably-sized single-family house on a minimum of 1 acre with an alternate-design septic system.
For developments that would be hooked up to public sewer, as proposed in the Grawtown application, and in which the entire project would be affected, an exception may be made if a single-family house is located as far as possible from the wetlands and the buffer is maintained as much as possible to accomplish the goals outlined in the Regional Natural Resource Protection Plan for the Toms River Corridor. Any clearing of the site must be minimized and may not exceed more than 15,000 square feet.
In addition, the buffer on the lot may not be reduced to less than the existing buffer on an adjacent lot. The buffer will not be reduced if known threatened or endangered species within it could be affected.
The buffer may also be waived if it originates less than 100 feet on one side of an existing paved road and the development is located across the street.
Committeeman Michael Broderick said at the governing body’s Dec. 13 meeting that he and Deputy Mayor Joseph Grisanti had discussed the changes with the Pinelands Commission as the township’s representatives.
Residents who addressed the committee during the public hearing on the ordinance commended the legislation.
However, resident George Fisher questioned why the Dove’s Creek tributary along Leesville Road in the northeast section of town was not included in the area affected by the buffer extension.
“Some tributaries are very small and a 600-foot buffer seemed too big,” said Leah Furey, a planner with Ragan Associates.
Rick Ragan, the township planner, was not present at the Dec. 27 meeting.
“We need to realize that this tributary is not a trickle, but a major waterway,” said Fisher. “It needs to be [addressed].”
Fisher is a member of Jackson Residents for Smart Growth, a nonprofit organization that challenged the Grawtown Estates application at Planning Board hearings.
Ed Baldwin said he supported the ordinance, but said he believed that some of the language used was too vague. He cited use of the term “reasonably sized one-family house” as an example.
“That’s [open to] a lot of interpretation,” he said.
Furey conceded he was right, but said that such language was deliberately used. She said that if someone were to request a waiver to the buffer under its exceptions, either the Zoning Board of Adjustment or the Planning Board would be able to determine specifics.
“[Applicants] shouldn’t be penalized for what has already been cleared,” Giblin said.
“If I were to challenge this ordinance in a court of law, [it would be easy with such vague language],” said Baldwin. “Maybe you should set some boundaries.”
Giblin said legal recourse is the American way of resolving disputes. He stressed that the ordinance represented the committee’s best hope for addressing both environmental concerns while preserving land owners’ rights.
Furey said the members of the Pinelands Commission would review the ordinance once it was adopted. She said that if they found that the ordinance required further modification in its language, the commission could request that it be revised.
Rich Bizub, a professional geologist, said Jackson is on the forefront of water preservation. He said there had not been as much discussion of water quality or quantity, but that both would be enhanced through the 600-foot habitat buffer.
Theresa Lettman, project manager/Pinelands for the Pinelands Preservation Alliance, Pemberton, told the committee that she thought it was a mistake to have omitted the Dove’s Mill branch from the restrictions imposed by the ordinance.
Committeeman Josh Reilly said that a recommendation would be made to the Pinelands Commission that the Dove’s Mill branch be included.
“It’s always possible to amend this ordinance in the future,” said Furey. “It sounds as if everyone who spoke was very informed about it.”
Furey said a map made of the area impacted by the ordinance would be available to residents at the Planning and Zoning Office in the municipal building.