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For Immediate Release:  
For Further Information:
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August 10, 2007   

David Wald or Peter Aseltine
609-292-4791

Office of The Attorney General
- Anne Milgram, Attorney General

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Court Rejects Challenges to Highlands Act

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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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