TRENTON – January 11, 2008 – 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.
