By Rikki Massand | December 13, 2021 | Updated December 16
The Rocky Hill Borough Council unanimously approved an ordinance on December 13 that paves the way to approval of a 78-unit housing project, which would include 58 market-price rowhomes, four single-family homes, and 16 affordable condos on a 15-acre field off Princeton Avenue. The project would increase the total number of homes in the borough by about 28 percent, from 280 to 358.
The next step would be for the developer, Toll Brothers, to appear before the Rocky Hill Planning Board. A date has yet to be set.
The architectural design emphasis would be on Craftsman-style or farmhouse features to reflect the
character and feel of residential neighborhoods in Rocky Hill’s Historic District, according to borough council's new proposed affordable housing ordinance.
The Rocky Hill Planning Board did meet earlier this month to discuss the affordable housing ordinance earlier this month. They voted 5 to 4 in favor of supporting the ordinance, which will be discussed and perhaps approved at the public hearing tonight.
To be exact, planning board members Mayor Bob Uhrik, Brian Nolan, Council President Irene Battaglia, Frank Yao, and Mark Blasch all voted in favor of finding the ordinance to be "not be inconsistent with the Master Plan." Planning Board Chair Michael Goldman and board members Linda Goldman, Ivette Mateiescu, and Fire Official Erik Mickelson voted "No" to finding the "ordinance not inconsistent with the Master Plan." That is the legal language, and it is not easy to understand.
The planning board finding, and the borough council's approval of the new affordable housing ordinance are integral to resolve a builder's remedy law suite, filed by the property owner against the borough of Rocky Hill.
Since 1996, David K. Schafer of Jupiter, Florida — owner of the 15-acre property bordering the Van Horne Park and the Princeton Business Center — has sought to develop his land.
The property has been the subject of litigation for many years. Most recently, Schafer had filed a builder's remedy lawsuit against Rocky Hill on or about May 3, 2018 captioned David K. Schafer v. Borough of Rocky Hill et als., Docket No. SOM-L-587-18 (the "Builder's Remedy Lawsuit"). His builder's remedy suit rested on Rocky Hill's obligation to provide affordable housing.
Rocky Hill’s Master Plan calls for cottage zoning on the Schafer tract. However, Schafer now proposes to build a total number of 78 residential units — this represents a compromise from the once-proposed 120 townhomes or 250 apartments that Schafer had insisted on seeing built, and the 60 cottages that Rocky Hill had envisioned on the green space.
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Schafer's housing units, under his current proposal, would be much greater size that an age-restricted cottage development. The rowhomes would be around 3,000 square feet each, larger than the borough’s original “Cottage Zoning'' outlined at units of single-family homes of between 800 and 1200 square feet, intended for a target market of either empty nesters, single residents, first-time home buyers, or a mix.
With the likely change to larger sizes, Borough Planner Tamara Lee says Rocky Hill will attract “more families or larger households,” should the Rocky Hill Planning Board ultimately approve the current plan.
The Schafer tract is within Rocky Hill Borough’s historic district which is listed on both the State and National Register of Historic Places.
“The idea of cottage zoning ... would have been designed in a sort of ‘arts and crafts’ fashion to reflect the historic character of the National Register Historic District … because the units were to have been small and would have been required to be so densely organized, most of their development would have been constrained and some green space would have existed on the site," Lee said.
"The site is on the National Register of Historic Places because of the green space, so part of the National Register listing states Rocky Hill borough as a historic village with a very dense core surrounded by a less-dense ring of development, surrounded by a green belt. The Schafer tract represented part of the green belt, and part of the Cottage Zoning was intended to compact the cottages and housing so as to leave a significant amount of green space. When it was presented and the community seemed receptive to it, the Borough Planning Board amended the master plan to include Cottage Zoning. Subsequently, the governing body (Council) passed an ordinance to allow Cottage Zoning as an overlay on the Schafer tract,” Lee noted.
According to Lee, architecture at the site is a consideration.
“With the Cottage Zoning we had much more detailed architectural guidelines than we do here. The borough has been able to negotiate some significant architectural guidelines [as part of the builder's remedy settlement] and there are some requirements set forth in this ordinance before council,” Lee said.
With the Cottage Zoning, basements and garages were prohibited. Under the proposed settlement, “the units may have basements and some will have one-car garages, others will have two-car garages.” None of the 16 affordable housing flats would have garages. The single-family homes proposed for the Princeton Avenue side would have detached garages behind the new houses.
During the December 2 Planning Board meeting several residents, mainly folks living on Princeton Avenue, asked about the process ahead for the proposed 78-unit multifamily housing complex.
The Gregsons, who live at 22 Princeton Avenue in proximity to the Schafer tract, asked to learn more about the impacts the “huge project” will have. Close to a dozen of their neighbors also stated their interest as they participated in the December 2 meeting.
Mayor Uhrik discussed the proposed design and plan as created by the property owner’s “effective developer” or contract purchaser.
Toll Brothers, a publicly owned company, has expressed interested in purchasing the site from Schafer, and developing it. In 2020, the company was the 5th largest home builder in the United States, based on homebuilding revenue. The company is ranked 426th on the Fortune 500.
Planner Tamara Lee and Rocky Hill's legal counsel were given the opportunity to look at the plans, as was Planning Board Engineer Tom Decker of Van Cleef Engineering. There were multiple iterations, up to 10, as the plans did get parsed out by the borough.
Mayor Uhrik said: "We tried to work in the best interests of our residents. The ideas went back and forth in the negotiations. Remember, this represents an affordable housing lawsuit — the borough is being sued. With the settlement on the table we are doing the best we can to get the best for the borough."
Planning Board Chairman Michael Goldman said the task of the board was fairly constrained as the task was to determine if the proposed ordinance was “substantially consistent or substantially inconsistent with the currently-enacted master plan.” He noted his own view first, stating the ordinance was substantially inconsistent with the plan.
“In a very specific and perhaps an overly-legalistic view of it, I think this is substantially inconsistent with the Borough Master Plan. In 2004, with the Land Use Plan and proposal for essentially 15 buildings on that site comprised of 34 age-restricted dwellings which was never built and the Cottage Overlay zoning, both of them would have provided more BUFFER or more GREEN SPACE around the development than the currently-proposed ordinance would. I think it’s still inconsistent as the concept of having a green space buffer around the development would have been more protected under the Master Plan than under the currently-proposed ordinance,” Goldman said.
Mayor Uhrik listened as planning board member Ivette Mateiescu said she considered the master plan’s reference to green space and/or recreational uses of the Schafer tract. She said the proposed settlement did not show open space or recreational space, and she questioned how not ‘keeping consistent’ with the historic green belt would be in keeping with the historic district. Uhrik has lived in Rocky Hill for almost 20 years, and he says while Mateiescu’s comment was pertinent about the green belt he wondered if Van Horne Park constitutes part of the green belt, which he sees as one-third of the borough, and he noted how that runs across the borough from one end to the other at Princeton Avenue and the borough’s border.
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Council President Battaglia, an engineer by trade, and Tamara Lee explained BMP’s (best management practices) on the proposed plan for the tract as storm water basins, wet ponds, underground storage, rain garden or infiltration basin as stormwater mitigation which will be directed to the designated areas. There is also a sidewalk/walkway proposed for the north corner of the lot which would require an easement across the Industrial Park.
“The idea is to create a pedestrian access point going to the downtown (Washington Street) so that people particularly in the affordable housing units who would be living in the ‘further back’ part of the project would not have to walk all the way to Princeton Avenue just to get into the main business district of the post office and local businesses. The walkway as proposed has just an approximate location and it was also discussed for the other side of the detention basin. The Borough will attempt to secure that easement, but there’s no guarantee that they’ll get it. It would have to be discussed with the owner of the Industrial Park and we have no idea if they would allow it -- if they do, they will have some say on where the walkway would go,” she said.
In addition Lee says “extremely conceptual engineering reviews” for stormwater management have been done on the site, and if the ordinance and settlement goes forward the developer would still be obligated to meet all New Jersey State stormwater regulation requirements.
“They just became more difficult and there is no way around that — Rocky Hill has no jurisdiction over stormwater and we cannot change state regulations. If they can't, they will have to modify their plan. And we talked extensively with them about the existing drainage problems in that back corner; they can’t be made worse and they will have to be made better,” she explained.
Battaglia said the more strict stormwater regulations implemented by the state are moving away from stormwater retention basins and ponds, with better BMP’s involved.
The Rocky Hill Planning Board Engineer would be charged with ensuring that drainage for the new development would meet stormwater regulations and those plans would be kept on file.
Battaglia voted for the ordinance to be found “not inconsistent” with Rocky Hill’s Master Plan, as it is “substantially consistent” for a number of reasons. She said while there are three specific goals outlined in the 2019 Master Plan Reexamination Report that the ordinance under consideration is “clearly inconsistent with” there are another 20 goals that were not inconsistent between the zoning ordinance and the Master Plan.
“We have to take a look at the relative importance and the weight each of us put onto the areas of consistency and areas that are not inconsistent. From a high-level sense the Master Plan represents a broad, encompassing vision of Rocky Hill’s land use practices and the future vision of the Borough. In my mind the parts inconsistent here are not broad land use practices but are really very specific and targeted areas -- such as the Cottage Zoning housing. That is limited to this one parcel and there are parts that are consistent, including the mix of housing for varying income levels including the Affordable Housing component, as this would be higher than the 12 originally outlined in Cottage Zoning,” she noted.
Chris Newth of Princeton Avenue said with the ordinance still not approved the current phase is concept and design, meaning the schematic aspects are yet to be determined.
“There still is room for some changes from what we are seeing in proposed drawings. Is there a timeline if this ordinance is approved by the council on December 13?" he asked. Lee noted that there is no timeline stated for the project yet, but the ordinance does include specificity so the developer would need to design and construct the project in consistency with the ordinance.
“It’s not like the planning board can impose more than the restrictions in the ordinance,” she noted. Linda Goldman noted the other regulatory agency being the Delaware & Raritan Canal Commission, as a separate application by the owner or developer, and because of the wetlands at the site the New Jersey Department of Environmental Protection would have to be consulted, including on stormwater planning and the wetlands’ buffer.
“It’s not as if the borough ordinance (set for the public hearing next Monday) means the only levels of review would be municipal; there are the state agencies’ reviews involved for impacts and criteria that could impact the design,” Goldman said.
Planning Board Chair Michael Goldman noted that all regulatory agencies would have to provide approval upon reviews. “This represents a proposal and it would need to be submitted to the various regulatory agencies involved including our Planning Board -- we do not know yet what ultimately the plan is going to be, although it will be steady at the 78 maximum number of units and consistent with the concept plan, as referenced in the Borough ordinance up for public hearing,” he noted. Lee commented that to “make the engineering work” there would be grading and stormwater-related modifications that are not 100% outlined with the current concept plan.
Rocky Hill Fire Chief Todd Harris weighed in during public comments and said with the high-density housing proposed for the site, it’s important that he and Fire Official Erik Mickelson review the site plans once that stage is arrived at.
“As we move forward with the architectural look and change in the process, but with fire concerns of high-density housing there are concerns for hydrant locations, street access and elevation escape plus residential fire suppression systems that play into it. I want to make sure Erik and I are going to have that opportunity and voice when we get to that part of the process,” he said.
The planning board will have the future review of site plan design and application approval for future building at the Schafer tract, with a separate process than review of the ordinance for consistency with the Master Plan.
Lee will be retiring as planner at the end of this year, and she kept Rocky Hill Borough as a client as she wound down her consulting planning services throughout the last year. She is definitely not seeking reappointment to the consultant appointment of borough planner in 2022, as the role is appointed annually.
The planning board’s legal counsel from firm KMHM, Nakicha Joseph, noted that if Lee were to have conversations with one group of Rocky Hill residents, those conversations should allow the opportunity to any other members of the public to listen, provide input and ask questions in the same vein.
Mrs. Goldman also clarified the history of Schafer tract parcels and noted that Matiescu’s comment could be traced to the original “base” Master Plan from 2001, which was at the time of negotiations for Van Horne Park. “By 2004, in the amendment to the Land Use Plan, Van Horne Park happened and therefore the 34 housing units were included. Depending on which part of the Master Plan you are examining, some of that predates the settlement on the land following Green Acres’ funding and the County’s involvement to create Van Horne Park -- Mayor Uhrik is correct, at the time it was all a part of what was then referred to as the Schafer tract. The 15 acres were held back from the parcel, and the 2004 amendment was done after the settlement of the park,” she noted. Mayor Uhrik noted that the 15 acres was originally a part of the huge tract of ‘green belt’ over 100 acres.
Planning Board Vice Chair Nolan, a 36-year borough resident, summarized the original negotiations with Schafer started by former Mayor Whitlock and then continuing under his time as mayor.
“It would have been a devastating development for the community, which would have had impacts such as requiring paid services for police and fire, and much more," Nolan said. "There was a lot of negotiation that got us to the acquisition of the park using Green Acres’ funds but also with the negotiations with Montgomery Township — as everybody knows, right outside of the border down Princeton Avenue that is where the southern tier of [a] thousand townhomes were developed. They had virtually no green space or recreation for them and Montgomery awoke to the fact they would need to do so for those particular residents.
"The original Green Acres’ acquisition was 112 acres of which 105 is in Rocky Hill for Van Horne Park and seven acres of wetlands that are unusable/unbuildable, but in Montgomery. The retention of 10 acres was for Mr. Schafer’s former wife who still lives in the residence on Princeton Avenue — he wanted to shelter that family homestead with property. We have gone through a whole history of the 34 units for Princeton Avenue, which then led to a lawsuit by Rocky Hill residents and the case or settlement plan being dragged out over many years, then into the Cottage Zoning and ultimately the ordinance up for council’s consideration,” he said.
Nolan added that he personally supports the ordinance’s approval on December 13, as a resident and a taxpayer and for it “being the right thing negotiated by the borough council and legal staff.”
“The impact if we do not have this passed by the council will be much more devastating as basically the purchaser of the property (a developer Schafer has lined up) could instead be coming back to build multiple more townhomes and apartments with affordable housing,” Nolan explained.
As state law requires, all borough residents who live within 200 feet of the Schafer property were to receive notice of the December 13 public hearing, and according to Rocky Hill Deputy Clerk Christine Witt they were sent by certified mail on December 2, ahead of the planning board’s meeting.
Karen Mroz-Bremner of 17 Princeton Avenue noted the majority of residents do not get the mail delivered to their homes. She said residents will have to be told that they need to either check the mail or to get to the post office on Washington Street during its open (daytime) hours since the notice was arriving via certified mail.
Mroz-Bremner commented, “I am very disappointed in the transparency.” The property has a walkway and “things backing up to my property,” that she would like to have known about before she listened to the planning board’s discussion.
Mayor Uhrik commented, “Being everyone’s mayor, I have come to a realization by the residents who live by the Schafer tract and from their comments, maybe something else is needed — it sounds like there’s a void of communication or information. I wanted to let folks know I heard that, and I will talk with counsel and maybe there is something else — our residents are looking for opportunities to get some more information and find details."
"Public water and sewer service shall be provided by the developer through a public utility company. All utility structures within the property lines shall be owned by owners, the association or the utility companies."
The 16 affordable units would be deed restricted as affordable housing for a period of 30 years so that all the units therein would qualify for affordable housing credits towards Rocky Hill's affordable housing obligations, according to the settlement agreement.
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