TRENTON
-- Attorney General Anne Milgram announced
today that the state has successfully defended
a challenge to the Highlands Water Protection
and Planning Act, the 2004 law designed
to protect water and other natural resources
in an area of northwestern New Jersey spanning
parts of seven counties.
In a 22-page ruling, Superior Court Judge
Victor Ashrafi dismissed a lawsuit filed
by developer ABD Liberty, Inc. that had
challenged the Highlands Act on grounds
that it violated the equal protection and
due process guarantees of the New Jersey
Constitution. Attorneys for the Division
of Law represented the state Department
of Environmental Protection and the New
Jersey Highlands Council, contending in
court filings that ABD did not have a viable
complaint.
The Highlands Act regulates most types of
development throughout a 415,000-acre area
known as the “Preservation Area”
in order to conserve water supplies used
by more than half of New Jersey residents.
The law contains numerous exemptions including
farming, horticulture, construction of single-family
houses and all development with approvals
in hand by March 29, 2004.
“This
is an important outcome for New Jersey’s
natural resources, for our citizens, and
for our quality of life,” said Attorney
General Milgram. “We are committed
to defending state laws that protect our
environment and ensure that our state’s
precious resources are not harmed by unchecked
development.”
“Judge
Ashrafi has sent a clear message affirming
the sound planning principles, scientific
reasoning and regulatory provisions that
are at the heart of the Highlands Act,’’
added DEP Commissioner Lisa P. Jackson.
“We recognize the greater public good
this law serves through protection of sources
of water for millions of New Jersey residents
and preservation of the region’s exceptional
natural resources.”
“We
are very pleased with Judge Ashrafi’s
decision in this matter,” said John
Weingart, Chairman of the New Jersey Highlands
Council. “The importance and strength
of the Highlands Acts was upheld, ensuring
that the mission to protect, restore and
enhance the water quality, quantity and
other natuial resources and cultural resources
of the New Jersey Highlands will continue.”
Judge Ashrafi ruled that ABD's claim was
based upon purely economic interest, and
did not concern any constitutionally-protected
class of persons or special right. Ashrafi
held that Highlands Act provisions which
subjected development to stringent environmental
requirements were a rational method to protect
resources and, therefore, were constitutional.
The judge held that ABD could not prove
that the means the Legislature chose to
protect Highland resources was irrational
simply because some landowners were treated
more favorably than others. He ruled that
any alleged unfairness in applying the Highlands
Act to a specific property -- like ABD's
-- could be remedied by DEP when the property
owner applied for a permit to build. There
is an administrative process for property
owners to challenge DEP decisions, the judge
noted.
Ashrafi also rejected ABD's challenge to
a provision in the Highlands Act exempting
any Preservation Area development that had
received final approval by March 29, 2004
-- the date the Act was introduced into
the Senate. (ABD missed the March 29 deadline,
but obtained its subdivision approval before
the Highlands Act became law in August 2004.)
ABD alleged that the provision exempting
those with approvals by March 29, 2004 was
"manifestly unjust" and an unlawful,
retroactive provision. Ashrafi dismissed
these claims based upon another decision
-- OFP v. State of New Jersey -- rendered
by a New Jersey Appellate Court in August
2007. The Appellate Court held that the
provision was constitutional. The court
reasoned that exempting developments with
approvals in hand on the day the Highlands
Act was introduced in the Senate was a valid
means to protect Highlands resources from
inappropriate development rushed through
the local approval process between March
2004 and the time the law was enacted in
August 2004.
Judge
Ashrafi also dismissed ABD's claim that
the Act was unconstitutional as applied
to ABD's property, holding that the claim
was premature owing to ABD's failure to
apply to DEP for a development permit.
The State was represented by Deputy Attorney
General Lewin Weyl of the Division of Law.
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