First and foremost, if there were a strong sense of urgency and purpose, ways may be found to preserve Hickory Swamp. To wit: The county has expressed a willingness to work with the Township in supporting efforts to acquire the Alfieri property. Specifically, in a conversation with [private conversation ] of the County Planning Office, if the Township made the effort to publicly take steps to identify the portion of Hickory Swamp, and adjacent Sawmill Brook, the county would be an active partner in efforts to negotiate terms with the property owner.
Secondly, adherence to the Municipal Land Use Law will result in a denial of this application. Regardless of the town's previous determination of a complete application, the applicant's responsibilities were far from fulfilled. For example, water run off calculations were wrong - the applicant did not include the hundreds of thousands of gallons of water entering the site from the Greek property. In this vein, when I appeared at the Planning Department counter, spattered in mud, the former staff person insisted there were no wetlands at the site. He then stated he never visited the site and did not know if there were wetlands present. My survey of the site yielded several bodies of standing water in ditches, and additional wetlands habitat that were not identified by the applicant.
If the township had inspected the site, they would have known of these existing conditions. A thorough review of soils conditions (including severe slopes) and flood hazard areas by staff would have also proven the applicant's submission as both incorrect and incomplete. I could go on, but these examples illustrate the MLUL was violated by the applicant, but the law's standards are still in effect. It is up to the Planning Board/Township to require compliance.
So, whether or not the judge requires a new wetlands survey, the township certainly has the weight and authority of law to require compliance with the land use law. Such compliance would result, in the minimum, of a severely curtailed development, possibly to the point of it not being economically feasible to the developer. Regarding the prior agreement, it is a maxim of law that if the original act (agreement in this case) is flawed, it is null and void. Additionally, the affordable housing folks were not aware of the environmental restrictions at the time of the agreement.
Coupled with the massive development of nearly 2,000 new housing units in the Redevelopment Zone, there is more than enough opportunity to place affordable housing in an area that has existing services.
The bottom line is elegantly simple. If the town wishes to find a way to preserve Hickory Swamp, the law IS on its side. I've battled David Sampson in court, Tom Kelso, and a host of others over these very same issues. It took private citizens to accomplish what elected officials chose not to do. I suggest the following course: Township Environmental Commission, then Council and the Mayor all take formal action to declare the intent to conserve Hickory Swamp:
1.Township works with Middlesex County open space and the supporting planning office to work together (with the state Green Acres) to present a united front in discussions with Mr. Alfieri.
2. The Township exploits (fulfill) the requirements of the MLUL which will cause the site plan to be severely restricted.
3. Citizens work with the township, county, and other open space/water protection groups in a cooperative partnership to at least try to make this happen.
As a historian and a preservationist and with nearly forty years of waging successful fights, I know that these suggestions will yield a far different outcome if the township does something.
If the township chooses not to act to at least try to save Hickory Swamp, the public will know. I will be very glad to assist in this endeavor to save a truly unique landscape in a rapidly-urbanizing East Brunswick.