In this first example, we look at how the noncontiguous cluster could work in a hypothetical rural environment,where development is limited to on-site septic systems, and where the municipality has expressed the desire to preserve farmland.
Because the subject area is located outside of a sewer service area larger lots are needed for on-site septic systems. Municipal zoning is split between 3-Acre Residential Zoning (R-3) in areas with access to public water, and the more restrictive 6-Acre Agricultural Zone (AR) where public water is unavailable. In order to preserve the local farming industry, the Township decides to implement a noncontiguous cluster ordinance, and identifies the R-3 zone as an area appropriate for development and the AR zone as appropriate for protection.
Looking at a specific example--the highlighted R-3 parcel is 96 acres. This R-3 lot is less desirable for agricultural production due to predominance of adjacent residential development, with the potential for right-to-farm conflicts. Under a conventional development, the site has a gross build out of 32 single family homes, given the three acre zoning. After environmental constraints, open space, and infrastructure needs are included, the net potential for the site is 24 single family homes under 3 acre zoning.
The three highlighted AR parcels are 154 acres, 156 acres & 83 acres, for a total of 393 acres. These three lots are desirable for continued agricultural production due to proximity to other farm operations,which increases operations flexibility and limits potential conflicts with neighbors. If these sites were subdivided for residential development under the 6 Acre AR Zoning, they would yield a gross build out of 65 units, with a net build out of 50 units given environment constraints, open space and infrastructure needs.
Because the Town adopted a noncontiguous cluster ordinance that designates the R3 Zone as an area appropriate for development, and the AR Zone appropriate for preservation, these landowners have additional options at their disposal. A developer coordinates with each of these landowners to create a single development proposal between the four parcels under the Township’s non-contiguous cluster provision.
Through implementation of the non-contiguous cluster option, the developer purchases conservation easements on properties in the AR zone in exchange for the right to develop additional units on the R-3 zone parcel. With its access to public water the R-3 parcel can accommodate its 24 units, plus the 50 units from the AR Zone, for a total of 74 units at a gross density of one unit per 1.29 acres, while preserving 393 acres of farmland. REFERENCE: Conventional Zoning Outcome:R3 Zone: 24 single family homes on 96-acre site (3-acre lots)AR Zone: 50 single family homes on 393-acre site (6-acre lots) Noncontiguous Cluster Outcome:R3 Zone: 74 single family homes on 96-acre site (approximately 1-acre lots)Ag Zone: 393 acres permanently preserved
Not all areas in NJ are constrained by on site septic systems. In this next example, we look at how the noncontiguous cluster could work in another hypothetical rural environment that includes an existing sewered hamlet area, and also contains several large tracts of undisturbed forests, which the municipality has expressed the desire to preserve.
In this rural, largely forested municipality, the zoning is split between a restrictive Forest Protection Zone (5-Acre Lots) and a Hamlet Development Zone (3 Dwelling Unit/Acre Lots). Due to its access to sewer service & proximity to existing development, the town designates the Hamlet Development Zone for development in hopes to a create a compact, mixed-use center at the crossroads of two major county roads and the Forest Protection zone as appropriate for permanent preservation under a non-contiguous cluster ordinance.
The highlighted Hamlet Development Parcel is 66 acres. Under the present zoning of 3 dwelling units per acre, the total gross build out on the site would be 220 lots. After factoring in environmental considerations and infrastructure needs, the total potential for the site is 158 single family homes.
Meanwhile, the Forest Protection Zone lots include large contiguous areas of forest and agriculture and are in proximity to similar environmentally sensitive parcels. The Town has zoned these areas for 5-Acre lots. The highlighted 8 parcels comprise 635 acres; if developed under conventional zoning, the total yield after infrastructure and environmental considerations would result in the development of 106 single family homes.
In the event of a noncontiguous cluster, the municipality allows up to 5 dwelling units per acre in the Hamlet Development Zone. At 5du/acre zoning, the potential net build out is 264 units. As a result, the owner of the highlighted parcels within the Hamlet Development Zone and the owners of the 8 lots within the Forest Protection Zone decide to utilize the Township’s noncontiguous cluster provision.
Through implementation of the non-contiguous cluster option, conservation easements are purchased for the properties in the Forest Protection zone in exchange for the right to develop at a higher density in the Hamlet Development Zone. At an increased density of up to 5 du/acre (.2 acre lots), development of the 66 acre Hamlet Development Zone parcel can accommodate its 158 by-right units and the additional 106 Forest Protection Zone units for a total of 264 residential units, while preserving 635 acres of forest.REFERENCE INFORMATION: Conventional Zoning Outcome:Hamlet Development Zone: 158 single family homes on 66-acre site (.3-acre lots)Forest Protection Zone: 106 single family homes on 635-acre site (5-acre lots) Noncontiguous Cluster Outcome:Hamlet Development Zone: 264 single family homes on 66-acre site (approximately .2-acre lots)Forest Protection Zone: 635 acres permanently preserved
Noncontiguous cluster is not limited to greenfield development in rural areas. In this example, we demonstrate how the noncontiguous cluster can also be used as a way to revitalize an existing developed area.
In this hypothetical suburban municipality, the Township has identified an abandoned single-story strip mall at the intersection of two state highways with access to sewer service as part of a Highway Commercial Redevelopment Area that is appropriate for more intense development under a noncontiguous cluster ordinance.
In another part of town, the confluence of two rivers has caused flooding issues. As a result, the town has highlighted these areas for preservation.Along these rivers, privately owned riparian lands include developable upland and wetlands which serve flood hazard protection purposes. One parcel is a private recreation facility containing ball fields. The Township would like ownership of this parcel to provide additional public recreation opportunities, as well as to create a canoe launch and increase public access to the river. The Township would like to own the wetlands for flood control.
The highway commercial parcel is 14 acres (609,840 square feet). Existing Highway Commercial zoning permits a maximum Floor Area Ratio of .3. With 182,952 square feet (4.2 acres) of single story big box commercial space, the site is currently built to its zoned capacity. (The accompanying parking lot covers most of the 14 acre site.)
The identified riparian parcels total 68 acres. After calculating the environmental constraints, open space and infrastructure needs, the estimated net build out is 45 single family homes. The redeveloper of the Highway Commercial Area coordinates with owners of the 4 riparian parcels to create a single development proposal under the Township’s non-contiguous cluster provision.
Through implementation of the non-contiguous cluster option, the developer purchases the riparian properties in exchange for the right to develop at a higher density in the Highway Commercial area. The township allows 4,356 square feet of additional commercial development for each riparian area housing unit. At 45 riparian units, this translates to an additional 196,020 square feet. Through the use of non-contiguous clustering the maximum permitted floor area ratio in the Highway Commercial Redevelopment Area more than doubles to .62, permitting the additional 196,020 square feet, for a total of 378,972 square feet. The riparian areas are then donated to the town under a permanent easement for recreation and flood control.Now that you have an idea of how this tool works, I would like to turn over the discussion back to my colleague, Chris Sturm, who will discuss the benefits of using noncontiguous clusterConventional Zoning Outcome:Highway Commercial Redevelopment Area: FAR: 182,952 square feet (4.2 acres)Recreation and Riparian Areas: 45 single family homes on 68-acre site (slightly over 1 acre lots) Noncontiguous Cluster Outcome:Highway Commercial Redevelopment Area: FAR: 378,972 square feetRecreation and Riparian Areas: 68 acres permanently preserved
NJ Future Noncontiguous Cluster Webinar II Caton and Hartling
Implementation of the Cluster
to the Municipal Land Use Law
Philip B. Caton, PP, FAICP
Foundation of Zoning Ordinance
Riggs v. Township of Long Beach,
109 N.J. at 611, 538A.2D 808
… a land use ordinance or amendment thereto
must advance one of the fifteen [now sixteen]
general purposes of the MLUL as specified in
N.J.S.A. 40: 55D-2.
MLUL Purpose of the act
(N.J.S.A. 40:55 D-2)
40:55D-2. It is the intent and purpose of this act:
p. To enable municipalities the flexibility to offer
alternatives to traditional development, through the
use of equitable and effective planning tools
including clustering, transferring development
rights, and lot-size averaging in order to concentrate
development in areas where growth can best be
accommodated and maximized while preserving
agricultural lands, open space and historic sites.
MLUL Power to Zone
40:55D-62. Power to zone. a. The governing body may
adopt or amend a zoning ordinance relating to the nature
and extent of the uses of land and of buildings and
structures thereon. Such ordinance shall be adopted
after the planning board has adopted the land use plan
element of a master plan, and all of the provisions of
such zoning ordinance or any amendment or revision
thereto shall either be substantially consistent with the
land use plan element and the housing plan element of
the master plan or designed to effectuate such plan
MLUL Master Plan Contents
(N.J.S.A. 40:55 D – 28)
40:55D – 28b. The master plan shall generally comprise….
(2) A land use plan element (b) showing the existing
and proposed location, extent and intensity of
development of land to be used in the future for
varying types of residential, commercial, industrial,
agricultural, recreational, open space, educational and
other public and private purposes including any
provisions for cluster development; and stating the
relationship thereof to the existing and any proposed
zone plan and zoning ordinance;
What Must a Municipality Do to Utilize this
1. Review Master Plan for opportunities to utilize noncontiguous cluster;
2. If applicable, consult stakeholders and prepare a
preliminary approach considering
infrastructure, environmental features and (generally)
3. Fine tune and present to the public at a Master Plan
hearing to amend (at a minimum) the Goals &
Objectives and the Land Use Plan Element;
4. Amend zoning ordinance to implement Master Plan:
development economics are key here – density
bonuses may be required.
Alternative Approaches to Noncontiguous
• Allow noncontiguous clustering as a permitted
use throughout a certain zoning district(s);
• Allow noncontiguous clustering as a permitted
use only on parcels which meet specified
characteristics for growth or preservation; or
• Allow noncontiguous clustering as a permitted
use only on parcels which are specifically
identified (prioritized?) in the Master Plan for
growth or preservation.
James E. Hartling
Two key economic issues:
Based on growth forecasts, is there sufficient demand to
justify the proposed cluster development?
Will the noncontiguous cluster option be more or less
profitable than conventional development?
What is the relative value of land under base development
(conventional zoning) versus relative value of land under the
non-contiguous cluster development?
Do the preserved properties offer any value to the developer
(such as privately owned preserved farmland)?
Adequacy of demand:
How many new housing units are supportable given
growth forecasts and recent development trends??
Does the proposed growth area development make
sense given these forecasts?
Example: Woodland Township, Burlington County:
DVRPC Growth Forecast 2010-2040: 18 people
• Is there market demand for the type of
Relative value of land component of development:
Is a proposed growth area lot comparable in value to
a preservation area lot?
If not, what level of bonus or additional development
is necessary to encourage cluster development?
What additional development is excessive?
Example: Land value of 2 acre SFH lot is usually equal
to land for 2.7 to 3.3 townhomes
Residual preservation area land value:
Preserved farmland is usually more valuable than
preserved open space
Example: Assume 6 acre zoning in Preservation Area;
residual farming value might be $5,000 per acre or
$30,000 per lot.
Summary of economic questions:
Assuming there is market demand for the
noncontiguous cluster development, is the:
value of land for cluster development
+ value of preserved land
equal to or greater than
value of land for conventional development?
Development on Septic
Economic Issues: Rural Setting
• Compare value of :
– 24 3-acre lots and 50 6-acre lots vs.
– 74 1+acre lots
• Note: Value of a 1 acre lot is somewhat less than a 3 acre or 6 acre
lot, so a 10% to 20% bonus may be necessary in such a case
• How long to absorb 74 units? Can the developer afford to buy
conservation easement well in advance of use?
• Conversely, if easement is purchased parallel to use, how long
will preservation area owners wait?
Rural Setting #2:
Clarke Caton Hintz Photo
Hamlet Development (With Sewers)
Economic Issues: Rural Setting #2
• Compare value of :
– 106 5-acre lots plus 158 .3-acre lots, vs.
– 264 .2-acre lots
• Value of .2 acre lot is much less valuable than a 5
• Density bonus for 106 Forest Protection Units may
need to be 100% to 150%--100 to 150 more units
– This means the town would need to allow two to 3 townhouse/small
lot SFR units to be built in the hamlet for every 5-acre lot preserved.
Abandoned Strip Mall Redevelopment
Park Creation/Flood Management
Economic Issues: Infill Setting
• Compare value of:
– 45 home lots in recreation/riparian vs.
– Ability to build an additional 196,000 sq ft commercial
• Land component of commercial development valued at
perhaps $20 to $30 per developable SF
• Each 1-acre home lot in the recreation/riparian area is
worth about $85,000 - $125,000
• Conversion of 1 acre residential lot to commercial at
4,356 SF is on target.
Implementation Issues: Summary
Is the municipal noncontiguous cluster program designed so
The growth area has needed water/wastewater
The permitting process is affordable and predictable (and
there is community support)
There is market demand for the proposed cluster
A developer will find the noncontiguous cluster scenario
at least as profitable as conventional development