TRENTON
– Attorney General Anne Milgram announced
today that the state has successfully defended
the Highlands Water Protection and Planning
Act in two cases brought by developers challenging
the constitutionality of the act.
The
Highlands Act, which became law in August
2004, protects from overdevelopment approximately
415,000 acres of environmentally sensitive
land, known as the Preservation Area, in
parts of Warren, Sussex, Hunterdon, Somerset,
Morris, Passaic and Bergen counties.
In
these two cases, OFP, LLC v. State of New
Jersey and Castle Rock Estates v. State
of New Jersey, Department of Environmental
Protection and Township of West Milford,
developers alleged that the act resulted
in an unconstitutional taking of their property
without just compensation and challenged
the “retroactive” provision
in the act that “grandfathered”
from Highlands permit requirements only
those projects with permits in hand by March
29, 2004.
OFP
sought to develop a 93-acre tract in Washington
Township, Morris County, and Castle Rock
had sought to develop a 28-acre parcel in
West Milford, Passaic County. Each of these
developers had obtained development approvals
or permits after March 29, 2004 but before
the act was signed into law on August 10,
2004. In addition, the developer in Castle
Rock alleged that the enforcement and penalty
provisions of the Highlands Act were unconstitutional
because they imposed penalties without an
opportunity for a hearing.
In
opinions issued today, the New Jersey Appellate
Division held that the act could be applied
retroactively to both the OFP and Castle
Rock properties. The court held that the
March 29, 2004 cut-off date for development
to be exempt from the act was rational because
it avoided a last-minute rush for development
approvals in an environmentally sensitive
area between the time the act was introduced
and the time it was adopted. The court also
rejected OFP’s claim that its property,
located next to a landfill, ought to be
“removed” from the Preservation
Area because its inclusion would not help
to preserve water quality.
The
Court held that inclusion of OFP’s
property in the Preservation Area could
also serve other goals of the act, such
as stopping sprawl and implementing a coordinated,
regional development plan. Importantly,
the court affirmed that the drawing of boundary
lines such as the Preservation Area need
not be made with mathematical precision
and that the Legislature was not obligated
to inspect every property prior to placing
it within the Preservation Area. The court
noted that the Highlands Act allows the
state Department of Environmental Protection
to take into account the natural resources
on individual properties in deciding whether
to waive its permit requirements.
The
court also held that the act did not unconstitutionally
take OFP or Castle Rock’s properties,
since both developers could have applied
for hardship waivers from the strict limits
on development. Finally, the court rejected
Castle Rock’s claims and held that
the enforcement and penalty provisions of
the act expressly afforded alleged violators
an opportunity to contest charges brought
against them.
The
OFP case was handled by Deputy Attorney
General Dean Jablonski, and the Castle Rock
Case was handled by Deputy Attorney General
Barbara Conklin.
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