Petition for Writ of Certiorari — Shope v. New Jersey

Supreme Court, U.S.

FILED

is | ae 091288 APR 12 2010

ee a OFFICE OF THE CLERK

Supreme Court of the United States

DAVID SHOPE, HANK KLUMPP CHARLES SHOOP

ROBERT BEST, RUTH BEST, ANDREW DRYSDALE,

LOIS DRYSDALE, JERRY W. KERN, and

SANDRA KERN,

Petitioners,

v.

STATE OF NEW JERSEY, NEW JERSEY DEPART-

MENT OF ENVIRONMENTAL PROTECTION, NEW

JERSEY HIGHLANDS WATER PROTECTION AND

PLANNING COUNCIL, and NEW JERSEY WATER

SUPPLY AUTHORITY,

Respondents.

On PETITION FOR A Writ OF CERTIORARI TO THE

SUPERIOR Court OF NEW JERSEY, APPELLATE DIVISION

PETITION FOR A WRIT OF CERTIORARI

STEPHEN H. SHAW JOHN M. ZAITER

HuESTON McNUuLTY, PC., Counsel of Record

256 Columbia Turnpike BROSCIOUS, FISHER AND ZAITER, PC.

Suite 207 111 West Washington Avenue

Florham Park, NJ 07932 PO. Box 230

(973) 377-0200 Washington, NJ 07882

(908) 689-0992

jmz@bfz-legal.com

Attorneys for Petitioners

228750 g

COUNSEL PRESS

(800) 274-3321 * (800) 359-6859

2

QUESTIONS PRESENTED

Does a State Statute which only promotes the public

purpose of preserving undeveloped land in its

natural state and which directly results in a seventy-

five percent (75%) depreciation in property value,

with an aggregate equity loss of $15 billion dollars,

result in an unconstitutional taking of property

without compensation in violation of the Fifth and

Fourteenth Amendments to the United States

Constitution?

Whether the right to farm should be recognized as

a fundamental! right, and therefore any legislation

regulating farming should be subject to a higher

standard of scrutiny?

1M)

PARTIES TO THE PROCEEDING

The parties below are listed in the caption with the

exception of the County of Warren, which did not

participate in the appeal since as a political subdivision,

it could not assert U.S. Constitutional violations against

the State of New Jersey.

iil

TABLE OF CONTENTS

QUESTIONS PRESENTED ................

PARTIES TO THE PROCEEDING ..........

TAeeists OF CUI EERE. osc c cv ces ceeneeesss

PETITION FOR WRIT OF CERTIORARI ...

CP Ee eee Oe tee 8 bie ieee ee ees

STATEMENT OF JURISDICTION ..........

CONSTITUTIONAL PROVISIONS AT ISSUE

STATEMENT OF THE CASE ...............

REASONS FOR GRANTING THE PETITION ..

I. THE COURT SHOULD DECIDE

WHETHER REGULATION OF

FARMING SHOULD BE SUBJECT

TO A HIGHER STANDARD OF

bg is Serre eee er rr ee

Page

ill

v1

9

iv

Contents

Page

Il. THE SUPREME COURT SHOULD

DECIDE WHETHER THE STATE OF

NEW JERSEY’S EXERCISE OF ITS

POLICE POWERS THROUGH THE

ENACTMENT OF ENVIRONMENTAL

LEGISLATION IS A TAKING OF

PRIVATE PROPERTY WITHOUT

PAYMENT OF FAIR AND JUST

COMPENSATION PURSUANT TO

THE FIFTH AMENDMENT .......... 16

Si Fi 3 ee er rrr ea rer 22

TABLE OF APPENDICES

Appendix A — Opinion Of The Superior Court

Of New Jersey, Appellate Division Decided

Bentembper 4, BO00 2... cic kc se wev erences

Appendix B — Order Denying Plaintiffs’ Motion

For Reconsideration Pursuant To R. 4:49-2 Of

The Superior Court Of New Jersey, Law

Division, Mercer County Filed May 15,

ee ee eee eh eae ees

Appendix C — Excerpted Transcript Of Motion

RP PRO 10, ok ove vas vei ewer ees

Appendix D — Order Of The Superior Court Of

New Jersey, Law Division, Mercer County

Dismissing Complaint Dated And Filed

Ay ee a ee ee ara re

Appendix E — Excerpted Transcript Of Motion

Hearing Dated January 18, 2008 ...........

Appendix F — Order Of The Supreme Court Of

New Jersey Denying Petition For Certification

Dated January 12, 2010 And Filed January 14,

PA vo oes 64s ees EU a ees

Appendix G — Relevant Statutes .............

48a

vi

TABLE OF CITEDAUTHORITIES

Page

CASES

Agins v. City of Tiberon, 447 U.S. 255 (1980) .. 17

Collins v. Harke-Heights, 503 U.S. 115, 125

S. Ct. 1061, 177 L. Ed. 2d 261(1992) ........ 10

County of Warren, et al. v. State of New Jersey,

et al., 409 N.J.Super. 495 (App. Div. 2009) ... 1

Eisenstadt v. Baird, 405 U.S. 438, 92 S. Ct. 1029,

ee ee, ee Oe CUTE occ d svn csevicoeucss 10

Goldblatt v. Town of Hempstead, 369 U.S. 590

DSIRE are arr ara ere area ap ar nar 16

Griswald v. Connecticut, 381 U.S. 479, 85S. Ct.

PG ra, 20 ba es O08 O50 (ING) 6 on cece aes 10

In Re Adoption of Highlands Regional Master

Plan, Docket No. A-1054-08 ............... 20

In Re Highlands Water Protection and

Planning Act Rules N.J.A.C. 7:38-1 et seq.,

Docket No. A-984-O05T 1 .............00000:- 19

Lawton v. Steel, 152 U.S. 188 (1894) ......... 10, 16

Loving v. Virginia, 388 U.S. 535, 87S. Ct. 1817,

Be Gis Es BE WTO SOT) ccc kc seesasssesas 10

Cited Authorities

Page

Meyer v. Nebraska, 262 U.S. 390, 43 8. Ct. 625,

(Pe eB 2h | ee 10

Moore v. City of Fast Cleveland, 431 U.S. 494

See eek sce ee ee 9

OFP LLC ». State, 395 N.J. Super. 571(App. Div.

2007), 930 A. 2d 442, Judgment aff’d by 197

N.d. 612, 968 A. ZG SIO CG) vce vc cedass 20

Pennsylvania Coal Company v. Maylan,

PRS te. OOO CUE? kkk bk ven ee eace eed es sees 17

Price v. Society of Sisters, 268 U.S. 510,

45 8. Ct. 571, 69 L. Ed. 2d 1070 (1925) ...... 10

Reno v. Flores, 507 U.S. 292, 118 8S. Ct. 1439,

ESO ba Bee Oe PERO) 6 oo his ean COS ke aren 1]

Rochin v. California, 342 U.S. 165, 72 S. Ct. 205,

OS Es. Bl. 2G 26m CIS) oi icc sceye ce ecavaes 10

Skinner v. Oklahoma ex rel. Williamson,

316 U.S. 535, 62 S. Ct. 1817, 86 L. Id. 2d 1665

SUNN ay ba a a RET ee Aen ee eee 10

United States v. Plume, 447 F.3d 1067 (8 Cir.

Soe oe Weed OO ee ee ees 15

Washington v. Glucksberg, 521 U.S. 702, 117

S.Ct. 2268, 188 L. Eid. 2d T7Z2 (1997) ........ 10

VIII

Cited Authorities

Page

UNITED STATES CONSTITUTION

DO

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Ce ee a ee a i. me al

STATUTES

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DO

Par ee ea ha 6 a es Go oe So ewe eens 6

Pia ee OE BEG, oie in ow os ha eee cen 8

ES Oe Fee: ee ae ree 8, 20, 21

Fe SD oe ee ve eee cswvce 8, 19, 20, 21

Re BS aes Eee ere ae 8

Pe EE % cr Sk so kos AAD KOO 18

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Cited Authorities

OTHER

Comment: Right to Farm Laws: Breaking

New Ground in te Preservation of Farmland,

45 U. Pitt. Li Be reece cee eee

Economie Research Service. (2000, September).

A History of American Agriculture, 1607-

2000 ERS-POST-12.) Washington, DC:

Author, http: www.agclassroom.org/gan/

tumeline/farmers. land. htm 2... 0... cece eee

Book of Genesis, The Holy Bible, King James

Version . «so coc De cn oe se 9, 1

Rand, Ayn, “Man’s Rights”, Capitalism: The

Unknown Ideal, Penguin Group (USA) Inc.,

copyright 1946, 1962, 1964, 1965, 1966

Page

1]

PETITION FOR WRIT OF CERTIORARI

David Shope, Hank Klumpp, Charles Shoop, Robert

Best, Ruth Best, Andrew Drysdale, Lois Drysdale, Jerry

W. Kern, and Sandra Kern respectfully petition for a

Writ of Certiorari, to review the judgment of the

Appellate Division of New Jersey, which was denied

certification by the Supreme Court of the State of New

Jersey.

OPINIONS BELOW

The opinion of the New Jersey Appellate Division

was decided on September 4, 2009 and is reported in

County of Warren, et al. v. State of New Jersey, et al.,

409 N.J.Super. 495 (App.Div. 2009), 978 A.2d 312; it

appears at Appendix A to the petition. Petitioner’s

Appendix (Pet. App.) la - 27a. The opinions and rulings

of the trial court (New Jersey Superior Court,

Law Division, Mercer County) were not published. The

May 15, 2008 Order denying plaintiffs motion for

reconsideration appears at Appendix B. Pet. App. 28a —

30a. The April 11, 2008 opinion of the trial court denying

plaintiffs motion for reconsideration appears at

Appendix C. Pet. App. 3la — 34a. The January 18, 2008

Order of the Superior Court of New Jersey, Law

Division, Mercer County dismissing the complaint

appears at Appendix D. Pet. App. 85a — 86a. The

January 18, 2008 opinion of the trial court granting the

motion to dismiss the complaint appears at Appendix

EK. Pet. App. 37a - 45a. The Order of the Supreme Court

of New Jersey denying the petition for certification

dated January 12, 2010 and filed January 14, 2010

appears at Appendix F. at Pet. App. 46a — 47a.

2

STATEMENT OF JURISDICTION

The Order denying certification by the New

Jersey Supreme Court was signed January 12, 2009 and

filed on January 14, 2009. The opinion of the New Jersey

Superior Court, Appellate Division, was decided

September 4, 2009. The Order of the New Jersey

Superior Court, Law Division, denying the plaintiffs’

motion for reconsideration was filed May 15, 2008. The

Order of the New Jersey Superior Court, Law Division,

dismissing plaintiffs’ complaint was filed January 18,

2008. This Court has jurisdiction under 28 U.S.C.

§ 1257(a) to review the final decision by the New Jersey

Courts of United States Constitutional issues.

CONSTITUTIONAL PROVISIONS AT ISSUE

The Fifth Amendment of the United States

Constitution provides in pertinent part: “nor shall

private property be taken for public use, without just

compensation.” U.S. Const. Amend. 8.

Section 1 of the Fourteenth Amendment to the

United States Constitution provides in pertinent part:

“nor shall any State deprive any person of life, liberty,

or property, without due process of law; nor deny any

person within its jurisdiction the Equal Protection of

the laws.” U.S. Const. Amend XIV, §1.

3

STATEMENT OF THE CASE

The New Jersey Highlands Act is a policy initiative

of massive scope and utopian ambition. Water

conservation and preservation of open space are to a

substantial extent pretexts or euphemisms for what is

in fact an anti-development measure. The net effect of

the entire legislative scheme, when fully implemented,

will take 859,000 acres, or about 1,342 square miles, and

place it off limits to development. A consequence to

private landholders is a loss in the value of their

property so great as to be tantamount to public

confiscation. These are among the conclusions contained

in a political scientist’s expert repor. which, together

with the extensive record below including the expert

reports by a hydrogeologist, real estate appraiser and

professional planner, illuminate the Act’s constitutional

violations.

The issue of whether the New Jersey Highlands

Water Protection and Planning Act is a taking of private

property by the State without just compensation was

raised by the opinions of the Trial Court and the

Appellate Division denying Plaintiffs’ challenge that the

Act was a violation of their constitutional right to equal

protection.

Plaintiffs had submitted expert reports and

documentation, including a 20038 interoffice

memorandum from the Administration of Governor

James E. McGreevy, which demonstrated that the true

purpose of the Act was to serve as his environmental

legacy by implementing the eco-socialist response of

environmental lobbyists to the 2002 United States

4

Forest Service and Department of Agriculture Study

of the New York/New Jersey portion of the four-state

Highlands Region: freeze all further development in the

859,000-acre area under the guise of water resource

protection. As an arbitrary, manipulated and fictional

designation without a scientific or rational basis,

plaintiffs asserted that the “preservation area”

established by the Act violated ordinary economic

interests as protected by the equal protection provisions

of the New Jersey and United States Constitutions.

On motion for reconsideration, plaintiffs raised the

issue of whether the right to farm is a fundamental right

entitled to enhanced protections under the due process

clause of the Fourteenth Amendment. While a farmer’s

equity reflects the development potential of the land, it

is not synonymous with an interest in developing or

selling the land. The average 75% diminution in land

value caused by the Highlands Act destroys a farm’s

equity, which is needed as collateral to borrow against

for equipment purchases, capital improvements,

working capital, and to buffer lean years. Land value is

the primary asset of a farm business. By destroying land

equity, the Act makes it impossible to engage in farming

as a livelihood.

The Complaint was filed in conjunction with the

County of Warren, a political subdivision of the State of

New Jersey whose elected Freeholders are, pursuant

to their oaths, sworn to uphold the Constitution of the

State of New Jersey and the United States. The

Complaint alleged constitutional violations under the

New Jersey Constitution, since as a political subdivision,

the County could not assert federal constitutional claims

5

against the State. An amended pleading asserting the

parallel United States Constitutional violations and a

separate count asserting violations under the Civil

Rights Law, § 1983, was attached to a motion to amend

the pleadings filed on behalf of the nine individual

plaintiffs, who are property owners and farmers within

the Preservation Area representative of all those whose

rights have been violated.

In addition to denying this motion, the Trial Court

denied an application to have the pleadings amended to

merely add the federal citations, indicating that the

New Jersey courts and Constitution were fully capable

of protecting plaintiffs’ rights under the United States

Constitution. To the contrary, the trial and appellate

decisions establish that the New Jersey Highlands Act

is a $15 billion dollar uncompensated taking unprotected

by the Constitution of the State of New Jersey.

The Appellate opinion analyzed plaintiffs’ proofs and

argument pursuant to takings principles as applied by

New Jersey Courts and concluded that the Plaintiffs

could avail themselves of the Act’s waiver/takings

application mechanism or receive compensation

pursuant to the Highlands Transfer of Development

Rights (TDR) program. The takings/waiver mechanism

is an economic futility and practical impossibility. The

only statutory mechanism to compensate property

owners for the taking of 75% of their property value in

the 415,000-acre preservation area is a TDR program,

which six years after the Act’s effective date remains

chimerical, has not generated a single transaction, and

can never function on the necessary seale to address

the takings since it requires voluntary participation by

municipalities.

6

In its holding, the Appellate Division goes beyond

violating the Constitutional protection from State

takings of private property without just compensation

to violation of the fundamental right to own private

property which it protects. The Court held:

“Plaintiffs argue that Count Four of their

Complaint was erroneously dismissed because

the Highlands Act’s establishment of the

Highlands Region with a core preservation

zone is ‘a legal fiction without scientific basis.’

They assert that the Highlands land area is

distinguishable from the hydrogeologic

conditions in the Pinelands, where those

conditions warranted regulating the land by

establishing a preservation area. lor present

purposes, we will assume that they are

correct. However, they ignore the legislative

findings contained in N.J.S.A. 13:20-2 that

expressed the legislature’s concerns to

protect other exceptional natural resources

such as clean air, contiguous forest, lands,

wetlands, pristine watersheds and habitat for

fauna and flora,” as well as “many sites of

historic significance.”

In other words, the State’s interest in preserving open

space is in itself sufficient to justify exercise of police

powers through regulations which prevent use of

private property.

In order to understand how the Act violates the

fundamental right to own private property, analysis

begins with English Common Law and the concept of

7

livery of seisin. No real right to land could be transferred

without livery of seisin, a ceremony with witnesses

generally standing on the land itself. Accompanying the

words “Know ye that I have given,” the feoffee was then

handed an object representing the land such as dirt,

turf cr twigs. Over a period of hundreds of years, the

delivery of a deed came to replace delivery of twigs, but

the concept of physical possession and ownership of land

remained.

At the time of the American Revolution, the English

Common Law of real property was fully established, but

with a caveat: we were a free people with liberty to own

private property without any obligation to the English

Crown. Our Constitution protects that right by

forbidding the State from taking property for a public

purpose without payment of just compensation.

Under current property law theory, instead of twigs

symbolizing possession and ownership, property

ownership is likened to a bundle of sticks. Each stick

represents a different property right. As long as the

government reasonably exercises its police powers in

the form of environmental regulations and doesn’t take

too many sticks away, there is no violation of the right

to own private property with constitutional protections

from takings by the State.

Arguments for environmental regulations imposing

preservation standards are premised on the public

interest that preservation of land in its natural state is

a universal, absolute and paramount State interest.

An individual may own private property, but the State’s

interest in preserving it justifies leaving the owner with

8

one stick: the right to use the land as open space for the

benefit of the public. This consequence mirrors the

Marxist based eco-socialism concept of common grounds

replacing private property. It is based on a usufructary

property law system rooted in Roman Civil Law which

is alien to our Common Law concept of private property.

The New Jersey Court’s decision validates the variant

of eco-socialism embodied by the Highlands Act.

Plaintiffs’ Petition for Certification to the New

Jersey Supreme Court was denied on January 12, 2010

and filed January 14, 2010.

REASONS FOR GRANTING THE PETITION

The State of New Jersey enacted the New Jersey

Highlands Water Protection and Planning Act

(N.J.S.A.13:20-1 et seq.) The Act prohibits development

within 410,000 acres area mapped by the State

Department of Environmental Protection. The

Highlands Act itself concludes that it will result in the

“taking of private property” and therefore provides a

“compensation” mechanism for harmed property owners

known as the “Transfer of Developments Rights

Program”. (N.J.S.A. 13:20-13) However, the Transfer

of Developments Rights Program is an impossibility

based on its voluntary nature and the massive scope of

the takings which will not compensate the landowners

for the taking of seventy-five percent of their property

value. The Highlands Act authorized the DEP to develop

regulations to implement a waiver process. (N.J.S.A.

13:20-33(b). The DEP promulgated Takings Waiver

Application process N.J.A.C. 7:38-6.8, which plaintiffs

are required by the New Jersey Supreme Court to

)

exhaust before asserting a takings claim, is an economic

futility leaving no remedy to challenge the taking by

the State of New Jersey.

Additionally, this case raises an extraordinarily

important and difficult issue. Should farming be

recognized as a fundamental right and therefore subject

to strict scrutiny or intermediate scrutiny protection

under the Fifth Amendment Due Process Clause’? The

right to farm is a right that does not have its origin in

the United States Constitution but in the Holy Bible.

Farming can be traced back to the Bible’s Book of

Genesis as a gift given to mankind for our subsistence.

In addition, farming is a natural right that is deeply

rooted in our great Nation’s history and regulation of

farming should require a heightened level of scrutiny.

I. THE COURT SHOULD DECIDE WHETHER

REGULATION OF FARMING SHOULD BE

SUBJECT TO A HIGHER STANDARD OF

SCRUTINY

The right to farm is a right which is deeply rooted

in the Nation’s History, that neither liberty nor justice

would exist if said right were sacrificed. In fact, the right

to farm is a natural right, which has it’s roots in the

Book of Genesis and God.

The Supreme Court has historically found

constitutional protection to apply to those liabilities

“implicit in the concept of ordered liberty [such that]

neither liberty nor justice would exist if [they] were

sacrificed.” Moore v. City of Fast Cleveland, 431 U.S.494,

503(1977). The Due Process Clause guarantees more

10

than fair process. Washington v. Glucksberg, 521 U.S.

702, 719, 117 S. Ct. 2258, 2267, 138 L.Ed. 2d 772(1997)

(citing Collons v. Harke-Heights, 503 U.S. 115, 125 8.

Ct. 1061, 1068-1069, 177 L. Ed. 2d 261 (1992)). “The

clause also provides heightened protection against

governmental interference with certain fundamental

rights and liberty interests.” Washington v. Glucksberg,

521 at 719, 117 S. Ct. 2258, 226). The Supreme Court

has held that there are additional rights which are

implicit in the Due Process Clause. Those rights, which

the court has labeled as fundamental include:

“the rights to marry, Loving v. Virginia, 388

U.S.535, 87 S. Ct. 1817, 18 L. Ed. 2d

1010(1967); to have children, Skinner v.

Oklahoma ex rel. Williamson, 316 U.S. 535,

62 S. Ct. 1817, 86 L. Ed. 2d 1665(1942); to

direct the education and upbringing of one’s

children, Meyer v. Nebraska, 262 U.S. 390, 438

S. Ct. 625, 67 L. Ed. 2d 1042(1923); Price v.

Society of Sisters, 268 U.S. 510, 45 8. Ct. 571,

69 L.Ed. 2d 1070 (1925); to marital privacy,

Griswald v. Connecticut, 381 U.S. 479, 85 S.

Ct. 1678, 14 L. Ed. 2d 510(1965); to use

contraception, zbid; Fisenstadt v. Baird, 405

U.S. 438, 92 S. Ct. 1029, 31 L. Ed. 2d 349

(1972); to bodily integrity, Rochin v.

California, 342 U.S. 165, 72 S. Ct.205, 96

L.Ed.2d 183(1952); and to abortion, Casey,

supra.”

Washington v. Glucksberg, 521 U.S. 702, 721, 117 S.Ct.

2258, 2267.

1]

The Supreme Court has established a “method of

substantive-due-process analysis [which] has two

primary features: rights and liberties which are

objectively, ‘deeply rooted in the Nation’s history and

tradition’, and ‘implicit in the concept of ordered liberty’,

such that ‘neither liberty nor justice would exist if they

were sacrificed.” /d. at 721,722, 1178S. Ct., at 2268. The

Fourteenth Amendment forbids the government from

infringing upon fundamental liberty interests, unless the

infringement is narrowly tailored to serve a compelling

State interest. See, e.g., Reno v. Flores, 507 U.S. 292,

302, 113 S. Ct. 1439, 1447, 123 L. Ed. 2d 1(1993).

Legislation reflecting the existence of the right to

farm is now in effect in all 50 states. Forty-six of these

were in place as of 1983 and were developed in response

to the increased demand for agricultural products and

the substantial changes in population patterns in the

1970’s. Comment: Right to Farm Laws: Breaking New

Ground in te Preservation of Farmland, 45 U. Pitt. Law

Rev. (1984). While the legal mechanisms to protect the

right to farm focused on exemption from nuisance

liability caused by various aspects of agricultural

production, proponents of the legislation made clear

that the right to farm was a fundamental right. In New

Jersey, the Right to Farm Act was one of several related

pieces of legislation which were developed by the New

Jersey Secretary of Agriculture and agricultural

organizations. The legislative history submitted by

plaintiffs for judicial review of this issue included initial

drafts of the New Jersey Right to Farm Act, which

explicitly interpreted the Constitution to provide New

Jersey citizens with an “inherent right” to farm the land.

In addition to State legislation, many municipalities

adopted similar ordinances recognizing the right to

12

farm. Several of the fourteen Warren County

Municipalities whose ordinances were submitted for

review made specific findings to justify the legislative

enactment:

“The Mayor and Township Committee being

aware and having studied the character,

history and economic, sociological history of

the Township and upon the finding that the

historical economic backbone of the Township

of Franklin has been that of a farming and

agricultural community and in furtherance of

protecting the agricultural rights that have

existed for hundreds of years...”

“The Township Council finds that farming has

existed and has been carried on in the

Township for hundreds of years and long

before the residential development that has

since been prevalent in the Township. ... the

Township Council finds and determines that

farmers must be secure in their ability to earn

a livelihood and utilize customary farming

procedures and techniques.”

“Recognition of Right. The Township of

Blairstown recognizes the industry of farming

is a natural right and that this industry has

been the main source of income and occupation

since the founding of our Republican State.”

Review of the roots of the right to farm demonstrate

that it is a natural right and is among unalienable rights

the Declaration of Independence holds has been

13

endowed by the Creator. The Divine origin of this right

is apparent in the Book of Genesis from the stories of

Adam)’ fall from the Garden of Eden, the judgment and

punishment of Cain, and the covenant with Noah after

the Great Flood.:

“And the Lord God planted a garden eastward

in Eden; and there he put the man whom he

had formed.” Genesis 2:8 “And out of the

ground made the Lord God to grow every tree

that is pleasant to the sight, and good for

food;” Td., 2:9 “And the Lord God took the man

and put him into the Garden of Eden to dress

it and to keep it.” Jd., 2:15 “And unto Adam

he said, because thou hast hearkened unto the

voice of thy wife, and has eaten of the tree, of

which I commanded thee saying “thou shalt

not eat of it”: cursed is the ground for thy

sake; in sorrow shalt thou eat of it all days of

thy life;” /d., 3:17 “Thorns also and thistles

shall it bring forth to thee; and thou shalt eat

the herb of the field,” /d., 3:18 “Therefore the

Lord God sent him forth from the Garden of

Eden to till the ground from once he was

taken.” /d., 3:23.

‘And Abel was a keeper of sheep, but Cain

was a tiller of the ground.” /d., 4:2 “And he

said, what hath thou done? The voice of thy

brother’s blood crieth unto me from the

ground.” /d., 4:10 “And now art thou cursed

from the earth, which had opened her mouth

to receive thy brother’s blood from thy hand;”

Id.,4:11 “When thou tillest tiie ground it shall

14

not henceforth yield unto thee her strength;

a fugitive and a vagabond shall thou be on the

earth.” /d., 4:12.

“And God spake unto Noah saying,

Go forth of the ark, thou and thy wife and thy

sons and thy sons’ wives with thee. Bring forth

with thee every living thing that is with thee

of all flesh, both of fowl and of cattle, and of

every creeping thing that creepeth upon the

earth;” /d., 6:18 “And the Lord smelled a

sweet savour; and the Lord said in his heart,

I will not again curse the ground anymore for

man’s sake; for the imagination of man’s heart

is evil from his youth; neither will | again smite

anymore every living thing as I have done.

While the earth remaineth, seedtime and

harvest, and cold and heat, and summer and

winter, and day and night shall not cease.” /d.,

8:21-8:22 “And Noah began to be an

husbandman and he planted a vineyard.” /d.,

9:20.

From these Biblical roots, the right of man to bring

forth the fruits of the earth sustained him throughout

history. The lowly potato saved Western Europe’s

remaining population from the Black Death. By the

18 Century, English farmers had settled New England

villages. Dutch, German, Swedish, Scotch [Irish and

Iinglish farmers had settled on isolated Middle Colony

farmsteads. English and some French farmers had

settled on plantations in tidewaters and on isolated

Southern Colony farmsteads in Piedmont. The largely

agrarian society of the Founding Fathers would not have

15

existed but for the right to farm. By 1790, 90 percent of

the workforce in the United States were farmers.

Economic Research Service. (2000, September).

A flistory of American Agriculture, 1607-2000.

(ERS-POST-12.) Washington, DC: Author, http:

www.agclassroom.org/gan/tiumeline/farmers.land. htm

Natural rights are recognized by secular theorists

as well. Ayn Rand observed:

“Whether one believes that man is the

product of the Creator or nature, the issue of

man’s origin does not allow for the fact that

he is an entity of a specifie kind — a rational

being — that he cannot function essentially

under coercion, and that rights are a

necessary condition of his particular mode of

survival.” Rand, Ayn, “Man’s Rights”,

Capitalism: The Unknown Ideal, Penguin

Group (USA) Inc., copyright 1946, 1962, 1964,

1965, 1966.

A right-to-farm is such a condition.

In a highly distinguishable case, the Eighth Circuit

Court of Appeals considered whether the right to farm

marijuana was pursuant to a “tribal ordinance” was a

fundamental right. Unzted States v. Plume, 447 F.3d

1067(8" Cir. 2006). In that case the Eighth Circuit

refused to recognize “farming hemp” as a fundamental

right in part because the “[United States] Supreme

Court has not declared ‘farming’ to be a fundamental

right.” /d., at 1075. Petitioners agree with the Eighth

Circuit in that regard, such a decision regarding the

right to farm should be considered by the United States

Supreme Court.

16

Il. THE SUPREME COURT SHOULD DECIDE

WHETHER THE STATE OF NEW JERSEY’S

SXERCISE OF ITS POLICE POWERS

THROUGH THE ENACTMENT OF

ENVIRONMENTAL LEGISLATION IS A TAKING

OF PRIVATE PROPERTY WITHOUT PAYMENT

OF FAIR AND JUST COMPENSATION

PURSUANT TO THE FIFTH AMENDMENT

Specifically at issue is whether the Highlands Act’s

overlapping development standards, regulatory

structure and fictional core, which are intended to

prevent development within a 410,000 acre legislatively

defined “preservation area” (and ultimately in the entire

1,342 square mile legislatively defined Highlands

Region), is a legitimate state purpose for exercise of its

police powers in light of its devastating consequences.

While preservation of undeveloped land in its natural

state can be a public purpose for exercise of the State’s

rights to obtain property pursuant to its power of

eminent. domain with payment of fair market value,

standing alone it is not a legitimate basis for exercise of

the State’s police power.

The Supreme Court in Goldblatt v. Town of

Hempstead, 369 U.S. 590, 594(1962) quoting Lawton v.

Steel, 152 U.S. 133, 136(1894) described the implied

necessity of the police power as follows:

“To justify the State in... interposing its

authority on behalf of the people, it must

appear, first, that the interests of the public. .

.requires such interference; and second, that

17

the means are reasonably necessary for the

accomplishment of the purpose and not

unduly oppressive upon individuals.

It is also long acknowledged that exercise of police power

may result in a diminution of value:

“Government hardly could go on if to some

extent values incident to property could not

be diminished without paying for every such

change in the general law. As long recognized

some values are enjoyed under implied

limitation and must yield to the police power.”

Pennsylvania Coal Company v. Maylan, 260

U.S. 393, 415 (1922).

In Agins v. City of Tiberon, 447 U.S. 255(1980), the

United States Supreme Court established a takings test

in the context of a municipal zoning ordinance

implementing a state land use legislative delegation of

power which enabled the municipality to restrict the

development of open space. It is the standard which

should be applied to the Highlands Act, which has had

its intended affect of preventing any further

development of open space in a 410,000 acre legislatively

defined “preservation area”.

Under the Agins test, a court must find either that

the law affects the taking “(1) if the Ordinance does not

substantially advance a legitimate State interest, or (2)

denies an owner economically viable use of his land.”

447 U.S. at 261.

18

The Court should further review this issue since the

Highlands Act is an example which may be utilized in

the other 49 States to implement eco-socialist property

rights principles. The extensive record below

demonstrate the adverse societal impacts of the Act and

provide the basis for the Court’s determination of this

issue, critical not only to New Jersey residents impacted

by it, but by all citizens who may become subject to

preservation statutes and regulations adopted by other

States exercising their police powers.

Preservation regulations such as the Highlands Act

identify as many environmental resources as possible

and subjectively rank their value. Through the re-

definition of accepted terms, development standards

with arbitrary buffers, prohibition of permits for water

supply and sewer service, and an approval process which

is an economic futility, preservation regulations

cumulatively make development of property a practical!

impossibility. An example is to include intermittent

streams in a definition of open waters so that the Act’s

300’ buffers apply to intermittent streams.

The Highlands Act’s development standards are

contained in N.J.S.A. 13:20-32. These were subsequently

readopted by the NJDEP with an additional standard

which the DEP was directed to promulgate:

“A septic system density standard established

at a level to prevent the degradation of water

quality, or to require the restoration of water

quality, and to protect ecological uses from

individual, secondary, and cumulative impacts,

in consideration of deep aquifer recharge

available for dilution.”

19

The effect of this regulation is to extend the Act’s impact

beyond the average 75% devaluation by limiting

densities to one residential dwelling per 25 acres and

88 acres throughout the preservation zone. This

regulation was challenged by the New Jersey Farm

Bureau, In Re Highlands Water Protection and

Planning Act Rules, N.J.A.C. 7:38-1 et seq., Docket No.

A-984-05T1. Oral argument had been scheduled but has

been extended at the request of the New Jersey

Attorney General while the administration of Governor

Christopher Christie evaluates the regulation.

The other component of a preservation statute is

to impose an extremely expensive and cumbersome

administrative approval process in order for a property

owner to use their property for something other than

legislatively bargained exemptions such as those

contained in N.J.S.A. 13:20-28. The process under the

Highlands Act is a Highlands Preservation Area

Approval (HPAA), N..J.S.A. 13:20-33. In addition to the

extraordinary expenses associated with the process

apparent from a facial review of the statutory

requirements, an HPAA will only be considered if it does

not propose any more than the minimal beneficial use

of the land. This minimal beneficial use is further

impacted by the requirement that an application comply

with all of the developmental standards.

In order for a property owner to pursue a takings

claim, the New Jersey Supreme Court has held the

administrative hardship waiver remedy of the Highlands

Water Protection and Planning Act, N.J.S.A. 13:20-33

must be exhausted before a property owner can assert

a claim that the Act’s restrictions upon development in

20

the preservation area of the Highlands Region has

resulted in a regulatory taking. OF P LLC v. State, 395

N.J. Super. 571(App.Div.2007), 9380 A. 2d 442, Judgment

aff’d by 197 N.J. 412, 963 A. 2d 810(2009). Plaintiffs were

so directed by the Appellate Decision.

Based on the economic futility of the HPAA process

and the additional administrative regulations governing

the DEP’s case by case exercise of discretion to grant

waiver of standards to prevent takings, there is no

remedy for a takings claim by the State of New Jersey

in the State of New Jersey. Pursuant to N.J.A.C. 7:38-

6.8(g¢), the DEP will only consider a request for a waiver

to avoid a taking of property without just compensation

pursuant to N.J.S.A.13:20-33(b)after it has rendered a

decision on the HPAA. Plaintiffs are also required to

demonstrate attempts to sell the development rights

through the TDR program and prove that there were

no reasonable offers to purchase the property based on

the minimal, economically viable use from the project

after requesting an offer from a DEP list of

environmental organizations.

As is apparent from its governing statute,

N.J.S.A. 13:20-13, the Highlands T.D.R. Program is

illusory and will never be a meaningful source of

compensation on the seale of the State’s Highlands

takings. The failure of the Highlands Council to include

areas designated as voluntary receiving zones with a

model TDR in place when it adopted a Regional Master

Plan is the subject of a pending Appellate challenge. /x

Re Adoption of Highlands Regional Master Plan,

Docket No. A-1054-08.

21

Since the Appellate Division concluded that “shall”

means “may” in the context of the failure of an executive

agency to exercise a delegated legislative land use power

within 18 months, there is no possibility that the complex

TDR Program will ever be implemented.

The portions of the Highlands Act annexed as

Appendix G, N.J.S.A. 13:20-13 (TDR Program) Pet. App.

48a — 54a, N.J.S.A. 13:20-28 (Exemptions) Pet. App. 55a

— 6la, N.J.S.A. 13:20-32 (Standards) Pet. App. 6la- 65a

and N.J.S.A. 13:20-33 (Highlands Permitting) Pet. App.

66a - 69a and the DEP Waiver/Takings process (N.J.A.C.

7:38-6.8) Pet. App. 66a -77a provide a blueprint for other

States to prevent development of open space as a police

power without payment of any compensation. Supreme

Court review is required.

22

CONCLUSION

The Petition for Writ of Certiorari should be

granted.

Respectfully submitted,

JOHN M. ZAITER

Counsel of Record

BROSCIOUS, FISHER AND ZAITER, PC.

111 West Washington Avenue

PO. Box 230

Washington, NJ 07882

(908) 689-0992

jmz@bfz-legal.com

STEPHEN H. SHAW

Hurston McNutty, PC.,

256 Columbia Turnpike

Suite 207

Florham Park, NJ 07932

(973) 377-0200

Attorneys for Petitioners