Unabridged Letter to the Editor, Bernardsville News, 12/12/13

Time to set the record straight

 Unabridged with complete timeline & details
As originally submitted to The Bernardsville News, 12/12/13

 ACRES is not opposed to a new athletic field on the Bernards High School lower property.  But cutting down 250 trees on only one acre, some over 150 years old, after the destruction of Hurricane Sandy, seems irresponsible. There is a better way.

After months of legal and regulatory pressure, we are pleased that officials have finally recognized what we knew to be true:  the BHS pocket woodland includes two streams, wetlands, and the current project needs a stormwater management system, Planning Board and Board of Adjustment review.

We are always quick to blame those who “get in the way” when there appears to be a community need. Regrettably, elected officials chose to make a hastily, misinformed decision without performing their due diligence.  This project was fast-tracked with little regard to environmental impacts, flooding/drainage consequences or regulatory requirements. ACRES believes there was a failure of process by our elected officials.

Alternative Field Option

Somerset Hills Board of Education (BOE) President states that the goal is “to develop a full regulation-sized field.” Curiously, in March, concerned citizens (now members of ACRES) suggested a viable, cost-effective alternative plan. This north/south orientation creates a full regulation-sized field on the property (see Bernardsville News, “Bernards High Grad Drafts Alternative Plan,” 3/22/13).

This option provides real benefits to our children, community and environment at reduced cost to taxpayers. The BOE’s President states that this plan will “abuse infields” and be “too close to neighboring properties…creating a dangerous situation for neighbors.” ACRES’ engineering consultant has reviewed the plan and is satisfied there will be no impact on the infields and the northernmost end of the field will be at least 130 feet from the closest rear property line of neighbors.

Pocket Woodland, Then and Now

While only 2.61 acres, this pocket woodland is an integral part of a larger watershed at a headwater to the Passaic River and Great Swamp Watersheds. The site is a viable and valuable resource, rich with fauna and flora. This natural buffer area, filled with hundreds of trees, some over 150 years old, provides a critical environmental filter to the air we breathe, the water we drink and the noise and light that surround us. In fact, annual water quality studies of the onsite streams are conducted by BHS students five times a year.

Franklin R. Myers, esteemed BHS biology teacher and athletic coach for over 30 years, recognized the intrinsic value of what was then a six-acre forest. His visionary, conservationist approach to hands-on teaching resulted in the first-in-state and nationally recognized Nature Trail and wildlife sanctuary, beginning in the 1930’s. It is ironic that this educator and tennis coach rallied this community to preserve and protect this land for educational purposes and the community’s well-being.

Flawed Plans

The BOE’s engineering consultants insisted from Feb through Aug that the tributary to Penn’s Brook was a “manmade drainage ditch,” rather than a NJDEP-regulated State open water (stream) requiring a riparian buffer. Those plans ignored the buffer. They repeatedly and incorrectly either omitted the tributary or represented the stream as a “ditch.” They tried to convince the NJDEP, Somerset Union Soil Conservation District (SUSCD), US Fish and Wildlife Service, Borough Council and the public that it was merely a “ditch.”

BOE’s engineers stated there were no wetlands on the site, no stream and no need for a stormwater management system. We now know they were mistaken. The NJDEP and SUSCD have validated ACRES’ contentions. There is an EPA Priority Wetland, a NJDEP-regulated State open water requiring a riparian buffer and a need for a stormwater management system. Planning Board review is required for this capital project. Additionally, the Planning Board’s Planning Consultant has concluded in his report to the Board that the project requires approval by the Board of Adjustment.

The existence of a stream is confirmed by: the NJDEP; the Borough’s 2009 Watershed Analysis conducted by the Borough Engineer and partially funded by the School District; the Borough’s 2012 Environmental Resource Inventory; the 1976 Soil Survey Map for Somerset County, prepared by federal and state agencies; and anecdotal evidence since the 1950’s from neighboring property owners. The engineering consultants chose to ignore all the evidence at the expense of taxpayers.

Increased Expense

The BOE’s engineers should have known that regulatory agency approvals were required and budgeted accordingly. Instead, our District incurred expense for “additional items” such as an application to the SUSCD, an LOI and responses to the Borough Engineer. None of these items have anything to do with ACRES.  The Borough Council required approvals by the Borough Engineer as part of the “reasonable conditions” for the waiver, adding additional expense as well.

Engineering consultants repeatedly had to resubmit plans to regulatory agencies. Where were the internal quality controls at the engineering firm to ensure accuracy and compliance  prior to submissions to the BOE and regulatory agencies?

The original plans failed to meet the requirements of the NJDEP, SUSCD, and Borough Engineer. All ACRES did was to point out these deficiencies which have now been verified.

Between the time the court case was filed and the time the court hearing was held on 10/9, the BOE repeatedly reapplied for agency approvals, resubmitting revised plans that they should have done correctly from the start. The additional expenses are due to inaccurate, underestimated original costs by the engineering consultants. Legal fees were incurred due to a lack of due diligence on the part of the BOE, its engineers, and the Council.


Feb 23, 2012: Stakeholders and members of the Environmental Commission meet with the Facilities & Operations Committee (F&O) from the BOE to discuss flooding/drainage issues to their properties and BHS field.  BOE agrees to keep them informed. No mention is made of any lower field expansion plans.

Feb 5, 2013: Joint meeting between Borough Council and BOE. Decision is made to expand the lower high school field. The BOE applies for a waiver from the Borough’s Tree Protection Ordinance. The BOE agrees to accept about 12,000 cubic yards of free ‘clean’ fill from the Chase Bank site—stated cost savings: $300,000.

None of the usual regulatory due diligence required for a project of this scope is conducted. Few members of either the BOE or the Council walk the property before casting their votes.

No consideration is given to the Borough’s 3/3/05 “Stormwater Management Plan” which identified the high school site’s tributary to Penn’s Brook as in need of mitigation from channel erosion due to excessive stormwater flows, or the 2009 Watershed Analysis which recommended stricter stormwater management measures for any future development within this watershed. The consequences of cutting hundreds of trees and “filling in” woodlands with 10-13 feet of fill uphill from neighboring properties is not considered.

Despite the fact that in 2011 and 2012 the F&O Committee was “tasked with determining whether the practice field at Lower Olcott could be developed into a full regulation-sized field,” neighbors were never informed of the revised plans and only found out about the proposed field expansion on 2/12 through the grapevine, one week after the joint 2/5 meeting took place.

BOE states that the plan “extends the current field by 20 yards.” But in order to accommodate what would appear as a relatively small expansion (actually 11 to 30 yards depending on where the extension is measured); the BOE’s field expansion will create a total disturbance area of up to 170 ft. well into the woodland.

Feb 14: Borough Council grants the BOE the waiver to remove an unspecified and unlimited number of trees from the woods, “saving as many trees as possible” and with a few “reasonable conditions,” including review by the Borough Engineer.  The public is told this project does not need Planning Board review.

Had due diligence been conducted, the Borough and the BOE would have realized that the project needed Planning Board review, could be subject to tree cutting restrictions by US Fish and Wildlife Service, regulatory permits from the NJDEP, and probable stormwater management measures—all of which would increase costs.

Feb 20: At the BOE meeting, contrary to what is stated by the BOE, no mention is made about going to the Planning Board or the State Department of Education for approvals.

March 5: As stated by the Board President, BOE’s engineers indicate there are no wetlands or stream in the proposed area. However, this is later proven false on 8/21. The NJDEP identifies an EPA Priority wetland and two State open waters, tributaries of Penn’s Brook, on the property, all of which will be regulated under the New Jersey Freshwater Wetlands Protection Act Rules.

The BOE’s engineers state they have no intention of applying for a Letter of Interpretation (LOI) from the NJDEP. However, after much public pressure, they will later apply for an LOI on Apr 1.

The BOE’s engineers reassure the public that there will be no additional contribution of runoff to neighboring properties. But common sense suggests that cutting down hundreds of trees and shipping in 10-13 feet of fill will create flooding/drainage issues for properties adjacent to and downslope of the high school. The Borough’s own “Stormwater Management Plan” supports this. Contrary to the BOE’s engineer’s statements, the SUSCD rules that a stormwater management system must be created.

The public is told that the project will take 30-45 days from start to finish, free fill is ready to move, and the project is “a done deal.”

Despite BOE’s claims, the plans do not meet all of the “reasonable conditions” set by the Borough Council, and fail to meet the stormwater management regs.

March 6: The BOE’s submission to the NJDEP for a Flood Hazard Area Applicability Determination (FHA) is inaccurate and incomplete and ultimately needs to be resubmitted. BOE’s engineers omit the northernmost tributary to Penn’s Brook on the plans, which is in fact a NJDEP-regulated State open water requiring a riparian buffer.

March 8: The BOE’s submission to SUSCD requires revision because it fails to prevent soil erosion and fails to provide any stormwater management provisions. At the insistence of SUSCD and the Borough Engineer, revised plans are once again resubmitted.

March 15: The BOE’s engineers omit the northernmost tributary on the plans. The NJDEP wrongly determines that no Flood Hazard Area permits are required. That ruling will be reversed on 8/21. The project encroaches upon the riparian buffer of the site’s northernmost tributary to Penn’s Brook and will require a Flood Hazard Area permit from the NJDEP.

March 27: BOE marks hundreds of tree for cutting. At the BOE meeting, the public is told that the “stream” is merely a “ditch” and not to be concerned about drainage and flooding issues. No stormwater management system or stream is shown on the plans submitted to SUSCD.

Mar 29: Engineering consultants flag the stream. The staking indicates intent to “fill” in the stream and ignores any buffer. In fact, the BOE’s engineers actually label the site’s northernmost tributary to Penn’s Brook as an unregulated “drainage ditch.”

BOE’s engineers fail to include a stormwater management facility on their plans. Gravely concerned with flooding and drainage issues, ACRES issues a report to SUSCD indicating that the project, as proposed, requires a stormwater management system. SUSCD apparently agrees and the BOE later revises its plans to include a 560 ft. infiltration trench.

To date, the BOE still does not have a valid Soil Erosion and Sediment Control Certification. In fact, the present stormwater management system does not meet NJ Stormwater Best Management Practices and NJDEP “design standards.”

April 1: Misstatements and outright omissions by the BOE’s engineers to regulatory bodies and the public leave stakeholders with absolutely no confidence in their actions.

Active Citizens for Responsible Sustainability, Inc. (ACRES) is formed as a direct result of a process run amok. Having exhausted all possible options, and knowing that trees, once cut, cannot be restored, ACRES is compelled to take legal action.

BOE’s engineers submit the LOI to NJDEP claiming that that the stream is a “ditch” and try for many months to convince the NJDEP that it is merely a “ditch.”

April 8: BOE fails to contact US Fish and Wildlife Service.  A proposed project in a woodland along streams flowing to the Great Swamp often provide suitable habitat for federally endangered Indiana bat and federally protected migratory birds. Federal policy often includes recommending tree clearing restrictions, especially “timing” restrictions. In the absence of the BOE’s due diligence, ACRES submits a request to US Fish and Wildlife to review the project.

April 19: State Erosion Control Engineer from Dept. of Agriculture reviews the BOE’s engineer’s erosion control plan and makes many recommendations, including requiring  a collection system “to safely deliver the runoff without causing erosion.”  This action further validates ACRES’ actions and neighbor’s concerns of flooding.

May 15: Due to an initial faulty notice of the LOI on 4/1, re-notification is required to neighboring property owners on 4/23. In response to a public notice required by the BOE, ACRES submits comments to the NJDEP.

May 24: The BOE complies with only one of five recommendations from US Fish and Wildlife. BOE restricts tree cutting from 3/15-9/30, due to suitable habitat for the Indiana bat and federally protected migratory birds.

May 28: NJDEP writes to the BOE’s engineers instructing them to resubmit a revised plan and show a second on-site stream with its riparian zone. This was missing from the BOE’s 3/15 FHA Applicability Determination.

June 4 and Aug 8: BOE’s engineers write to NJDEP claiming that the missing stream is actually an unregulated, manmade drainage ditch.

July 19: Public learns that on 4/25, the BOE was informed that the “free clean fill” (a $300,000 savings) is unsuitable and is rejected. To date, taxpayers have yet to learn the cost of the new fill.

Aug 21: NJDEP issues an LOI and officially rejects the BOE’s claim that the northernmost tributary is a manmade ditch. In fact, it is a NJDEP-regulated State open water subject to a regulated riparian zone. It establishes that the site contains an EPA Priority Wetland and two NJDEP-regulated State open waters (streams). The NJDEP’s issuance of the LOI confirms that ACRES’ appeal of the 3/15 FHA Applicability Determination is correct.

Aug 28: NJDEP, once again, mistakenly issues a determination that no FHA permit is required, this time based on a plan, submitted by the BOE that fails to properly identify the site’s northernmost stream as a regulated State open water. The LOI, issued by the NJDEP on 8/21, just one week earlier, confirms NJDEP’s mistake.

Aug 30: SUSCD approves BOE plans which show the tributary as a ditch and the project encroaching upon the buffer. However, the Borough Engineer does not approve and the BOE must resubmit.

Oct 9: BOE acknowledges in court that the plan requires review by the Planning Board and the State Department of Education. Because of encroachment upon the NJDEP riparian zone, BOE acknowledges the need to modify plans.

Active Citizens

This issue is an example of local government treading on its own people with no due diligence and little regard to regulatory requirements or environmental issues.

From an historical perspective, ACRES’ decision to apply pressure through legal and regulatory channels, in part, was influenced by our town’s checkered past to comply with environmental regulations. Recall the 2007 Dreesen  pond dredging settlement paid by the Borough and the 2012 Nervine Pond benzene dredging.

ACRES—with members from Bernardsville and area communities—believes there is a right and wrong way to spend taxpayer dollars on public projects.

If elected officials conducted business in a responsible and transparent manner, perhaps non-profit groups would not need to be formed. Because of fear of retaliation, it is necessary to provide anonymity to individuals who wish to support sustainable land use efforts.

We continue to maintain that as a direct result of the legal and regulatory process–in part brought by ACRES involvement–the BOE’s plans now recognize this as a capital project with a two streams, wetlands, and the need for  stormwater management.

Jeanne and David DePodwin

Trustees, ACRES