Developer Loses, New Jersey Wins Water Protection Case

Superior Court Judge Victor Ashrafi Friday dismissed a challenge to the Highlands Water Protection and Planning Act, the 2004 law designed to protect water and other natural resources in the New Jersey Highlands.

The lawsuit filed was 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.

ABD Liberty, the builder of a proposed senior citizens' development, sued to abolish the Highlands Act on the grounds that limits on building in the watershed interfere with the constitutional obligations of towns to provide affordable housing.

New Jersey state attorneys represented the Department of Environmental Protection, DEP, and the New Jersey Highlands Council, arging that ABD Liberty did not have a viable complaint.

The New Jersey Highlands supply drinking water to many state residents. (Photo courtesy U.S. Forest Service)

"This is an important outcome for New Jersey's natural resources, for our citizens, and for our quality of life," said state Attorney General Anne 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."

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.

"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,'' said DEP Commissioner Lisa 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."

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.

The judge held that Highlands Act provisions which subjected development to stringent environmental requirements were a rational method to protect resources and, therefore, were constitutional.

"We are very pleased with Judge Ashrafi's decision in this matter," said John Weingart, who chairs 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."

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 - such as ABD's - could be remedied by the Department of Environmental Protection when the property owner applied for a permit to build. The judge noted that there is an administrative process for property owners to challenge DEP decisions.

The New Jersey Highlands covers parts of seven counties - Bergen, Hunterdon, Morris, Passaic, Somerset, Sussex, and Warren.

Copyright Environment News Service (ENS) 2008. All rights reserved.