The Next Act

Posted on January 7, 2020 by Site Admin

Comment below was first posted in forums on the website of the Citizens’ Climate Lobby (CCL) in November 2019.  The town I refer to in the next-to-last paragraph is Bernards Township in NJ.

Bill Allen    01-07-20

My somewhat optimistic working assumption is that a system of Carbon Fee and Dividend (CFD) will be enabled by HR 763 or similar legislation in 2021.  Carbon fees and carbon dividends will go live in 2022.

I propose that we in CCL then shift our emphasis from lobbying to education.

Most people will not have followed the progress of the legislation and will know nothing about CFD.  They will react slowly to the price signals produced by the carbon fees, and will contribute little in the early years to progress down the curve of Greenhouse Gas (GHG) emissions.  We need a vigorous plan of outreach and education to produce proactive consumers, who will accelerate the drive down the GHG emission curve.  CCL volunteers should:

  • Explain CFD to the consumer and business communities.
  • Show consumers how they can project the dividends they will receive over ten or more years.
  • Show them how they can project the rising costs of fossil fuels they will consume.
  • Suggest how they can reduce consumption of these fuels.
  • Point them to professionals who can help, such as energy auditors and home improvement contractors.
  • Become the go-to people for anyone seeking information re global warming and what they can do about it.

Many in the business community will be alert and respond rapidly with goods and services that will help consumers consume less fossil fuel.  But not all will do this.  CCL volunteers should reach out to local business people, explain CFD, and discuss potential opportunities.

I estimate that $227 million in dividends will be distributed to the 27,000 residents of my town over the first ten years with CFD.  Knowledge of these funds should stimulate interest in the local business community.

CCL has committed staff and volunteers, and excellent organization and tools like this website.  No one is better positioned to reach out and provide the education and information proposed here.  Let’s begin now and plan how we will do this.

Posted in CCL-CFD | Tagged , , , | 1 Comment

Whom are you going to believe?

Posted on November 10, 2019 by Site Admin

Below is from a talk I gave recently.    Bill Allen    11-10-19

“Who are you gonna believe, me, or your own’ eyes?”

This line is from Chico Marx in a 1930s Marx Brothers movie.  But my talk today is not about old movies.  It is about whom we should believe today.

Our heart is mostly muscle.  The heart beats about 80 times a minute.  If you are 50 years old, your heart has beat about two billion times.  The muscle burns energy every time it beats, and it needs a continuous supply of blood to produce that energy.  This is provided by little arteries attached to the outside of the heart muscle.

Many people have a condition known as atherosclerosis in which there is a gradual clogging of these arteries.  This slows the flow of blood to the heart muscle.  When the flow becomes too slow, the body sends a signal that we call angina.  In my case this began with a slight tingle in the tips of the fingers of might right hand.  Over several days it gradually got worse and caused pain that extended up my right arm to my jaw.

This was in 1984.  I went to my regular doctor and he referred me to a cardiologist.  He prescribed some medications.  I followed his advice and things were OK until 1993.  The angina returned, I had some more tests, and my doctor recommended open heart surgery.  I read some books on this—-one was pretty scary—and decided to follow his advice.  Two clogged arteries were bypassed, and things were OK again until 2000.  The recommendation then was to use a procedure called angioplasty and to insert stents to expand partial blockages in two locations.  I agreed and this was done.  This cycle repeated and another stent was inserted in 2012.

What is the moral of this story?  I followed the advice of medical experts:  people who have spent their lives developing drugs and procedures for dealing with the problem I have.  I’m standing before you today in pretty good health.

The Boeing 737 is one of the most successful planes in commercial airline history.  An advanced model called the 737 Max 8 was selling well.  In October of last year one crashed in the Java Sea, killing all aboard.  Another crashed in Ethiopia in March, with the same result.

The entire fleet of nearly 400 planes is now grounded and sitting on tarmacs all around the world.  The cause of the crashes has been determined, and Boeing is working hard to fix the problem.

Evidence is accumulating that Boeing ignored early warnings of the problem, and that our federal government had transferred too much responsibility for assuring safety to Boeing.

Suppose that Boeing designs and installs a fix on some planes next year and declares these planes safe to fly.  And suppose also that Boeing invites a group of regular commercial airline pilots to try out and fly these repaired planes, and that almost all the pilots report that the planes are still unsafe.

Whom would you believe?  Boeing, whose negligence caused the problem in the first place, or the professional pilots?  Would you buy a ticket and fly on one of these planes?

Evidence of global warming and huge related problems are all around us.  Fires in California aggravated by record dryness and near Hurricane force Santa Anna winds are the most recent example.  Record spring flooding in mid-western farm country is another.  July 2019 was the hottest month in the 140-year, world climate record.

Congressional testimony by climate scientist James Hansen put the problem before the public in 1988.  Recent disclosures show that Exxon engineers understood and were discussing the problem in the 70s.  Climate scientist Stephen Schneider wrote this book in 1989 and I read it in 1992.  The title is Global Warming:  Are We Entering the Greenhouse Century? His answer was an emphatic YES.

This was my first book on global warming, and the related problems of climate change, sea level rise, and ocean acidification.  I have at home fifty-one more books on these problems that I have acquired and read.

There are probably hundreds more books on the subject that I haven’t read, perhaps thousands, and there are tens of thousands of peer reviewed articles.  Estimates vary, but there is good reason to believe that 80 to 90 percent of climate scientists believe that the earth is warming, and that we are contributing to that warming when we burn fossil fuels.

There are some who deny that the earth is warming and that we humans are part of the problem.  Like Chico Marx they are saying that we should not believe our own eyes.  We should not trust the experts who have studied this issue for decades.

An overwhelming majority of climate scientists believe global warming is an existential threat.  They urge us as rapidly as possible to slow—and eventually stop burning fossil fuels.  I believe them and am doing what I can.

Whom do you believe?  Will you follow their advice?

 

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ReEnergize America

Posted on May 11, 2019 by Site Admin

Letter below was submitted to Bernardsville News on 05-11-19.  It was published in the online edition on 05-14-19 and in the print edition on 05-16-19.

Carbon Dividend Act to Help “ReEnergize America”

EDITOR:

I’m interested in lots of things.  Climate change and doings in Washington top the list, and the news from these two fronts is usually bad.  I’m happy to report here some good news.

A bill called The Energy Innovation and Carbon Dividend Act was introduced as HR-763 in the House of Representatives in January.  Our Congressman Tom Malinowski, D-7, is one of 36 co-sponsors.

Most Americans recognize global warming and its related problems as a major threat.  The principal cause is burning fossil fuels–coal, oil, natural gas–and producing carbon dioxide (CO2).

Some of this CO2 goes into the atmosphere, where it functions as a greenhouse gas, changes climate, and causes sea levels to rise.  Some CO2 goes into the oceans, where it reduces pH and interferes with chemistry used by marine organisms.

There is less agreement on what should be done to reduce this threat.  I am a member of the Citizens’ Climate Lobby (CCL).  We argue that most important is to stop burning fossil fuels, and that the best way to do this is with a system of Carbon Fee and Dividend (CFD).

CCL has promoted CFD with members of Congress for over ten years.  I have written about it several times in this space.  HR-763 will implement CFD.  Its major features follow.

  • Put a “carbon fee” on each fossil fuel based on the quantity of CO2 emitted when the fuel is burned. Start fees low and raise them each  year in accord with a predetermined schedule.
  • This will send a price signal throughout the economy and encourage people to conserve energy and transition to goods and services that depend less on fossil fuels.
  • Consumers and business people will be able to plan for the long term and act creatively and constructively.
  • The business community will see opportunities and provide better ways for people to conserve and transition to non-fossil fuels.
  • Divide fee revenue into equal shares, allocate one share to each adult and a half share to each child, and distribute these shares to the private sector as “dividends” to households.
  • Billions of purchase decisions, that will drive the transition from fossil fuels, will be made by actors in the private sector.
  • There will be less need for top-down government regulations, less justification for government subsidies, and less government interference in private lives.

HR-763 represents good progress.  We thank Congressman Malinowski for co-sponsoring the bill and urge other members of Congress to support it.  I ask your readers to do the same.

I’m old enough to remember these words in 1961 from President John F. Kennedy:

“I believe that this nation should commit itself to achieving the goal, before this decade is out, of landing a man on the moon and returning him safely to Earth.”

Americans came together and met the challenge with the Apollo space program.  We invented new technologies and generated new jobs.  Our successes raised our confidence and lifted our spirits.

Let’s remember this and resolve to stop burning fossil fuels by 2050.  Call the program ReEnergize America.

This challenge will be more difficult than going to the moon.  It will require more than a decade.  But some things will be the same.

As with Apollo, we already know much that must be done to achieve the goal, but not everything.  As with Apollo, we will encounter problems.  In solving them we will invent new technologies and generate new jobs.  As with Apollo, our successes will raise our confidence and lift our spirits.  We will ReEnergize America.

I will borrow again from John Kennedy:  We choose to ReEnergize America, “not because it is easy, but because it is hard.”  And I will add:  It is essential that we do this.

We will have a CCL Charter Day booth in Basking Ridge on May 18.  I invite your readers to stop by and discuss how we can work together to ReEnergize America.

Bill Allen    05-11-19

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Homes, Schools and Taxes

Posted on March 15, 2019 by Site Admin

Below is link to letter to Bernards Township Planning Board that was submitted during the public hearings for the township Master Plan in 2009.  Click’ on the link to read the letter in pdf format.

Homes, Schools and Taxes

I am posting this letter here today, because it describes an analysis that is relevant in a discussion of future development of the quarry land.

Bill Allen    03-15-19

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Quarry Subdivision: Background and Reasons to Oppose

Posted on February 24, 2019 by Site Admin

Below are information and comments re the proposal to subdivide the property in Bernards Township known as Millington Quarry.  I hope they will be helpful for those interested in the future for this land.

New sections [6] and [9] added on 03-02-19.

If you are using the Firefox browser, please see comment re hyperlinks at bottom of this page.

[1] Application:  Quarry owner MQI proposes to divide the 180-acre quarry tract into two lots.  What used to be called the MOA area, and is now called the AOC (area of concern), will be Lot 6.01 with 50.3 acres.  The remainder will be Lot 6.02 with 129.5 acres.

The Board of Adjustment (BOA) will hold the first public hearing on the application on March 6.

Lot 6.01 will contain the embankment in the NW corner that was constructed with fill material imported in the 2006-2008 period.  There are substances in this soil that NJDEP designates as contaminates.  When concentrations of these exceed specified limits, NJDEP rules them to be unsafe for direct and frequent human contact (eg play grounds).  Tests of soil samples showed concentrations above the specified limits.

A two-foot rock layer has been laid over the embankment surface.  This “cap” will be a physical barrier to prevent human contact with the contaminated soil beneath.  It will not prevent water from moving into or out of the embankment.

Uses that do not penetrate or disturb the cap (eg biking and walking) will be permitted. Uses that will penetrate or disturb the cap (eg building foundations) will not be permitted.

Lot 6.01 will also contain the west section of the future lake and the short west section of the steep quarry faces along the north wall.

Lot 6.02 will contain the rest of the lake, the graded south slope, and most of the perimeter slopes and quarry faces.

Uses will be those permitted in the existing R-3 zone.  It is likely, but not certain, that this lot will in future be further subdivided for residential lots, leaving a large lot with the lake and surrounding undeveloped land, that will be owned and managed by a homeowners association (HOA).  I will assume this below.

[2] Applicants Statement:  The application package includes an Applicants Statement with this comment:  “In furtherance of its efforts to close-out the remediation in an orderly and efficient manner, the Applicant is seeking to confine the capped and deed restricted portion of the Property to a single lot within the overall tract.”  (Review the whole statement here.)

With no evidence to the contrary, I will assume that in future the two new lots may, and probably will be owned by different parties.

The applicants statement above suggests that the purpose of subdivision is to absolve present and future owners of land in Lot 6.02, or in its successor lots, of any responsibility for problems inside Lot 6.01 or proceeding from it.  I believe this would be a great mistake.  I will urge the BOA to deny the subdivision application and will explain my reasons below.

[3] Concerns:  The biggest one today is the quality of the water in the future lake.  With good water quality there is potential for recreational activities like fishing, swimming, and non-motorized boating.   Next in importance are risks of falling for people at the top of the quarry cliffs, and of being hit by falling rocks for people at the bottom.

[4] Lake Water Quality:  Future lake water quality may be adversely affected by leaching to the lake of contaminants from the imported fill in the AOC.  Each of the new lots will contain a part of the lake.  Any harmful leaching will affect the whole lake and both lots.

The lake is now filling.  There have been no tests of water quality.  We will not know if leaching is a problem until testing begins, continues, and results are evaluated over several years.

If leaching becomes a problem, a condition in undeveloped Lot 6.01 will be responsible for a problem that affects the residents in Lot 6.02.  Resolving the problem will be more difficult if Lot 6.01 is owned by one party and Lot 6.02 is owned by one or more other parties.  More on this in section [10] below.

This is an argument against subdivision of the AOC from the rest of the quarry tract.

[5] Ground Water Testing:  The latest data I have seen re the contaminants in the AOC are in the J M Sorge Remedial Investigation Report Addendum (RIR) of September 2017.  Joe Sorge is a Licensed Site Remediation Professional (LSRP) who was retained by MQI to evaluate conditions in the AOC, and then recommend and implement the mediation measures described in section [1] above.  His report has 576 pages.  A word search does not find “lake” or “lakewater” except two references to Lake Road.

It does address groundwater quality and concludes on page 12 that “groundwater impact is not a concern on the site. … Groundwater at the site meets current NJDEP Class 1 groundwater health based standards.”

In a table of nearby surface water bodies on page 565 it lists only the Passaic River and its tributaries.  There is no mention of the future lake.

The RIR addresses groundwater quality comprehensively.  It says essentially nothing about lake water quality, now or in the future. 

[6] Quarry Ordinance and Rehab Plans:  The Township Committee (TC) enacted Ordinance 1515 in 2001 re quarry rehabilitation (rehab).  This did not change the physical requirements for rehab.  It did describe in detail the information that a rehab plan should contain and the process the Planning Board (PB) should follow in its review of the plan and report to the TC.  Three rehab plans were submitted and reviewed after 2001:

  • Plan 2003 submitted in 2003 and reviewed by the PB with a report to the TC in 2005,
  • Plan 2008 submitted in 2008 and reviewed by the PB with a report to the TC in 2008, and
  • Plan 2011 submitted in 2011 and reviewed by the PB with a report to the TC in 2013.

The TC recently set up a Quarry Advisory Task Force to determine and report on MQI’s compliance with, and implementation of rehab Plan 2011 (aka Last Approved Rehabilitation Plan).  Many components of Plan 2011 must be reviewed.  A final report is expected on or before 10-01-19.

It would be a mistake to subdivide the quarry property before the Quarry Advisory Task Force completes its review, and the TC certifies that all requirements of rehab Plan 2011 have been met.

[7] Lake Water Testing:  One component of rehab Plan 2011 is a Lake Management Plan prepared by Omni Environmental and dated 11-13-11.  (Review the lake plan here.)   In sections entitled Characterization Plan and Lake Maintenance and Monitor Plan, it lays out a comprehensive and long-range plan for characterizing “existing water quality” and future water quality.

At the end of its review of Plan 2011 the PB submitted a report dated 05-07-13 to the Township Committee (TC) with its findings and recommendations.  It addressed lake water quality in Item 14 of Recommendations, and recommended additional testing following recommendations of its lake consultant, Dr. Steve Souza,  (Review the PB report here.)

I recommended to township officials multiple times that water samples be tested regularly once the lake started to fill in order to

  • establish a base line of lake water quality, when it is determined primarily by precipitation,
  • make it easier to detect a trend when, and if, future water quality is affected by leaching of contaminants from the AOC, and
  • signal the need to take corrective steps before dangerous contaminant levels are reached.

The lake has been filling since 2017.  I know of no lake water testing that has been done to date.

Lake water testing should begin now and continue in perpetuity.  Test frequency may be decreased if no problems are observed.

[8] Safety:  The Lake Management Plan has a section entitled Safety Features.  It contains these proposals:

In the lake, a row of buoys will be installed 50 feet away from the wall in order to keep watercraft away from the range of falling rocks.  The top of the wall is already essentially inaccessible because of the railroad corridor and the existing chain link fence.  However, a thorny vegetated area (approximately 10 feet wide) will be installed on top of the wall to further prevent people from accessing the precipice.  Also, additional chain link fence will be installed perpendicular to the existing fence on each end to prevent access from the sides.  

The subdivision application package contains three large drawings, one entitled Existing Conditions and dated 03-17-17.  I find no reference in it to the safety features proposed in the Lake Management Plan.

The quarry is no longer being worked and there is risk of intrusion between the railroad corridor and the steep quarry faces along the north wall.  If not already done, the proposed safety features should be installed immediately.

The fence at the top of the quarry wall and the buoys near the bottom will require periodic inspection and maintenance.  With subdivision, the owner of each new lot will have responsibility for sections of both safety features.

The probability for proper inspection and maintenance of these critical safety features will be greater, if the tract is not subdivided and responsibility is with one owner.  

[9] Quarry Rehabilitation and Lake Management:   During review of Plan 2003, it was agreed that the pit will over many years fill with water from precipitation to the level of the surrounding ground water.  Surface elevation will then stabilize, and turnover of lake water will be very slow.  PB consultant Steve Souza testified that this large and deep lake would probably  eutrophy, and he proposed installation of a system for aeration.  He proposed this again in a letter to the PB on 02-02-12.  That letter is here and key language from page 5 is below:

At a minimum MQI needs to be prepared to implement algae control measures and potentially be prepared to install and operate some type of aeration system as part of the lake’s long-term maintenance and management. Such maintenance activities were discussed with MQI in the review of earlier reclamation plans, and were contained in documents and correspondence prepared by MQI’s consultants.

MQI consultant Omni Environmental argued that aeration would not be required.  Approved Plan 2011 does not require installation of an aeration system now, but it does require ongoing monitoring of lake water quality.

In addition to the risk of contamination from the AOC, there is also risk to the lake of contamination from on-going activities in a residential community established on the south slope (or from any other kind of development there).

This lake will be a large presence in the township forever.  No one knows exactly what will happen.  My hope and expectation is that it will become a valued private or public asset.  But it can also become a problem.  Common sense dictates that we prepare now to monitor conditions over the long term, and to address any problems quickly when, and if, they are observed.  Monitoring and management of the lake will be required for as long as people live here.

Lake management will be much easier with the whole lake owned by a single entity.  The lake, the surrounding undeveloped land, and the AOC, should not be subdivided from each other.

[10] Responses to Future Problems:  Consider six possible scenarios:  Cases A1, A2 and A3 without the proposed subdivision and Cases B1, B2 and B3 with the proposed subdivision.

Case A1: The HOA proposes a walking path along the south shore of the lake that loops  north along the west shore to the north wall, then west and up to the top of the embankment, then south and down to a junction at the south shore.  (The development plan submitted in October 2017 shows a loop path like the one described here.)  There will be two fishing piers at the lake west edge and a lookout platform and picnic area near the top of the embankment.  NJDEP regulations will permit these structures, because they will not permanently disturb the rock cap, and there will be no risk to users from the contaminants in the soil beneath the cap.

The HOA gets NJDEP approval and constructs the path, piers, and lookout platform.

Case B1:  Same as A1, except the owner of Lot 6.01 does not allow the loop path, fishing piers, picnic area, and observation platform on his land.

Case A2:  Many homes have been built and occupied on the south slope, and an HOA has responsibility for maintaining the lake and surrounding land.

The lake has filled, there is an ongoing water testing program, and NJDEP has approved the lake  for fishing, swimming, and non-motorized boating for several years.  The lake water tests show gradually increasing concentrations of SVOCs (semi volatile organic compounds) that are known to be in the imported fill.  One is benzo(a)pyrene and its concentration is below the safe limit but rising slowly.  There are similar results for other SVOCs.

Note:  The safe concentration limit for benzo(a)pyrene in water is much lower than in soil:  0.1 part per billion for water and 0.2 part per million for soil.

The HOA has found that the permitted recreational uses contribute greatly to the quality of life for the residents and also raise the values of their homes.  It retains consultants who review the problem.  They determine that rain beating down on and thru the porous rock cap is washing SVOCs from the contaminated soil in the AOC embankment into the lake.  The fix is to lay a clay cap over the rock cap.

The HOA decides that correcting the problem and preserving the lake uses is worth the cost.  It gets NJDEP approval to install the clay cap, does the work, and the problem is solved.

Case B2: Same as Case A2, except that the HOA is in Lot 6.02 and the owner of Lot 6.01 does not want to install the clay cap, even if the HOA pays for it.  There is a long negotiation while the problem gets worse.  The parties eventually reach an agreement, but the residents are denied use of the lake for a few years.

Case A3:  The HOA establishes regulations for boating in the lake, including wearing of life jackets, times of use,  a designated put-in ramp at the east end of the lake, and use restricted to members of a lake association.  The HOA has liability insurance to cover risks from this activity.

The buoys installed to keep boaters away from the quarry faces have not been properly inspected and maintained and have broken loose.  A kayaker goes too close to the wall and is hit by a falling rock and seriously injured.  The insurance will cover any costs and litigation arising from this accident.

Case B3:  Same as A3, except that a non-member sneaks in with his kayak at the west shore of the lake in Lot 6.01, and is hit and injured in the section of the lake in Lot 6.02.  There is long and expensive litigation to determine who is responsible and liable.

Conclusion from these cases:  Ownership of the AOC should not be separate from the ownership of the lake and surrounding undeveloped land.  The tract should not be subdivided.

[11] Master Plan:  Common practice is for a municipality to review its master plan every six years.  The Bernards plan was last reviewed in 2009.  A new review is overdue and one may begin this year.

Because there was litigation with MQI in 2009 the PB skipped over the quarry land in its plan review that year.  I have reviewed master plans from earlier years and have found no evidence of any discussion of the specific zoning for the quarry land after quarrying operations stopped.  It appears that the R-3 zoning was assigned to the quarry land at the same time that it was assigned to the surrounding land, and then never changed.

I believe that a serious review today of the appropriate uses for the quarry land will lead to a recommendation to allow multi-family dwellings on the buildable land on the south slope and designation of the lake and surrounding land as open space.  This open space can be owned by the HOA as in the examples above.  But it can also be owned by the township as in the example below.

It would be unwise and improper to subdivide the quarry property before the next master plan review is completed, and the quarry land has been included. 

[12] Quarry Park:  The future lake will be largest in our region and deep.  The Lake Management Plan estimates 50 surface acres and a max depth of 100 feet.

In the reviews of quarry rehab plans that began in 2003 we assumed that the future lake would be suitable for fishing, swimming, and non-motorized boats.  Last would include canoes, kayaks, row boats, and small sailing boats.  (Today we can add paddle boards.)

In 2004 I designed a concept plan for the quarry called Quarry Park and Lakeview Village.  The map of the concept plan is here and a narrative description is here.

I will skip over the history for this plan and say only that it was never seriously discussed.  Some conditions have changed.  However, this concept plan remains relevant in discussions of the quarry land today.

We had little reason to fear contaminants in 2003.  Their discovery in the imported fill in 2008 cast a cloud over future water quality and recreational uses of the lake, and that cloud remains.

I have reasons to expect that future water quality will be suitable for the uses proposed above.  But I can’t prove this now, and I do have some doubt.  I suspect that most township residents with an interest in the quarry have similar doubts, perhaps greater than mine.  The only way to lift the cloud and remove the doubts is to begin a program of lake water testing and watch the results over several years.

Because there is potential for several popular recreational uses, it would be a sin to close off these opportunities before solid data is available to inform the decision.  For the same reason, it would be unwise to commit to these uses now.

No options for future use should be foreclosed now.  The quarry property should not be subdivided.

Bill Allen    02-24-19 new    03-02-19 revised

This site is constructed with WordPress software.  When using the Firefox browser there is a problem with unintended hyperlinks that creep into the post.  They have double underlines  and take you to advertisements.  Skip over them.  WordPress is trying to fix this problem.

The intended hyperlinks have single underlines.  They take you to new tabs and have relevant info.  I encourage you to use them.

I do not see above problem when using the Chrome browser.

 

 

Posted in Bernards | 1 Comment

New Mount Laurel Rules: Close the Gap!

Posted on January 28, 2019 by Site Admin

I emailed the letter below to the Bernards Township Committee on January 28, submitted it officially at the regular meeting on January 29, and summarized the key points during the second public comment period.

Bill Allen    01-29-19

To:                  Mayor and Members of Bernards Township Committee                   

Subject:           New Mount Laurel Rules:  Close the Gap

Introduction:  In 2018 your committee revised zoning at Dewy Meadow and Mountainview Corporate Center (MVCC)  pursuant to litigation and an agreement with the Fair Share Housing Center (FSHC). These actions will produce new units of market priced and affordable housing.

“Affordable housing” is defined as housing affordable for low and moderate income households.  Its construction requires subsidy.  The obligation to provide this housing originated in the Mount Laurel I decision of the NJ Supreme Court.

Many residents opposed the rezoning actions, particularly the one for MVCC.  There is discussion in the community of what should be done to avoid future actions of this kind.

I joined the discussion with a letter published in the Bernardsville News on January 24.  This letter builds on that one.  It contains a new proposal.  If implemented, it will greatly simplify the task of determining and assigning responsibility for the provision of affordable housing, and make the outcomes more reasonable and fair.

I focus here on future housing needs, what the courts call “prospective” needs.  Satisfying unmet past needs is more complicated and I will leave that challenge for another day.

The Bernards/FSHC agreement grew from litigation involving Bernards and some other towns. Presiding was Judge Thomas C. Miller.  I have never seen any analysis that explains the number of housing units in the Bernards/FSHC agreement.  An OPRA request to Denise Szabo produced no analysis last year.  When David Banisch proposed to the Planning Board that it change the Bernards Master Plan to accommodate the proposed zoning changes, he explained how the township would satisfy the agreement numbers, but not how these numbers were derived.

Therefore, I have relied on a 2017 decision by Judge Mary C. Jacobson in a case involving Princeton and West Windsor Townships in Mercer County.  And also on a 2017 analysis by planner Dr. David N. Kinsey, who works for FSHC and who advised the courts in the Mercer County and Bernards cases.  I understand that the Jacobson decision was the model used by Judge Miller.

What I propose will require new state legislation and approval of it by the courts, and a new COAH to guide and monitor what is happening.

You and many others will have to lobby our state representatives to get it approved.  This will be a long and tedious process.  It will be worth the effort.      

Mount Laurel I and II:  What we call “Mount Laurel I” was a decision of the NJ Supreme Court in 1975.  The court ruled that developing municipalities must in their land use regulations provide for their fair share of housing that would be affordable for households with low and moderate income.  The court left the municipalities to figure out how to implement its ruling.

Bernards Township did.  We designed an algorithm for determining our fair share of  housing affordable for low and moderate income households and a land use mechanism for producing it.  We incorporated these in an ordinance and enacted it in 1976.  We saw our work approved by Judge B. Thomas Leahy in 1978.

There was little progress state-wide.  The Supreme Court handed down its Mount Laurel II decision in 1983.  It ruled that municipalities could not change its regulations and then just wait for the private sector to build affordable dwelling units (DU).  Towns must incentivize builders to put price and rent controls on a fraction of new DU and make them affordable.  The incentive could be a “builder’s remedy”–permission to build more DU than the regular zoning allowed.

I was happy to see Mount Laurel II, because it resolved several questions left open by Mount Laurel I.  Example:  Towns may zone some land for DU on large lots, so long as it satisfies its affordable DU obligation elsewhere.  I did not see the builder’s remedy as the threat it has become.    

Thirty-Five Years Later: The Affordable Gap:  The common builder’s remedy today is a 5-to-1 ratio of total DU to affordable DU;  20% of new DU are affordable.  Bernards agreed last year to rezone the south most lot in MVCC from office to 280 total DU with 62 (22%) to be affordable.

When determining the need for affordable DU, planners usually begin with a 50-yearold guideline from the Dept. of Housing and Urban Development.  It is that households should pay no more than 30% of their incomes for housing.  The planners then look at household incomes for a region and estimate the fraction of the total that should have subsidized affordable DU.  This typically works out to about 40%.

Example:  Judge Jacobson, after hearing the testimony of two planners in the Mercer County case, ruled that 41% of new DU units constructed in the period to 2025 should be affordable.

For planning purposes, the state is divided into six regions.  Mercer County is in Region 4.  Hunterdon, Middlesex, and Somerset are in Region 3.  Suppose that economic projections show a need for 1,000 new DU each year thru 2025 in Region 3.  By the 40% affordable rule 400 DU should be affordable for families of low and moderate income.

Case A:  Suppose the economic projections are correct and that the towns in Region 3 actually approve construction of a total of 1,000 DU in a year.  And suppose also that they all invoke the 20% rule of the standard builder’s remedy and require the builders to set aside 200 DU that will be affordable.

At the end of the year, Region 3 will have approved the projected 1,000 DU and these will include 200 affordable DU.  But by the 40% affordable rule the need was for 400 affordable DU.  There will be a deficit of 200 affordable DU.  Who will pay the subsidy for these 200 DU?  If no one does, will Region 3 start the next year with a deficit of 200 affordable DU that it has to make up?

Case B:  Suppose towns in Region 3 are directed to satisfy the 40% rule and approve construction of 400 affordable DU in the year.  If they all use the builder’s remedy, at the end of the year they will have approved a total of 2,000 DU, two times the need projected in the plan.  This would be an absurd outcome, but recent rulings push in that direction.

Look again at the MVCC agreement.  By the 40% affordable rule, the 280 new DU should include 112 affordable DU.  But the agreement is for only 62.  There will be a deficit of 50 affordable DU.  If the numbers game played in 2018 is played again in 2025, Bernards or others in Region 3 will have to make up the 50 affordable DU deficit.

Every time we approve construction of 100 DU and use the 20% builder’s remedy, we will by the affordable 40% rule create a deficit of 20 affordable DU.  There are many words that one might use to describe this system.  I will say here only that it fails the tests of logic and common sense, and it is unworkable over the long term.

Proposal:  Close the Gap:  I propose that the affordable deficit gap for new developments be reduced to zero by one or more of the actions that follow:

  1. State legislature with approval of the governor and courts will revise the affordable rule down from 40%.
  2. State legislature with approval of the governor and courts will revise the builder’s remedy rule up from 20%.
  3. State legislature with approval of the governor will set up an Affordable Housing Fund to close any remaining gap. It will receive funds from some builders and pay out funds to other builders.  (Something like the Affordable Housing Fund may already exist.  I didn’t check.)  Examples of this action are in the cases below.

Allow the towns to use these revised rules and approve development applications in the regular way as they appear.  There will be huge benefits:

  1. The affordable DU books will be balanced when each development project is approved.
  2. There will be no need for forward looking projections and mandates.
  3. There will be no need for forward looking assignments of affordable DU quotas to towns. (This may be the most huge of the huge benefits.  More on this below.)
  4. Towns will no longer have to worry about meeting some affordable DU obligation. They will use the revised rules and respond to development applications in the regular way as they are submitted.  They will not have to push development to satisfy someone’s estimate of need.  (Remember I am writing here only about future needs, not unmet past needs.)
  5. There will be much less time and money spent on planning and litigation.

Assume that the affordable rule is lowered to 30% and the builder’s remedy rule is raised to 30%, leaving no affordable gap

Case C:  Suppose a builder proposes a development with 100 DU.  The town asks for 30 affordable DU, but the builder wants to provide only 20.  He will get approval from COAH to make a deposit in the Affordable Housing Fund sufficient to subsidize 10 affordable units somewhere else.  The town will approve the development conditioned upon COAH approval.

Note that the town will not become a banker and handle the funds.  Its responsibility will be limited to what is delegated to it in the municipal land use law.

Case D:  Suppose a non-profit organization like Ridge Oak Senior Housing wants to add 10 affordable DU.  It may go to COAH and ask that it subsidize the DU with funds from the Affordable Housing Fund.  If COAH likes the proposal and there are sufficient funds, then it will provide them.

Now assume that the affordable rule is lowered to 35% and the builder’s remedy rule is raised to 25%.  This will leave a 10% affordable gap.

Case E:  Suppose the towns use these revised affordable and builder’s remedy rules that do not close the affordable DU gap.  Mount Laurel I and II dealt with municipal land use regulations.  There is nothing in them that mandates that towns use their own general funds to subsidize affordable housing.  And I doubt that some future Mount Laurel decision will find this mandate in the state constitution.

If the state does not grant the towns sufficient land use authority to close the affordable DU gap, then it must provide the necessary funds from other sources.

Case F:  There are proposals to build single DU and small groups of DU where affordable set asides won’t work.  In these cases, the builder will make a deposit to the Affordable Housing Fund sufficient for subsidizing one-fifth of the DU he will build.  This is similar to Case C.

Case G:  A fundamental holding in Mount Laurel I was that employment growth in a region generates growth in demand for housing in the region.  Those who build new or expand facilities that employ people should share the responsibility to subsidize the related affordable DU.  COAH will determine, and the legislature will approve appropriate fees for this purpose for new construction.  As in Case C above, payment of these fees to COAH will be a condition for municipal approval of a project.  Something like this was done in the past, but I don’t know its current status.     

Objectors:  There will, of course, be persons who object to this proposal:

  1. If the affordable rule is reduced from 40%, liberals will say we are not meeting our responsibilities to households with low and moderate income.
  2. If the builder’s remedy rule is raised from 20%, builders will say we are killing their business and raising prices for non-subsidized DU.
  3. If the state raises taxes to pay subsidies and fill the affordable gap, almost everyone will complain.

There is a simple and appropriate response to all of these objectors:  “You have valid concerns, but we are trying to resolve a real problem in a reasonable and fair way.  Do you have a better suggestion?”

Allocation of Quotas for Affordable DU:  Here I rely on a narrative report and a large Excel Workbook produced by FSHC planner Kinsey.  To review them go to

http://fairsharehousing.org/blog/entry/updated-fair-share-calculations-show-housing-need-remain-great-in-new-jerse/

In the current system a regional need is determined first.  Then the towns are allocated quotas of affordable DU for them to provide.  Dr. Kinsey computes these by averaging ratings for three factors for each town:  commercial ratables, developable land, and household income.  I see problems with each factor, but will limit my comments here to developable land.

It is reasonable to consider land in assigning responsibility for building DU.  But defining and measuring developable land are problematic.  Dr. Kinsey assembled lots of data, made many calculations, and produced an estimate of the developable land in each town.  In my opinion, the results do not pass two tests:

  1. Analysis: It is not possible to follow the computational path from the total land area in a town to the estimate of developable land area in the town.  There are gaps.  It should be possible to point to any place on a municipal map and know whether it is judged to be developable or not developable and why.  One cannot do this.
  2. Common sense: Below is a table with land areas for Bernards and three townships to the west.  Kinsey relied on aerial mapping, and overlays of regions defined in the State Development and Redevelopment Plan, Highlands Plan, and Pinelands plan.   He did not use tax maps or assessor data.  I am familiar with these towns because I grew up in Hunterdon and have lived 55 years in Somerset.  Use of these plans at first seems reasonable, but viewed together, the results don’t make sense.
Township Total Township
Acres		 Kinsey Developable Acres Percentage
Developable
Acres
Bedminster 16,704 49 0.29
Bernards 15,296 1964 12.84
Clinton 19,136 165 0.86
Tewksbury 20,160 8 0.04

With implementation of the Close the Gap proposal, there will be no further need to allocate quotas to meet future housing needs. 

Wrapup:  The Close the Gap proposal is new.  I think it makes sense, will work, and will make life easier all around.  But I may have missed something.  I ask that you consider it.  And I welcome comments, criticisms, and questions from everyone.

Bill Allen

 

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Mount Laurel Needs New Rules

Posted on January 21, 2019 by Site Admin

Letter below was submitted to the Bernardsville News on 01-21-19.  It was published on line and in the print edition 0n 01-24-19 under the title “Affordable housing system needs a new design.”

EDITOR

What we call “Mount Laurel I” was a decision of the NJ Supreme Court in 1975.  It ruled that developing municipalities must in their land use regulations provide for their fair share of housing that would be affordable for households with low and moderate income.  This eminently fair and reasonable ruling has evolved into an equally unreasonable and unfair system for assigning responsibility to provide affordable housing.

The present system is a complex numbers game.  People sitting around a table don’t agree on the rules, and people outside the room don’t understand what’s happening.  The system has many problems.  I will describe three below and propose fixes.

I will use rough numbers derived from a 2018 decision by a Superior Court judge in Mercer County, that was the model for negotiations in the recent housing litigation involving Bernards Township and other towns.

ONE:  The state is divided into six regions.  Hunterdon, Middlesex, and Somerset are in Region 3.  The plan for the state projects a need for 1,000 new dwelling units (DU) per year in Region 3 thru 2025.  400 DU (40%) should be affordable for families of low and moderate income.

To be “affordable” the DU must have price or rent controls.  Their construction requires subsidy.

The 40% number derives from a 50-yearold guideline from the Dept. of Housing and Urban Development—households should pay no more than 30% of their incomes for housing—and from an analysis of current household incomes.

We live today in less liberal times and many people need help of many kinds.  I wonder if subsidy for housing for 40% of our households is the right allocation of our limited funds today.  If our representatives in Trenton believe it is, then they should provide some or all of the funds for the subsidy.

Case A:  Suppose towns in Region 3 approve the construction of 1,000 DU in a year, and that they require the builders to set aside 200 DU (20%) that will be affordable.  This 5-to-1 ratio of total DU to affordable DU is called the “builder’s remedy.”  It is commonly used and is approved by the courts.

At the end of the year, Region 3 will have approved the needed 1,000 DU and included 200 affordable DU.  But the need was for 400 affordable DU;  there is a deficit of 200 affordable DU.  Who will sidize these?

Case B:  Suppose towns in Region 3 are directed to approve construction of 400 affordable DU in a year.  If they all use the builder’s remedy they will approve a total of 2,000 DU, two times the need projected in the state plan.  This would be an absurd outcome, but recent rulings push in that direction.

Proposal:  Revise the 40% rule down and the 20% rule up.  Fill in any remaining gap with state funds.

TWO:  After the regional need is determined, the towns are allocated quotas of affordable DU to provide.  The quotas are computed by averaging ratings for three factors for each town:  commercial ratables, developable land, and household income.  I see problems with each factor, and will comment here on land.

It is reasonable to consider land in assigning responsibility for building DU.  But defining and measuring developable land are problematic.  Here I will use an analysis by a planner who works for the Fair Share Housing Center, and who advised the courts in the Mercer County and Bernards cases.

The total Bernards land area is 23.9 square miles.  Bedminster is larger with 26.1 square miles and is less developed than Bernards.  But the quota for Bernards is 5.0% of the region’s total quota for affordable DU, and for Bedminster it is only 0.1%.  Clinton and Tewksbury Townships with 29.9 and 31.5 square miles, respectively, are also larger and less developed than Bernards.  Their quotas are only 0.4% and 0.02%.  Viewed together, these quotas make no sense.

Proposal:  Define clearly what is developable land, and determine an accurate method for measuring it.

THREE:  Six Bernards churches saw a need in the 70s and built the Ridge Oak Senior Housing community.  Rentals are subsidized with federal funds and all units are affordable.  In the recent litigation the township was not allowed credit for the units built before 1980.  This is unfair.

Proposal:  Change the law to give credit for all affordable DU in a municipality.

Wrapup:  The evolution of the law and practice since Mount Laurel I and Mount Laurel II in 1983 has brought us to an unacceptable place.  We need to start over, work from the fundamental principles in these decisions, and design and implement a new system for provision of affordable housing.  This will require new legislation.  System administration will require a new Council on Affordable Housing (COAH).

Bernards and other towns should enlist residents to study the issues and make recommendations to their state representatives for the design of the new system.  They should not sit and wait for Trenton to lead.  It will be essential that they take the long view and recognize that the system they design must be fair and reasonable for the whole state.

Bill Allen    01-21-19

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Carbon Fee Schedule: Real Time Adjustments

Posted on December 5, 2018 by Site Admin

HR 7173 was introduced in the House of Representatives on 11-27-18 with the title Energy Innovation and Carbon Dividend Act of 2018.  The bill provides for a system of carbon fee and dividend that the Citizens’ Climate Lobby has promoted for many years.  The text of the bill is here.     

The proposal below is to fill what I believe is a serious omission in the bill.  Notes are below the proposal to clarify issues raised by readers.    Bill Allen    12-05-18

A new bill was reintroduced in the House in January 2019 as HR 763.  It appears to be the same as HR 7173, except that the reference year for emission reduction was changed from 2015 to 2016.  Proposal below still applies.    Bill Allen    01-18-20

Carbon Fee and Dividend

The Citizens’ Climate Lobby (CCL) advocates for a system of carbon fee and dividend (CFD) in which a fee is imposed on each fossil fuel in proportion to the CO2 emitted when the fuel is burned.  The fee will start low at $15 per metric ton of CO2 in Year 1 of the program and then rise by $10 per ton in each year thereafter for about 30 years.  Fee revenue will be returned to the private sector via dividends to households.

The goal of CFD is to reduce the emission of CO2 and to slow global warming and the associated problems of climate change, sea level rise, and ocean acidification.  The strategy is to raise fossil fuel prices and encourage consumers to conserve energy and to transition to non-fossil energies, and also to encourage the business community to develop and market goods and services that will help consumers do this.   Members of the business community act as consumers in many of their activities.

I believe that most members of Congress (MOCs) will not be willing to commit to a long term program of this kind without provision for regular reviews and adjustments along the way.  And their constituents will not want them to.  I call these “real time adjustments” and describe one way to make them below.

Carbon Fee Schedule:  Real Time Adjustments

In Brief

Every four or six years convene a panel of experts who will review the CFD program and write a report, which will include a recommendation to raise the fee schedule, to lower it, or to leave it unchanged.  If the recommendation is to change the schedule, incorporate it in legislation that will be acted on by each house of Congress with a straight up or down vote with no amendments.

The Panel

The panel’s recommendations will be highly political—in the good sense of that word, not partisan.  Members of the panel should be drawn from the national Administration, so that it may lead and take ownership of the issue.

CFD will reduce fossil fuel use.  It and global warming will have many environmental, economic and social consequences, domestic and global.  The panel should include people with diverse perspectives and knowledge sets.  For example, it should include representatives of the departments of Defense, Energy, EPA, Labor, State, and Treasury.  (Note 1)

Timing

It will be appropriate for action on a carbon fee schedule to be debated in an election campaign.  But the actual vote should be after the “silly season” and when new MOCs will have time to come up to speed.  Therefore, CFD reviews should be scheduled to produce Congressional action in odd numbered, non-election years.  (Note 4)

A long term carbon fee schedule provides the basis for planning, and the more certainty in the schedule the better.  The intervals between CFD reviews should be

  • long enough to provide sufficient certainty, but
  • not so long that problems become serious or opportunities are missed, and
  • long enough for prior actions to take hold and results evaluated, but
  • not so long that MOCs are unwilling to take the plunge and vote for CFD.

My gut says that the panel should conduct its first review and make a proposal that will be voted on by Congress in Year 4 or 5 of the program, whichever is the odd year, and that subsequent reviews be made every four or six years.

For reasons like those in cases below, there may be times when the panel will want to conduct a follow-up review in less than the regular number of years.  Write the law to allow the panel to include this provision in its recommendation to Congress and be approved in the same up or down vote.

Review by Panel

In conducting its review the panel may invite experts from inside or outside of the government to write reports or to testify at public hearings, and it may deliberate in open or closed meetings.  It will write its report with its recommendation, approve it by an affirmative vote of a simple majority, and submit it to Congress.  (Note 3)

CFD program progress will be most rapid if the economy is healthy and the public enthusiastically supports and participates in the effort.  The optimum fee schedule will be one that drives a rapid transition, while sustaining and reinforcing these conditions.

The carbon fee schedule proposed today by CCL is a good place to start, but it may not be optimum.  After several years of results the panel may decide that an overall adjustment up or down is appropriate.  Fee schedule stability is important.  The panel should be reluctant to change the schedule, and should do this only when there is good justification.

Review by Congress

Congress may use regular procedures and submit the panel’s report with recommendation to one or more committees for their reviews.  These committees may hold hearings and call witnesses and then report their recommendations.

At the end of this process, and if the panel’s recommendation is to change the fee schedule, each house will call for a straight up or down vote on the panel’s recommendation without amendments.  With an affirmative vote of a simple majority in each house, the carbon fee schedule will be revised in accord with the recommendation.  Without these two affirmative votes, the schedule will remain unchanged.  (Note 2)

Some Possibilities

Case 1:  Economic down-turns over the next 30 years are inevitable.  Suppose a review is made in the first or second year of a deep one and the panel determines that the carbon fee is a significant drag on the economy.  It would be appropriate to reduce the fee schedule for a few years and conduct a new review at the end of this period.

Case 2:  Suppose the economy is going strong and the panel finds that rising fossil fuel prices are being absorbed easily and not producing much incentive to reduce fuel use.  It would be appropriate to raise fees for a limited period and schedule a new review at the end of it.  The panel might then decide that the higher schedule of fees should be made permanent.

Case 3:  Suppose that

  • the anti-nuke people learn that the danger of CO2 emitted from fossil fuel in the next few decades is greater than that of the radiation emitted from nuclear waste in the next millennium,
  • they withdraw their opposition to use of nuclear energy,
  • there is rebirth and rapid growth of nuclear power for electricity generation using smaller, safer, and lower cost designs, and
  • these are available and wholly adequate to replace natural gas powered generators.

It would be appropriate to raise the carbon fee schedule and drive down use of natural gas more rapidly, so long as this does not adversely affect other parts of the economy.

Case 4:  Suppose that

  • evidence mounts that we must act more aggressively to phase out fossil fuels,
  • this is judged to be feasible, and
  • the public supports this action.

It would be appropriate for the panel to recommend a higher carbon fee schedule.

Case 5:  CCL commissioned a report called the Household Impacts Study (HIS) in 2016.  It projects the impacts for five income quintiles of households in Year 1 of the program.  In this year the average households in the lower three quintiles receive more in dividends than the amounts of the price increases for the goods and services they purchase.  The study does not extend to later years.

Suppose that the panel’s report in a later year shows that lower income households are faring much worse than the HIS projected and that they need help.  A change in fee schedule alone would not solve the problem.  Other action by Congress would be required.  The report could stimulate Congressional action.

Bill Allen     12-05-18 new    12-13-18 revised

Note 1:  The departments to be represented on the panel will be specified in the bill.  The individuals who will represent the departments will be appointed by the heads of the departments.  (01-09-19)

Note 2:  The process recommended here follows that for Base Realignment and Closure (BRAC).  It is used to make military installations more efficient and sometimes close them.  A commission makes a recommendation and Congress votes it up or down with no amendments.  (01-09-19)

Note 3:  The panel may and should use analyses and reports already available, to the extent that they deal with the outcomes being examined by the panel.  (01-09-19)

Note 4:  “Silly season” is a term TV journalist David Brinkley used to use for political campaigns.  Most observers of Congress agree that odd-numbered non-campaign years are more productive than even-numbered campaign years.  (01-09-19)

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Affordable Housing and Rezoning Mountainview Corporate Center

Posted on September 11, 2018 by Site Admin

The letter below was prepared for the Bernards Township Committee meeting on 09-11-18.  Extracts were read and some other comments made during the public hearing on Ordinance 2405, and the full letter was emailed to the Township Clerk the next day.

To:                Mayor and Members of Bernards Township Committee

From:          Bill Allen

Subject:     Affordable Housing and Rezoning of Mountainview Corporate       Center

Introduction:  You are preparing to adopt Ordinance 2405 to rezone one block in the Mountainview Corporate Center (MVCC) to allow multifamily dwelling units (MF DU).  Your main purpose appears to be production of units that will help satisfy the township’s Mount Laurel obligation for affordable housing (AH).  I oppose this ordinance for three reasons:

  • It is bad land use planning. It is unwise to open the door to MF DU on township land south of I78, and on this tract in particular.
  • The method for determining our AH obligation has not been established.
  • It is wrong to sell commercial zoning to produce affordable housing.

I recommend that you table Ordinance 2405 tonight and notify the owners of MVCC.

My reasons follow.  Because AH is driving this proposal, I will go there first.

Housing in Bernards Township:  A drive around the township will show that Bernards has a greater diversity of housing than any municipality in our region, and we have lots of it.  Data below are from a file maintained by our tax assessor:

  • There are a total of 9560 residential units.
  • Dwelling sizes range from 525 DU (dwelling units) with one bedroom (5.5%) thru two, three, and four bedroom counts to 272 DU with five or more bedrooms (13.3%).
  • There are 416 DU assessed for less than $200 thousand and 43 DU assessed for more than $2 million, and we have everything in between.

Bernards was one of the first, perhaps the first, to accept a Mount Laurel fair share obligation in 1975.  It enacted a responsive ordinance in 1976 and saw it approved by Superior Court Judge Thomas Leahy.  Bernards has never failed to meet its Mount Laurel obligations as these evolved from that time to this.

Bernards has incorporated AH (affordable housing units as Mount Laurel regulations define them) in regular developments such as The Cedars and Society Hill, has made Regional Contributions to municipalities like Phillipsburg, and has helped finance AH units in institutions such as Ridge Oak and the VA.

With this excellent record, it is absurd to argue that Bernards must now scramble and make a deal with the Fair Share Housing Center (FSHC) to provide for some number of new affordable units.  This to be done

  • before there is an opportunity for interested parties—Township Committee, Planning Board, staff and advisors, members of the public–to consider how best to do this, and
  • before there is even disclosure and review of the methodology that is used to determine this number.

Mount Laurel Fair Shares:  At your meeting two weeks ago John Belardo tried to reassure us that the fair share number that you have agreed to is the result of lots of hard bargaining with judicial supervision, and is reasonable.  This didn’t work for me.  I left with an image of attorneys running around the court house and playing chaotic games with no rules.

The quotas for Mount Laurel affordable housing units (aka fair shares) are very important numbers.   They should be based on rules for data and methodology that have been carefully reviewed and approved by responsible persons.  At the end of the day these rules should be published and available to everyone, and then used by everyone.

I never learned the methodology used by COAH to determine fair shares during my time on the Township Committee from 1996 thru 2001.  The system seemed to be working smoothly with no significant problems.

I was out of town in mid-August and learned about your MVCC proposal on August 21.  Since then I have read about fair share proposals from four persons:

  • Judge Mary Jacobson, who ruled in a case involving Princeton and West Windsor that is being used as a guide by Judge Thomas Miller.
  • Richard Reading, planner used by Judge Jacobson, and now assigned as master planner by Judge Miller to determine fair shares for Bernards and other towns.
  • David Kinsey, planner for Fair Share Housing Center.
  • Peter A. Angelides, planner for Econsult Solutions Inc. (ESI), that is serving as consultant for Bernards and other towns.

Their estimates for fair shares are all different.  A summary is in a report from ESI dated 03-28-18 that I received last week via an OPRA request.  The total AH units projected for the whole state vary from 91,255 to 322,122.  There is an obvious need for a standard set of rules.

In a letter on 02-09-18 John Belardo wrote that Judge Miller had retained Richard Reading to make “a fair share number for any Group Vicinage 13 town, including Bernards.”  My OPRA request did not produce any report or estimates from Mr. Reading, and I conclude that he has not finished his work.

Because Judge Miller assigned Mr. Reading to make fair share numbers, it is reasonable to wait until he completes and submits his work.  Then evaluate this data and methodology and accept or challenge his results.

Why don’t you do this?  One answer is that an agreement with FSHC, that is approved by Judge Miller, will provide protection from builders’ remedy law suits to 2025.  I understand that our current protection will expire at the end of this month without a new agreement, and don’t think this is a significant risk.  Suppose that

  • Bernards officials wait for Mr. Reading to submit his report, and then
  • calmly, deliberately, and openly consider what to do, and
  • the process continues for several months and leads to a responsible outcome, then
  • what are the risks?

I doubt there are any developers waiting at the gates and ready to pounce when protection expires this month.  Down the road CIP might try to do this, but they are not ready now.

Key for minimization of risk will be real action to meet our Mount Laurel responsibilities, not just words and foot dragging.

Rezoning of MVCC:  The land south of I78 has for many years been zoned for the uses it has today:  office buildings and single family houses on large lots.  There are also large tracts owned by the township and county for recreation and open space.  There are some homes on smaller lots that were built before zoning regulations were adopted.  During my 50 years in town I have never heard a proposal for multi-family units until now.

Except for some large new homes and new streets like Emerald Valley and Van Holten, the area has changed little in 50 years.  I believe residents like it the way it is.  Zoning regulations are most easily defended when they have been in force for many years and are viable for the permitted uses.  These lands meet these tests.

Insertion of multi-family units into this mix on MVCC land will change the picture significantly and put current zoning regulations at risk.  The tax map shows three lots of 21 acres with access to Mountain Rd and one of 65 acres with access to Martinsville Rd, all near MVCC.  When the township must begin planning for a new batch of AH, a developer may come forward with a plan to build multi-family units at high density on one of these properties, some of which will be affordable.

Township officials may argue that the proposed development is not suitable because the land is not in the sewer service area.  The developer may counter with a proposal for a large septic system or package plant, and he will probably prevail in court.  I can even imagine a judicial ruling that the sewer service area be expanded to include the proposed development.

Today these future actions may be regarded as extreme, but so may your current proposal in Ordinance 2405 for MVCC.  It will be better to not open the door to MF DU and risk these outcomes.

  • I don’t know why the most southern lot in MVCC has not been developed. I do know that there are vacancies in the office buildings on Allen Rd. And there are several large office buildings diagonally across the I78 interchange in Warren.  So maybe there is a glut of office space that won’t be worked off for decades.

If careful analysis confirms this, then the first alternative considered should be conversion to R-3 regulations that govern the nearby Emerald Valley and Van Holten communities.  Use septic systems and save the sewer capacity for something else.

  • The subject lot is at the top of a hill, at the end of a 0.7 mile road, and surrounded by woodland. Its isolation makes it a good place for a conference center.
  • This isolation makes it a poor place for what is being proposed on it. I worry most about the children in low and moderate income households.

After school activities are a very important part of school life in Bernards.  Parents or other household members spend a lot of time picking up students in the afternoon, or driving them to and from some evening event.  Children, who live in the units proposed for low and moderate income households, are less likely to have a household member with a vehicle who can perform this function.

Some of these children will be cut off and denied the full school experience to which they are entitled.

Recommendations:

Near Term:

  • Table Ordinance 2405 and advise the MVCC owners of this action.
  • Advise Judge Miller and FSHC that you will wait to see and evaluate Mr. Reading;s fair share estimates, and then decide how to proceed. OR
  • Settle with FSHC in accord with the present agreement and number of AH, with the exception that you will not proceed with the MVCC proposal, and that you will determine how best to provide the 62 units it would have provided.

Longer Term:

  • Review and evaluate the fair share estimates in the Reading report when it is received, and the facts and methodology on which these are based, and engage the Planning Board and public in this process.
  • Design a process for buying existing low cost DU via bids, writing them down, and putting them back on the market for sale or rental as Mount Laurel affordable units. Determine the financing required for this.

My rough estimate from actual 2017 sales is an average write-down of $88K per unit.  I think a bidding process would do better, particularly if most purchases are made during the down part of a home sale cycle.

  • Invite CIP or its successor to make an appropriate proposal for the quarry land.

Mount Laurel Doctrine 

The case called Mount Laurel I,  that was decided in 1975, followed several years of court rulings in exclusionary zoning cases.  The NJ Supreme Court tried to provide guidelines for these disputes by promulgating the principle that developing municipalities, that had welcomed business ratables—as Bernards did with AT&T–had to provide for its fair share of housing that would be affordable for low and moderate income households.  The Court left the details of implementation to the municipalities.

The Court thought that zoning changes, that allowed more DU per acre and removed restrictions against garden apartments and town houses, would produce affordable housing.  History shows that this was not enough.  Developers continued to build housing for the highest prices the market would support.

Mount Laurel II in 1983 gave us the builder’s remedy for projects in which the developer would provide some fraction of affordable units–initially 20%–in return for higher development density.  I don’t know the details, but I believe The Cedars, Society Hill, and The Hills were each approved with affordable units produced by the builder’s remedy.

I never liked the builder’s remedy, but never had to deal with it when I served on the TC in 1996 to 2001.

You have entered new Mount Laurel territory by selling zoning to get affordable housing.  This began with Dewy Meadow.  One may argue that the land use issues there favor a conversion from retail to residential use.

Not so with the proposal for MVCC.  I see no compelling land use argument for changing from office development to residential.  I believe that the argument of no future demand for office space is weak.

We don’t need more housing units.  We do need more units that are affordable.  We have a financing problem, not a land use problem.  We need funds to buy units at market prices and then write them down to affordable prices.  I propose that you work with your advisors and determine how best to do this to meet our current Mount Laurel obligation.

State action is required for the long term.  If the state, acting thru its elected representatives, decides that some of its residents need subsidized housing and that sufficient quantities cannot be provided by land use mechanisms currently employed, then the state should provide some or all of the funds necessary to implement the buy-and-write-down strategy proposed here.  Bernards and other municipalities like us should not bear the total burden.

Wrapup:  Mount Laurel I began what we call the Mount Laurel Doctrine.  I fully supported it in 1975.  The land use tools we used initially to implement this doctrine are worn out in towns like Bernards.  We need a new doctrine and new tools.  The buy-and-write-down strategy proposed here can be one of these.

We should engage the community and our state representatives to formulate and implement this new Mount Laurel Doctrine.     

Bill Allen    09-11-18

This is revised and 2nd version of this letter today.

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CFD: Return carbon fee revenue to the private sector

Posted on July 30, 2018 by Site Admin

There is broad agreement among climate scientists that we must reduce our burning of fossil fuels and the production of carbon dioxide (CO2) in order to slow and ultimately stop the process of global warming, and the associated problems of climate change, sea level rise, and ocean acidification.  There is broad agreement among economists that the best way to make this happen is to raise the price of fossil fuels.  These beliefs have led to several proposals for a fee on each fossil fuel that is based on the amount of CO2 produced when the fuel is burned.

Members of the Citizens’ Climate Lobby (CCL) propose a system of Carbon Fee and Dividend (CFD).  It will impose gradually rising fees on fossil fuels and return all fee revenue to the private sector, with the single exception of a small amount to cover CFD administration.  The estimate of this cost is about 1% of fee revenue in Year 10 of the program.

Some proponents of a carbon fee propose that the some or all of the revenue be used for other purposes.  Examples:  reduce payroll taxes, help people in the coal industry who will hit hardest by carbon fee, fund research for ways to conserve energy or switch to non-fossil energy.

I will make five arguments below in support of CCL’s position.  Some comments go beyond CCL’s official pronouncements, but I don’t think they conflict with them, except in one case I will note.

ONE:  Carbon fee dividends are intended to help adjustments prompted by the rising costs of products and services dependent upon fossil fuels.  They will be sent to households, who will spend and return the funds to the private economy, where both consumers and the business community will use them.

CCL commissioned a Household Impact Study in 2016.  This estimates that 53% of households nationwide will receive more dividends in Year 1 than they will spend for the price increases.  The estimate for NJ District 7 is that 40% will come out ahead.

The flip side of this analysis is that, with return of all carbon fee revenue, 47% of households nationally will not receive enough dividends to cover higher prices in Year 1.  In NJ District 7 the number will be 60%.  Any diversion of carbon fee revenue to other programs will raise these numbers.

TWO:  Fee revenue returned to the private economy will help fund

  • conventional actions to conserve energy, like better home insulation;
  • not-yet-conventional, but doable actions, like home heating controls that will automatically heat to comfort level only those rooms that are occupied, and keep the temperature low in other rooms;  and
  • implementation of new technologies that are now on the drawing board or lab bench, or perhaps not even dreamed of.

THREE:  Serious thinking about global warming—and the associated problems of climate change, sea level rise, and ocean acidification—is long term.  We can shoot for and perhaps almost reach zero CO2 emissions in 30 or 40 years, but we must still learn how to remove CO2 from the atmosphere to bring its concentration back to an acceptable level.  CFD legislation must be designed for the long term.  It will be OK to set a mid-term target and cover some shorter period.  But the legislation should be designed so that CFD can be extended with little fuss when the time comes to do so.

The ideal carbon fee schedule will start low and rise steadily for the period covered by the legislation, say 15 or 20 years.  No one can accurately predict the effects on CO2 emissions or on the economy.  There should be provision for a periodic in-depth and comprehensive review of CFD outcomes, together with a new assessment of the facts and thinking re the warming threat, and followed by a revision of the fee schedule—either up or down–if this is deemed appropriate.   I recommend this review every 4 or 6 years.

(Here I part from the CCL proposal for an annual review.  Interval would be too short and review would become pro forma.)

There will be political pressures during these reviews to scale back the fee schedule.  These will come from people who have been unwilling or unable to adapt to rising prices, and from oil and gas companies who no longer have coal competition and don’t want higher fees on their products.

To counter these pressures it will be essential to have broad public support for CFD.  The best way to build this support is to produce a steadily rising stream of dividends, and to manage it in a manner that is seen to be competent, efficient, and fair.  The larger the dividend stream, the greater will be the public support.

FOUR:  A successful long-term CFD program will require bipartisan support—at the start and over the long term.  By returning all fee revenue to households, we will allow actors in the private sector to experiment and determine the best ways to use less energy and to use non-fossil energies.  We will not have to expand government beyond a small agency to allocate and distribute carbon dividends.

This should help bring on board conservatives who like the free market and dislike government regulation.

(A personal recommendation not yet endorsed by my colleagues:  Give the new agency the name Carbon Dividend Administration or CDA.  Congressional conservatives, who now underfund and strangle the IRS, will have a hard time underfunding an agency with “dividend” in its name.)

FIVE:  CCL has promoted CFD as revenue neutral from the beginning.  Rather than use fee revenue to offset other taxes, it has promised to return all of it to households.  When talking to people I have found this to be a strong selling point.

Some people—usually cynical, middle age men—hear this, laugh derisively, and say:  “The government will never give the money back.”  They are some of the strongest objectors to CFD that I have met.  Any diversion of fee revenue to other government programs, that have been selected by a Congress that few people trust, will play into the hands of these objectors.

Bill Allen        07-29-18

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