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Land Preservation Strategies

There are two primary ways municipalities can preserve land in New Jersey ­ by using money from one of the state's land conservation programs or land conservancies, or by using the zoning and planning powers bestowed upon the municipality by the Municipal Land Use Law. Often, a combination of the two approaches works best.
State Land Conservation Programs
Local Land Conservation Tools

State Land Conservation Programs

Three statewide efforts account for the bulk of New Jersey's land conservation:
  1. The Green Acres Program, begun in 1961, managed by the State Department of Environmental Protection (NJDEP)
  2. The Farmland Preservation Program, managed by the State Agriculture Development Committee (SADC, in the State Department of Agriculture)
  3. Work of numerous independent (non-governmental) land conservancies throughout New Jersey.

The bulk of New Jersey's land conservation comes from the Green Acres program, and the SADC Farmland Preservation program. Both agencies acquire land (or development easements) directly. They also disburse grant funds to local governments and private conservancies.

The Green Acres Program
www.state.nj.us/dep/greenacres/
The Green Acres program was created in 1961 to preserve open space for recreation and environmental protection. It is managed in State Department of Environmental Protection (DEP). By statute, half of all Green Acres expenditures go to fund local projects where individual communities or nonprofit organizations make acquisition decisions. The GSPT Act apportions annual Green Acres funding between three project areas:
  • 50% for state (or "direct") projects, with 20% of that designated for "urban" counties.
  • 40% for local acquisition and development projects; and
  • 10% for nonprofit acquisition.

With funding decisions driven by localities, (and state control limited to a list of basic program requirements), the program has always enjoyed strong grass roots support. Eligible acquisition projects include:
  • Natural areas
  • Historic sites
  • Conservation areas
  • Water bodies
  • Recreation areas

Local governments are required to certify to a Recreation and Open Space Inventory by which the local government agrees to permanently hold, for recreation and conservation purposes, all other lands so held at the time of receipt of a Green Acres loan or grant.

Statewide demand for local open space preservation funds is tremendous. According to Green Acres staff, in FY 2001, requests totaled $300 million, compared to appropriations of $48 million. Green Acres addresses this disparity by weeding out the weakest applications ("Weak" applications include those that are incomplete, address recreational needs inadequately, or fail to demonstrate any natural resource or recreational value) and then applying funding caps (as required by regulations) to spread funds as widely as possible among the remaining applicants.

Local Governments and Nonprofit Funding
www.state.nj.us/dep/greenacres/trust.htm
The traditional "Standard Acquisition" Program offers counties and municipalities a grant of up to 25% and a low interest loan for some or all of the balance, depending on the availability of funds. All applications are ranked based on a list of criteria. According to program staff, applications that are complete and address recreational and/or natural resource goals are funded ­ subject to a project cap. Funding caps are determined annually, based on availability of funds. In 2001, the cap was $500,000 (25% grant, 50% loan.) In recent years, emphasis has been shifted to a Planning Incentive Program. Applications to the standard program have dwindled significantly.

Through its most generous program for local governments, the Planning Incentive Acquisition (PI) Program, Green Acres encourages municipalities and counties to plan strategically for open space preservation. A flexible, streamlined application process, matching grants of 50%, and higher project caps are made to localities with an approved Open Space and Recreation Plan (OSRP) and a dedicated local funding mechanism. Note that local OSRP plans are distinct from municipal master plans under the Municipal Land Use Law, and there is no requirement that they be consistent.

The PI program has become quite popular with local governments since its enactment in 1996; presently 15 counties and 94 municipalities participate and this number is expected to grow. In response to increased applications, funding caps for municipal projects dropped from $750,000 in 2001 to $400,000 in April 2002; county caps were cut in half from $1.5million to $750,000. To complete expensive acquisitions, local governments may use Green Acres funds obtained over a period of years, obtain funding through local bonding, partner with nonprofit groups and/or borrow funds from the New Jersey Environmental Infrastructure Trust (NJ EIT -- the NJ EIT works in partnership with the NJ Department of Environmental Protection to make reduced rate loans to local governments for gray and green infrastructure projects to improve water quality).

In place since 1989, the Nonprofit Acquisition & Development Program offers 50% matching funds for qualifying nonprofit organizations to acquire and develop land for recreation and conservation funds. Due to the competition for acquisition funds, development projects are typically limited to urban aid municipalities. Applications for projects not included in an approved Open Space and Recreation Plan are ranked. As with the local programs, the keen competition for funds has led to funding caps of $500,000 for local/regional grants and $1.4 million for larger regional/statewide projects, although exceptions are made for projects of special concern and extraordinary resource value.

State Park & Open Space Acquisition
www.state.nj.us/dep/greenacres/state.htm
Through the half of its budget reserved for direct "state" acquisitions, the Green Acres program serves as the "real estate agent" for the Department of Environmental Protection (DEP). Land is acquired for state parks, forests, watershed protection, natural areas and wildlife management areas. Such lands are transferred to the DEP Divisions of Parks and Forestry and Fish and Wildlife and the New Jersey Natural Lands Trust, or to local governments or nonprofit organizations.

During the Whitman administration, program goals emphasized achievement of the million-acre goal identified in the GSPT Act through acquisition of a "system of interconnected open spaces." Governor James McGreevey's administration, in office since 2001, plans to shift program emphasis to urban and suburban parks, to protecting water resources and to buying ecologically significant lands under imminent threat of development. In September 2002, the GSPT adopted this policy. The Trust advocated tripling dollars for local recreational development. It also recommended directing the portion of state funding dedicated to "densely populated counties" to the State Plan's "Planning Area 1 and planning areas immediately adjacent thereto", and raising the match in local grants to urban areas from 50% to 75%.

The Farmland Preservation Program
www.state.nj.us/agriculture/sadc/overview.htm
The New Jersey Agriculture Retention and Development Act (Ch.32, PL 1983) and The Right to Farm Act (Ch 31, PL 1983) established a multi-faceted farmland preservation strategy. Its centerpiece is a state fund for the purchase of development rights (PDR) on farmland, administered by the State Agriculture Development Committee (SADC), in but not of the Department of Agriculture. Other features include: (1) an incentive program for property owners to restrict their property for eight years in return for certain benefits; (2) strictures on the use of condemnation within certain areas; and (3) right to farm provisions.

Purchase of Development Rights Programs
New Jersey's primary farmland preservation strategy has been the purchase of development rights program, administered by the State Agriculture Development Committee (SADC) within the Department of Agriculture. This technique allows the farmer to maintain ownership of the land, but permanently restricts its use to agriculture. Land ownership is traditionally associated with a "bundle of rights" -- namely, rights to possess, use, modify, develop, lease, or sell the land. To utilize PDR, the right to develop the land for residential, commercial, or industrial purposes is separated from the bundle while leaving the rest intact. It is important to note that easement purchase is voluntary, but once the deed restriction is instituted the land remains protected permanently.

The SADC's purchase of development rights programs rely primarily on County Agricultural Development Boards (CADBs, www.state.nj.us/agriculture/sadc/countyboards.htm) for project development and management. This county-level entity serves as a gateway and a valuable resource for municipalities and farmers interested in easement purchase. On average the SADC funds 67 percent of the cost of the easements, with the remainder coming from combinations of county, municipal, and landowner sources.

Contact the SADC for more information on the State PDR program, 609.984.2504.

For more information on PDRs in general, check out The Ohio State University's Fact Sheet at www.ag.ohio-state.edu/~ohioline/cd-fact/1263.html.

There are, at present, four primary PDR programs administered by the SADC:
  1. The "traditional" program, legislated in 1982, relies heavily for project management on County Agriculture Development Boards (http://www.state.nj.us/agriculture/sadc/countyboards.htm). Their responsibilities include farmland preservation planning, marketing, landowner contact and support, scoring of applications and the monitoring of restricted property. Farmers have depended on county-level contacts for interpretation of SADC regulations, program details and assistance through the labyrinth of dual approvals by the CADBs and the SADC. The SADC has funded an historical average of 67 percent of the cost of the easements, with the remainder coming from county and municipal funds and landowner bid-down discounts. Despite its complex, obstacle-filled, two-year administrative process, the traditional program has been in operation long enough to be understood and accepted by many members of the agricultural community. The program enjoys support among county and local officials - both elected and administrative -- that worked hard over many years to establish the program.
  2. The Direct State Acquisition program authorizes the SADC to directly acquire either fee-simple title or farm easements. SADC staff process applications and appraisals with no CADB involvement. The SADC may acquire the full fee title to a given farm that is then made subject to a restrictive farmland easement and resold a public auction. Or it may acquire the easement in the first instance. The SADC negotiates a purchase price directly with the landowner, subject to an appraisal process. Typically, direct acquisitions take 9 months to complete once negotiations are finalized. The SADC then pays the full cost of these acquisitions. Relatively fast and flexible, the Direct State Acquisition Purchase Program is expected to handle a growing share of projects. In FY 2002, these programs accounted for one-fifth of all acres preserved. For more information, contact the SADC at 609.984.2504.
  3. The Planning Incentive Grant (PIG) program (www.state.nj.us/agriculture/sadc/planningincentivegrants.pdf), launched in 1998, is intended to support municipalities and counties seeking to preserve contiguous blocks of farmland. If local governments meet certain planning and other criteria, they may qualify for a block grant of up to $1.5 million in acquisition dollars per year in state matching funds. Once approved as a group, single projects automatically qualify for matching funds, eliminating the need for the SADC to individually rank and approve applications as required by the traditional program. Significantly, the PIG program requires municipalities to adopt a farmland preservation element of their municipal master plan, establish a local farmland preservation committee, enact a local open-space preservation tax and enact a right-to-farm ordinance. Three farms have been purchased, with some 52 more "in the pipeline" with approved SADC funding. For more information, contact the SADC at 609.984.2504.
  4. Newly established in 1999 pursuant to the Garden State Preservation Trust Act, the Nonprofit Acquisition Program (www.state.nj.us/agriculture/sadc/grantstononprofits.pdf) allows the SADC to award 50-percent matching grants (up to $500,000 per project) to nonprofit land conservancies active in farmland preservation. The balance of funds for the project must come from the nonprofit's local fundraising or through a discounted sale by the farmer-landowner. To date, two farms have been preserved under the program, with another 11 pending. For more information, contact the SADC at 609.984.2504. Or try contacting conservancies operating in New Jersey: New Jersey Conservation Foundation (www.njconservation.org/), The Trust for Public Land (www.tpl.org/), and The Nature Conservancy (www.tnc.org/).

Fee Simple Acquisition Program
The SADC's fee simple acquisition program is structured similarly to that of the PDR program, except that the state purchases the land at fair market value instead of the development rights to the land. The SADC then auctions the farm ­ with deed restrictions prohibiting development - to a private owner. Fee simple purchase is particularly attractive to land owners, and if pursued using the Direct State Acquisition Program can be a useful method of farmland preservation in relatively short time periods. For more information, contact the SADC (www.state.nj.us/agriculture/sadc/sadc.htm) at 609.984.2504 or a local CADB (www.state.nj.us/agriculture/sadc/countyboards.htm)

Right to Farm
The intermingling of farms and suburban growth often leads to conflicts between farmers and non-farm neighbors. Such disputes may involve trespass, vandalism, dust from crop cultivation, machinery noise, construction and operation of farm stands, animal smells, and the like. The state legislature, with the purpose of addressing issues of compatibility between suburban development patterns and agriculture, passed the Right to Farm Act in 1983. Right to Farm laws are intended to validate generally accepted agricultural practices by providing an irrefutable presumption that they shall not constitute a public or private nuisance, unless there is a threat to the public health or safety.

New Jersey's Right to Farm Act provides farmers with relief from local ordinances that interfere with on-site production, processing, and packaging of agricultural products. There are dispute resolution procedures that involve the County Agriculture Development Boards and appeals to the State Agriculture Development Committee. The Act was strengthened in 1998 to include among other items a more specific definition of commercial farm and farm markets.

In order to receive these right to farm protections, commercial farms:
  • must be operated in conformance with federal and state laws, agricultural management practices recommended by the SADC or site specific agricultural management practices;
  • must not be a direct threat to public health and safety; and
  • must be located in an area where agriculture was a permitted use under municipal zoning ordinances; or
  • must have been operating as of December 31, 1997.

For more on Right to Farm in general, check out the American Farmland Trust's Fact Sheet at farmlandinfo.org/fic/tas/tafs-rtfl.html.

Land Acquisition by Private Conservancies
Independent (non-governmental) land conservancies make a critical contribution to land preservation, attracting resources from individual donors, foundations, and national sources. By acting quickly and assuming a neutral role in heated negotiations between local governments and landowners, they play a critical role in large, complex transactions. And, their technical expertise in resource conservation helps guide state and local acquisitions.

Because many private conservancies receive funding from the Green Acres and Farmland Preservation program, it is difficult to separate their contribution to the acreage totals shown here. However, a census of land conservation conducted by the national Land Trust Alliance (www.lta.org/aboutlt/census.shtml) found that by the end of 2000, 29 local, regional or statewide land trusts had protected 138,249 acres of land in New Jersey. Of these, the work of three statewide land trusts is at a scale that merits listing individually.

Statewide Land Trust Acres Preserved in NJ, Spring '02*
New Jersey Conservation Foundation Over 100,000 acres
Trust for Public Land/NJ Chapter 17,000 acres
The Nature Conservancy/NJ Chapter 47,663 acres

* figures include partnerships with other organizations, including Green Acres.

Each conservancy operates under a different set of goals. The New Jersey Conservation Foundation (NJCF, www.njconservation.org/) has a broad mission, "to preserve New Jersey's land and natural resources for the benefit of all." Acquisitions occur in several geographic focus areas, including the Highlands Ridge and Valley area, the Western Piedmont, urban communities, the Pine Barrens and the Delaware Bay, as well as smaller project areas. NJCF works in partnership with local governments and conservancies and the location of its projects is affected by requests for assistance.

The Trust for Public Land/New Jersey Chapter (TPL, www.tpl.org) bases its acquisition strategy on "conserving land for people," focusing on projects that address both urban recreational and environmental objectives. TPL/NJ's biggest project areas include the Newark Playground Program, the Barnegat Bay Initiative, the "River to Bay" Greenway (linking the Delaware River to the Barnegat Bay), and work in the Highlands region. In addition TPL assists communities on compelling conservation projects around the state.

The Nature Conservancy/New Jersey Chapter (TNC, nature.org/wherewework/northamerica/states/newjersey/) focuses on preserving critical habitat for globally rare species. Acquisitions are based on a detailed scientific analysis of a species needs and site specific protection strategies. As such, TNC's project areas are in the state's most rural regions. Last spring, TNC announced a campaign to save the state's Last Great Places, an initiative to secure $60 million to protect disappearing natural lands in the Skylands, Pine Barrens and Delaware Bay Shore.

Other Land Conservation Activity
Land conservation activities that occur independent of GSPT or other state funding are estimated to preserve an average of at least 13,500 acres per year, roughly one-fifth of all preservation. (Data sources vary in reliability and detail.) They are listed below:
  • Independent local government acquisitions. In 2001, local governments raised $134 million in dedicated open space tax revenues. This number is expected to grow in 2002 as more municipalities and counties adopt such measures. Although most of these revenues are used as matching funds for state grants and loans, a Green Acres survey in 2000 found that localities had preserved 19,046 acres on their own through purchases with these funds since May 1997.
  • Exactions by municipalities during development review. Land acquired or otherwise set aside by municipal planning boards as they approve applications for cluster or planned development, Though significant, this amount is unknown.
  • The sale of "Pinelands Development Credits". PDC sales have preserved a total of 36,750 acres, including 20,962 acres from January 1998 through November 2002. This program allows property owners in the Pinelands to sell development rights on the private market.
  • Private Donations. Private donations (of land or development rights) to the state totaled 7,685 acres between May 1997 and June 2002.
  • Federal purchases. The federal government purchases land independently in New Jersey, primarily through the U.S. Fish and Wildlife Service (FWS). The FWS owns some 69,800 acres in New Jersey, and acquired 6,560 acres between May 1997 and June 2002.
  • Land dedicated through state regulatory programs. Between May 1997 and mid-2002, 14,586 acres were preserved through negotiations involving state regulations. This figure includes 10,000 acres set aside as a result of mitigation involving a PSE&G plant; other dedications of this scale are not anticipated.
  • Independent acquisitions by private conservancies. A 2000 Green Acres survey found that nonprofit organizations preserved 1,167 acres since May 1997 without state funds.



Local Land Conservation Tools

The Municipal Land Use Law (MLUL, www.nj.gov/dca/osg/resources/regulations.html) empowers towns to plan (NJSA 40:55D-28) and zone (NJSA 40:55D-62) for their future. Municipalities have the option of creating a farmland preservation element to their Master Plan and have regulatory tools such as downzoning, clustering, transfer of development rights (Burlington County and Pinelands region only), and right to farm ordinances. The land use decisions made by local governing bodies is the primary determinant for how New Jersey will grow. It is important to look at the tools available to each municipality to find alternative ways to conserve farmland.

Planning for Farmland Preservation
The development of a municipal Master Plan (comprehensive plan) is essential to an effective local farmland preservation initiative. The purpose of the Master Plan is to focus a community's vision for its future physical development and to establish guidelines in order to achieve that vision. Sound data and community input/participation form the justification and backbone for the finished document.

Just as the Master Plan establishes the vision for the community's future growth, a farmland preservation element lays out a set of preservation goals and objectives. Data is collected concerning existing conditions including an inventory of existing agriculture and soil types, and a statement of regulatory climate. Once this information is gathered and analyzed, the municipality can then set priorities for acquisition. Plumsted Township in Ocean County (see details in the Farmland Preservation Case Studies section) has developed a detailed farmland and open space plan that targets important parcels for preservation.
MLUL Requirements for Farmland Preservation Element:
A farmland preservation plan element shall include:
  • An inventory of farm properties and a map illustrating significant areas of agricultural land;
  • A statement showing that municipal ordinances support and promote agriculture as a business
  • A plan for preserving as much farmland as possible in the short term by leveraging monies...through a variety of mechanisms including, but not limited to, utilizing option agreements, installment purchases, and encouraging donations of permanent development easements
Source: NJSA 40:55D-28b(13)

The farmland protection element should fit within the larger context of the Master Plan for the community. If large areas are to be planned for as permanent agriculture, then it is important that the municipality address the development and infrastructure needs of the areas that will grow. The township therefore must not only plan where to save land, but where and how to accommodate growth and infrastructure.

The Municipal Land Use Law explicitly permits the creation of a farmland preservation element. This element is prerequisite for participation in the SADC's Planning Incentive Grants (PIG) Program (mentioned above). It is important to emphasize that plans alone do not protect farmland. Successful implementation requires municipal regulations that reinforce the goals of the plan. See regulatory tools below: agricultural protection zoning, clustering, and transfer of development rights.

Outline for a Farmland Preservation Element
  1. Agriculture in Municipality/County.
  2. Overview of land in farm use, soil quality, number of farms, value of farm production, and type of crops and livestock.
  3. Data sources: Natural Resources Conservation Service soil maps, US Census of Agriculture, state Department of Agriculture.
  4. Contribution of agriculture to the local economy: jobs, value and type of products produced, manufacture of food and fiber products, farm support businesses, tourism.
  5. Threats to and opportunities for agriculture.
  6. Useful information: loss of farmland, population growth, location of farming areas and growth areas, problems of incompatible nonfarm land uses in farming areas.
  7. Goals and objectives for farmland preservation..
  8. Goal 1: To encourage farming as an important part of the local economy.
  9. Objective 1: fund the creation of farmers' markets.
  10. Objective 2: review local zoning ordinances to ensure that they do not discourage normal farming practices and do allow for some farm-based businesses.
  11. Goal 2: To protect farmland from conflicting nonfarm development by keeping large-scale residential subdivisions and commercial devleopments out of the countryside.
  12. Objective 1: restrict, to the extent possible, the extension of public sewer and water lines in the main farming areas.
  13. Objective 2: permit some low-density rural residential zoning to accommodate the growth of the rural population.
  14. Objective 3: form growth boundaries around existing villages so that most of the projected population growth and mixed-use development can be accommodated in and next to built up places.
  15. Objective 4: work with farm groups, individual farmers, and nonfarmers to review or adopt agricultural zones.
  16. Objective 5: support financial incentives, such as purchase of development rights, and the donation of conservation easements, to protect farmland.

Excerpted from Daniels/Bowers, Holding Our Ground, pages 37-38

Agricultural Protection Zoning
Zoning is a municipality's primary tool for land use control. It regulates all aspects of land development including density and design. Zoning is one of several legal tools that can be used to implement the proposals and objectives for land development as described in the Master Plan. Agricultural protection zoning in the eastern United States typically prescribes large lot sizes, between 20 to 40 acres of land per non-farm dwelling. Agricultural Protection Zoning designates areas where farming is the desired land use and discourages other uses on these lands.

In New Jersey, the Municipal Land Use Law clearly authorizes planning for (NJSA 40:55D-28b(13) and regulation (40:55D-62) to effect the preservation of farmland. The authority of government to regulate land for agricultural use was forcefully upheld against an owner of farm property in the New Jersey Supreme Court's landmark property rights case, Gardiner v. New Jersey Pinelands Commission (125 NJ 193, 1983). The court stated that "diminution of land value itself does not constitute a taking" as well as "there exists no constitutional right to the most profitable use of property." Despite the legal foundation for agricultural protection zoning in New Jersey, the most progressive towns - outside of the Pinelands - at best have lots of five, six and in some rare cases 10 acres.

A limitation of using zoning to conserve farmland is its lack of permanence. A change in the municipal ordinance can be enacted rather quickly without any agricultural land having been permanently preserved.

Agricultural Zoning is legally defensible IF:
  1. The land constitutes a valuable natural resource, the preservation of which is in the public interest.
  2. It is based on a comprehensive plan for the community.
  3. It does not remove all economic use of the property (farmland is a viable use).
  4. It does not result in the exclusion of certain people (affordable housing) from the community.
  5. It is applied fairly and consistently among all landowners in the agricultural zone.

Based on Daniels/Bowers, 6 Tests, page 108-9.

For more information on Agricultural Protection Zoning check out the American Farmland Trust's Fact Sheet at farmlandinfo.org/fic/tas/tafs-apz.html or The Ohio State University's FactSheet at www.ag.ohio-state.edu/~ohioline/cd-fact/0303.html.

Large Lot Zoning
Large lot zoning (large minimum lot size) is similar to Agricultural Protection Zoning with the exception that it is "non-exclusive," meaning it allows for a limited amount of non-farm development within the zone. At issue with the allowance of non-farm uses within agricultural zones is the potential for conflicts between the different uses. At its most effective, large lot zoning is accompanied by regulations that limit the buildable area for non-farm dwellings, and direct that development from the most productive soils. There are other flexibility provisions that can be adopted by ordinance to allow for increased sensitivity to parcels with different natural characteristics.

This map (www.dvrpc.org/planning/Protection%20Tools/MAPS/agric.jpg), by the Delaware Valley Regional Planning Commission, shows municipalities that have agricultural zoning districts with 10-20 acre minimum lot sizes and municipalities that have districts with 20 acre or larger minimum lot sizes. It also shows those municipalities in New Jersey where Pinelands large lot zoning is applied.

Downzoning
The process by which a municipality increases the minimum lot size (and thereby decreases allowable density) is called "downzoning." This change is often politically contentious because it limits development and may result in a decrease in the market value of the land. Legal challenges by property owners are a legitimate fear of municipal governing bodies; such entanglements are costly, even if the municipality wins in court. Downzoning efforts that are embedded in a larger plan for farmland preservation stand a better chance of surviving a legal challenge.

In New Jersey, the recent the Mount Olive decision was an important step in the legal defense of downzoning. In this case, the Township relied heavily on the State Development and Redevelopment Plan (SDRP) to justify the rezoning; the governing body decided downzone to 5 acre lots because the land fell within PA5, the SDRP's environmentally sensitive planning area. This case marks the evolution of the court's thinking about the SDRP. In previous cases, courts have upheld municipal zoning decisions that were, in part, based on the Plan. In Mount Olive, the court takes the next step and, in essence, allows the State Plan to be the justification for downzoning.

Also note the East Amwell downzoning case study in the case studies section.

Cluster Development
Traditional zoning provides standards for development including uniform road frontage, street standards, and minimum setbacks. Often referred to as "cookie-cutter", this pattern of development does not take into consideration the unique characteristics of a particular lot. Cluster development is a regulatory technique that can be used to protect farmland. Clustering allows the same number of dwellings as traditional zoning, but reduces the lot sizes, setbacks, yards and other dimensional requirements. The undeveloped portion of the tract can remain as farmland or open space. This method allows buildings to be sited on the most suitable lands (in this case the least exceptional farmland). This method also reduces the conflicts between farm and non-farm uses by keeping the houses out of the farmland.

At issue with cluster development is the density allowed on the developable portions of the tract. By allowing for the same number of units as traditional zoning, the resulting development can still conflict with agricultural goals. This method is also criticized as being "clustered sprawl" that fragments farmland and negatively impacts the viability of agriculture as an industry. In general, this tool is thought to preserve open space, but does not necessarily create an environment for sustained agriculture.

From the Regional Planning Partnership's (Formerly MSM) Growth Management Handbook:

For more information on clustering, take a look at The Ohio State University's FactSheet on Cluster Development: www.ag.ohio-state.edu/~ohioline/cd-fact/1270.html

Noncontiguous Parcel Clustering

An amendment was made to the MLUL in 1996 that permits any municipality to cluster development using noncontiguous sites. Essentially, this technique allows "noncontiguous" areas to be included in a planned development application. A "sending area" parcel is identified for preservation and a "receiving area" is identified for increased density. The development rights from the "sending area" are transferred to the "receiving area."

Implementing A Density Transfer By Noncontiguous Parcel Clustering:
  1. Identify the parcel to be preserved ("sending area").
  2. Identify the "receiving area" parcel to be developed, i.e., where the density of the "sending area" parcel is to be transferred.
  3. Establish the transferable density or development rights of the "sending area" parcel, i.e., the allowable density that may be transferred to the "receiving area" parcel.
  4. Reach purchase agreements among the landowners of the "sending area" parcel, the "receiving area" parcel, and the developer of the "receiving area" parcel.
  5. Prepare and review a concept plan for development of the "receiving area" parcel.
  6. Establish the preserved use of the "sending area" parcel once its development rights are transferred.
  7. Provide sufficient infrastructure (water, sewer, roads, etc.) for the "receiving area" parcel to be developed at the higher density that includes the transferred developed rights.
  8. Propose and adopt a municipal planned development ordinance that allows density transfers between the identified "sending area" parcel and the identified "receiving area" parcel.
  9. Review and approve a single development application for the "sending area" parcel and the "receiving area" parcels.
  10. Deed restrict the "sending area" parcel to its preserved use.

Taken from: Kinsey & Hand, "Noncontiguous Parcel Clustering: A New Technique for Planned Density Transfer," Technical Reference Doc #128, Office of State Planning, December 1997. www.state.nj.us/dca/osg/docs/parcelclustering120197.pdf

For more information:
Lot Size Averaging
Lot size averaging is a flexibility provision that allows an average lot size to be maintained on a tract, while the individual lots vary in size. This technique allows consideration for natural features on the tract, provide access to public facilities and scenic vistas, and help concentrate a majority of homes while leaving some larger tracts for individual landowners.

Transfer of Development Rights
Transfer of development rights (TDR) is a land preservation tool based on the principle that the right to develop land can be severed (as in an easement) from ownership of the land itself, and transferred to another property. Development is shifted from one area within a community to another that is deemed more suitable for development. TDR takes the clustering concept to a larger scale.

A TDR program must establish a sending area, a land resource that is to be protected from development, and a receiving area, a growth area to which the development is transferred. Using a formula that considers the existing zoning and environmental constraints present, the development potential of the land in the sending area is calculated. This potential can be marketed and sold to developers as credits for increased density in the determined receiving area.

TDR programs can be mandatory or voluntary. If mandatory, the sending area is significantly downzoned to reflect the environmental sensitivity of the land in question. Voluntary TDR maintains the existing zoning in the sending area, but allows the transfer of development potential to the receiving area as an option.

New Jersey has examples of both voluntary and mandatory TDR programs. Chesterfield Township, Burlington County has an optional program that provides for credits in the sending area to be transferred into a mixed-use village/receiving area. On the other hand, the mandatory Pinelands Protection Plan has 66,000 acres in Agricultural Protection. Development on this land is restricted to one dwelling per 40 acres, with the condition that the homes are clustered on one-acre lots and the remaining 39 acres permanently dedicated to agricultural use.

At present, municipalities outside of Burlington County and the Pinelands are not authorized to pursue TDR programs; however, in March 2003, Governor McGreevey asked the Legislature to approve an amendment to the MLUL that would allow any municipality to use TDR. One of the advantages of such a program is that private, rather than public, funds are used to permanently preserve land. TDR is a very technical tool that requires a considerable amount of comprehensive planning and time in order to implement.

For more information: