Appendix — Shope v. New Jersey
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APPENDIX A — OPINION OF THE SUPERIOR
COURT OF NEW JERSEY, APPELLATE DIVISION
DECIDED SEPTEMBER 4, 2009
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4591-07T1
COUNTY OF WARREN, a body politic and
corporate of the State of New Jersey,
Plaintiff,
and
DAVID SHOPE, HANK KILUMPP CHARI.ES SHOOP
ROBERT BEST, RUTH BEST, ANDREW DRYSDALF,
LOIS DRYSDALE, JERRY W. KERN, and
SANDRA KERN,
Plaintiffs-Appellants,
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,
Defendants-Respondents.
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Appendix A
Submitted May 6, 2009 - Decided September 4, 2009
Before Judges Rodriguez, Payne and Waugh.
On appeal from Superior Court of New Jersey,
Law Division, Mercer County,
Docket No. L-1021-07.
WAUGH, J.A.D.
The individual plaintiffs appeal the dismissal of their
declaratory judgment action against the State of New
Jersey, the Department of Environmental Protection
(DEP), the Highlands Water Protection and Planning
Council (Council), and the New Jersey Water Supply
Authority (Authority)! (collectively, defendants).
We affirm.
3
According to the complaint, the individual plaintiffs
are New Jersey farmers owning tracts of land, ranging
in size from 18 to 150 acres, within the “preservation
urea” created by the Highlands Water Protection and
Planning Act (Highlands Act), N.J.S.A. 13:20-1 to -35,
which was signed into law in August 2004. Plaintiffs,
along with the County of Warren (Warren County),
alleged that: (1) the Council’s failure to meet the
statutory deadlines established by N.J.S.A. 13:20-8 for
1. The Authority was added as a defendant in the amended
complaint.
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Appendix A
the adoption of a master plan frustrated the legislative
scheme, such that the Council’s decision to extend its
time to act should be declared ultra vires (count one);
(2) the statutory exemptions established by N../.S.A.
13:20-28 improperly placed the entire burden of
development restrictions upon owners of larger parcels
of land, unlawfully treating similarly situated property
owners differently in violation of the equal protection
guarantee inherent in article one, paragraph one of the
New Jersey Constitution (count two); (3) the transfer
of development rights program to be established under
N.J.S.A. 13:20-13 is not a viable funding source for the
acquisition of exceptional natural resource lands to be
protected under the Highlands Act (count three); and
(4) the boundaries of the preservation area set forth in
N.J.S.A. 13:20-7(b) were created without a legitimate
scientific basis, and therefore violate the equal
protection and due process guarantees of the New
Jersey Constitution (count four).
In lieu of an answer, defendants moved to dismiss.
The motion judge ultimately granted the motion and
dismissed the amended complaint, relying in large part.
on our opinion in OF P, L.L.C. v. State, 395 N.J. Super.
571 (App. Div. 2007), aff'd o.b., 197 N.S. 418 (2008), which
upheld the Highlands Act on due process and other
grounds. The judge also dismissed the challenge to the
Council’s action in extending its time to adopt the master
plan for lack of subject matter jurisdiction, finding that
the issue was a final decision of a state administrative
agency subject only to our direct review pursuant to
Rule 2:2-3(a)(2). The judge found that there was no legal
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Appendix A
merit in plaintiffs’ remaining claims. Finally, he denied
plaintiffs’ cross-motion for leave to file a further
amended complaint, which would have added an
additional plaintiff and stated a claim pursuant to 42
U.S.CLA. § 1983.
Plaintiffs filed a motion for reconsideration. That
motion was denied in April 2008, with the resulting
order filed on May 15, 2008. This appeal followed. Warren
County did not file an appeal and has not participated
in the appeal filed by the individual plaintiffs.
Ll.
On appeal, plaintiffs raise the following issues:
POINT ONE: THE NEW JERSEY HIGH-
LANDS WATER PROTECTION AND PLAN-
NING COUNCIL HAS ACTED ULTRA
VIRES BECAUSE IT DID NOT ADOPT A
MASTER PLAN WITHIN THE STATUTORY
MANDATED DEADLINES AND THERE-
FORE THE ACT MUST BE SET ASIDE.
POINT TWO: THE COURT BELOW ERRED
BECAUSE IT DID NOT RECOGNIZE THE
RIGHT TO FARM AS A FUNDAMENTAL
RIGHT, AND THEREFORE APPLIED THE
RATIONAL BASIS STANDARD INSTEAD
OF THE STRICT SCRUTINY STANDARD
IN CONSIDERING PLAINTIFF-FARMERS’
KQUAL PROTECTION RIGHTS.
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Appendix A
POINT THREE: EVEN IF THE COURT
BELOW APPLIED 'THE CORRECT STAN-
DARD TO APPELLATE-PLAINTIFFS’
EQUAL PROTECTION CHALLENGE TO
THE HIGHLANDS ACT, [T SHOULD HAVE
FOUND THAT THE ACT VIOLATES THE
PLAINTIFF-FARMERS’ EQUAL PROTEC-
TION RIGHTS UNDER THE RATIONAL
BASIS TEST BECAUSE THE HIGHLANDS
ACT IS NOT JUSTIFIED BY AN APPROPRI-
ATE SCIENTIFIC BASIS.
POINT FOUR: THE COURT BELOW
ERRED BY NOT FINDING THAT THE
STATUTORY EXEMPTIONS TO THE HIGH-
LANDS ACT VIOLATED THE EQUAL PRO-
TEC'TION RIGHTS OF FARMERS BY IM
POSING THE MOST STRINGENT DEVEL-
OPMENT RESTRICTIONS ON OWNERS
OF LARGE PIECES OF LAND.
POINT FIVE: 'THE COURT BELOW ERRED
BECAUSE IT DID NOT CONSIDER THE
EXPERT REPORTS AND OTHER DOCDU-
MENTS THAT WERE MADE PART OF THIS
RECORD BELOW.
A.
The motion judge dismissed the case on the basis of
the defendants’ Rule 4:6-2 motion, which should
generally be granted “in only the rarest of instances.”
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Appendix A
NCP Litig. Trust v. KPMG LLP, 187 N.J. 353, 365 (2006)
(quoting Printing Mart-Morristown v. Sharp Elecs.
Corp., 116 N..J. 739, 772 (1989)). A motion judge’s review
of acomplaint is to be “undertaken with a generous and
hospitable approach,” zbid. (quoting Printing Mart-
Morristown, supra, 116 N.J. at 746), and “the court
should assume that the nonmovant’s allegations are true
and give that party the benefit of all reasonable
inferences,” zbid. (citing Smith v. SBC Comme’ns Inc.,
178 N.J. 265, 282 (2004)). “If ‘the fundament of a cause
of action may be gleaned even from an obscure
statement of claim,’ then the complaint should survive
this preliminary stage.” /Jbid. (quoting Craig »v.
Suburban Cablevision, Inc., 140 N.J. 623, 626 (1995)).
Where, however, it is clear that the complaint states
no basis for relief and that discovery would not provide
one, dismissal of the complaint is appropriate. Sickles
v. Cabot Corp., 379 N.J. Super 100, 106 (App. Div.),
certif denied, 185 N.J. 297 (2005) (“|A} court must
dismiss the plaintiff’s complaint if it has failed to
articulate a legal basis entitling plaintiff to relief.”);
Holmin v. TRW, Inc., 330 N.J. Super 30, 32 (App. Div.
2000), aff'd o.b., 167 N..J. 205 (2001); Camden County
Energy Recovery Assocs. v. Dep't of Envtl. Prot., 320
N.J. Super. 59, 64 (App. Div. 1999), aff'd o.b., 170 N.J.
246 (2001); Pressler, Current N.J. Court Rules, comment
4.1.1 to R. 4:6-2 (2009). “However, a dismissal is
mandated where the factual allegations are palpably
insufficient to support a claim upon which relief can be
granted.” Rieder v. State, 221 N.J. Super. 547, 552 (App.
Div. 1987).
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Appendix A
If materials “outside the pleadings are considered,
the motion is treated as a motion for summary
judgment.” Hnourato v. New Jersey Bldg. Auth., 182
N.J. Super. 58, 64-65 (App. Div. 1981) (citing R. 4:6-2).
Although the motion judge did not specifically refer to
treating the motion as one for summary judgment, he
acknowledged that both sides submitted extensive
exhibits. In reviewing a motion for summary judgment,
a motion judge must “consider whether the competent
evidential materials presented, when viewed in the light
most favorable to the non-moving party, are sufficient
to permit a rational factfinder to resolve the alleged
disputed issue in favor of the non-moving party.” Brill
v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540
(1995). For present purposes, that standard is
substantially the same as the standard for a Rule 4:6-2
motion.
Because there was no evidentiary hearing, and
hence no judicial factfinding in the Law Division, our
review of the decision is plenary. Marshak v. Weser, 390
N.J. Super. 387, 390 (App. Div. 2007).
LB.
We turn first to the issue of the validity of the
regional master plan. With respect to that issue, there
were clearly no factual disputes, so we are dealing with
a question of law only.
The Highlands Act created the Highlands Council,
N.J.S.A. 13:20-4, which was “delegated responsibility
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Appendix A
for land use planning in the Highlands Region, consisting
of nearly 800,000 acres in eighty-eight municipalities
located in parts of Morris, Sussex, Passaic, Bergen,
Warren, Hunterdon and Somerset Counties, N.J.S.A.
13:20-7(a).” OF P, supra, 395 N.J. Super. at 576. Pursuant
to N.J.S.A. 13:20-8(a), the Council was required, “within
18 months after the date of its first meeting, and after
holding at least five public hearings in various locations
in the Highlands Region and at least one public hearing
in Trenton, [to] prepare and adopt a regional master
plan for the Highlands Region.” The Council held its
initial organizing meeting on December 16, 2004,
consequently it was statutorily required to adopt a
regional master plan by June 2006.
In April 2006, the Council adopted Resolution 2006-
17, setting forth its schedule for adopting the regional
master plan with a target date for adoption in December
2006. The Governor did not veto the Council’s action,
although he had the authority to do so pursuant to
N.J.S.A. 13:20-5()).
On November 30, 2006, the Council adopted its
tesolution 2006-30, authorizing the release of a draft
regional master plan and providing for January 2007
public hearings on the plan. The comment period was
subsequently extended through May 11, 2007.
Consequently, the plan had not yet been adopted when
plaintiffs filed their initial complaint on April 19, 2007.
By Resolution 2008-27, the Council adopted its final
regional master plan on July 17, 2008, and transmitted
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Appendix A
it to the Governor and other State entities for review.
40 N.J.R. 5852(b) (Oct. 6, 2008). The plan became
effective on September 8, 2008. /bzd.
Plaintiffs contend that, because the Council was
required to adopt a regional master plan within the
eighteen-month period following the Council’s initial
meeting, the Council was powerless to act thereafter
without additional authorization from the Legislature
and, consequently, its purported actions extending the
time for adoption were ultra vires and its subsequent
adoption of the regional master plan was void. They cite
no cases to support that result.
Plaintiffs correctly observe that the Highlands Act,
and particularly N.J.S.A. 13:20-8(a), did not grant the
Council specific authority to extend the time for adoption
of the regional master plan. It does not, however, follow
that the Council’s failure to act within the time set hy
the Legislature resulted in the extinguishment of its
authority to adopt such a plan. There is nothing in the
Highlands Act to suggest that the Legislature intended
such a drastic result. We view the eighteen-month period
as directory, rather than as a mandatory deadline that
would invalidate any subsequent adoption of the plan.
See New Jersey State Hotel-Motel Asso. v. Male, 105 N.J.
Super. 174, 177 (App. Div. 1969). See also Syquia v. Bd.
of Educ. of Harpursville Cent. Sch. Dist., 606 N. F.2d
1387, 1390 (N.Y. 1992) (“|CJourts have held in various
contexts that deadlines imposed by statute will be read
as directory rather than mandatory.”). That in one
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Appendix A
instance involving the State Planning Act, N.J.S.A.
52:18A-196 to -207, the Legislature actually extended
such a deadline by statute does not alter the result.
C.
We next address plaintiffs’ equal protection
arguments, which were also not decided on the basis of
disputed facts. As previously noted, we have already
rejected a due process attack on the constitutionality
of the Highlands Act in OF P, supra, 395 N.J. Super. 571.
We start with the well established principles that
statutes are presumed to be constitutional and that
anyone challenging the constitutionality of a statute
bears the burden of establishing its unconstitutionality.
State v. One 1990 Honda Accord, 154 N.J. 373, 377
(1998). In addition, we are obligated to construe
a challenged statute to avoid constitutional defects
if the statute is “‘reasonably susceptible’ of such
construction.” New Jersey Bd. of Higher Educ. v. Bd. of
Dirs. of Shelton College, 90 N.J. 470, 478 (1982) (quoting
State v. Profaci, 56 N.J. 346, 350 (1970)).
In Brown v. City of Newark, 113 N.J. 565, 573-74
(1989), the Supreme Court set forth the parameters for
an equal protection analysis as follows:
As distinguished from standards
governing due process claims, federal equal
protection analysis involves different tiers or
levels of review. If a fundamental right or
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Appendix A
suspect class is involved, the legislative
classification is subject to strict scrutiny, barone
[v. Dept. of Human Servs.], 107 N.S. (355,} 364-
65 [(1987)]; Greenberg v. Kimmelman, 99 NJ.
552, 564 (1985), which requires that a statute
further a compelling state interest and that
there be no less restrictive means of
accomplishing that objective. Barone, supra, 107
N.J. at 365 (citing Graham v. Richardson, 403
U.S. 365, 91S. Ct. 1848, 29 L. Ed. 2d 534 (1971)).
When it regulates a “semi-suspect” class, a
legislative act is examined under “intermediate
scrutiny,” and must be substantially related to
the achievement of an important governmental
objective. Barone, supra, 107 N.J. at 365 (citing
Craig v. Boren, 429 U.S. 190, 97 S. Ct. 451, 50
L. Ed. 2d 397 (1976), reh’g denied, 429 U.S. 1124,
97 S. Ct. 1161, 51 L. Hd. 2d 574 (1977)). If, as
here, the enactment does not affect a suspect
or semi-suspect class and does not attempt to
regulate a fundamental right, it need be only
rationally related to a legitimate state interest
to satisfy federal equal protection requirements.
Ibid. (citing Dandridge v. Williams, 397 U.S.
471, 90S. Ct. 1153, 25 L. Fd. 2d 491, reh’g denied,
398 U.S. 914, 90 S. Ct. 1684, 26 L. Ed. 2d 80
(1970)).
When conducting equal protection
analysis under article I, paragraph 1 of the
New Jersey Constitution, we have rejected a
multi-tiered analysis and employed a
12a
Appendix A
balancing test. Barone, supra, 107 N.J. at 368;
Greenberg, supra, 99 N.J. at 567; Right to
Choose v. Byrne, 91 N.J. 287, 308-09 (1982).
“In striking the balance, we have considered
the nature of the affected right, the extent to
which the governmental restriction intrudes
upon it, and the public need for the
restriction.” Greenberg, supra, 99 N.J. at 567.
Although stated differently, an equal
protection analysis of rights under article I,
paragraph 1 of the New Jersey Constitution,
like an analysis of equal protection and due
process under the fourteenth amendment of
the United States Constitution, may lead to
the same results. /d. at 569.
Plaintiffs assert that the motion judge erred first
by applying the “rational basis” test for equal protection
purposes rather than the “strict scrutiny” test because
he failed to recognize a fundamental right to farm - an
argument raised for the first time in their motion for
reconsideration. However, they argue that, even if the
“rational basis” standard is applicable, the motion judge
should have found that the Highlands Act violated their
right to equal protection.
In rejecting plaintiffs’ argument that farming is a
fundamental right under the New Jersey constitution
such that a strict scrutiny test must be applied, the
motion judge held:
With regard to the arguments concerning
farming being a protected right or a suspect
13a
Appendix A
classification, the Court has given plaintiffs
every opportunity to cite authority that would
demonstrate to this Court that farming as an
economic activity is a protected right or a
suspect classification even though those
arguments could have been raised at the time
of the original motion and were not raised.
Plaintiffs have not been able to offer the
Sourt any demonstration by way of legal
authority that farming activity is such a
protected right or economic or suspect
classification.
Despite the historical background of
farming it’s clear to the Court that the
economic activity of farming does not fall
within those categories.
We agree with that analysis.
Plaintiffs have cited no constitutional provision,
statute, or case that specifically articulates a right to
farm of constitutional dimension or that recognizes the
status of being a farmer or engaging in farming as a
protected, suspect or semi-suspect class. In Gurdner v.
New Jersey Pinelands Commission, 125 N.J. 1938, 220
(1991), although the plaintiff farmer did not argue that
he was a member of “a suspect or semi-suspect class”
or that farming was a right of constitutional dimension,
as the plaintiffs contend here, the Supreme Court held
that the “right at issue|, his right and freedom to use
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Appendix A
and enjoy his farmland property,’|] also is not a
fundamental right because it involves only plaintiff’s
ability to use his property in the most profitable or
economically-valuable manner, not the right to derive
some beneficial use of the property.”
That there was, as demonstrated by documents in
the record, discussion among State officials in the early
1980s about proposing legislation recognizing such a
constitutional right does not support plaintiffs’
argument that there is one, particularly when the
proposed legislative finding was never enacted.
The draft legislation on which plaintiffs rely was
eventually enacted as the Right to Farm Act (RFA),
N.J.S.A. 4:1C-1 to -10.4. The Legislature set forth the
purposes for enactment of the RFA in its legislative
findings, N.J.S.A. 4:1C-2, as follows:
a. The retention of agricultural activities
would serve the best. interest of all citizens of
this State by insuring the numerous social,
economie and environmental benefits which
accrue from one of the largest industries in
the Garden State;
b. Several factors have combined to
create a situation wherein the regulations of
various State agencies and the ordinances of
individual municipalities may unnecessarily
constrain essential farm practices;
2. Gardner, supra, 125 N.J. at 211-12.
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Appendix A
ec. It is necessary to establish a systematic
and continuing effort to examine the effect of
governmental regulation on the agricultural
industry;
d. All State departments and agencies
thereof should encourage the maintenance of
agricultural production and a positive
agricultural business climate;
e. It is the express intention of this act to
establish as the policy of this State the
protection of commercial farm operations from
nuisance action, where recognized methods and
techniques of agricultural production are
applied, while, at the same time, acknowledging
the need to provide a proper balance among the
varied and sometimes conflicting interests of all
lawful activities in New Jersey.
The RFA protects commercial farmers by preempting
municipal and county land use authority over commercial
farms and by shielding them from nuisance suits
brought by neighbors. N.J.S.A. 4:1C-9, -10; Twp. of
Franklin v. Den Hollander, 172 N.J. 147, 149-50 (2002);
Borough of Closter v. Abram Demaree Homestead, Inc.,
365 N.J. Super. 338, 347-48 (App. Div.), certif denied,
179 N.J. 372 (2004). The RFA does not, as was apparently
discussed during the early drafting stages, establish,
recognize, or make any reference to a constitutionally
protected right to farm.
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Appendix A
Interestingly, the Highlands Act itself refers to the
RFA and sets forth the Legislature’s intent to further
its purposes through the Highlands Act itself.
The Legislature further finds and declares
that there are approximately 110,000 acres of
agricultural lands in active production in the
New Jersey Highlands; that these lands are
important resources of the State that should
be preserved; that the agricultural industry
in the region is a vital component of the
economy, welfare, and cultural landscape of
the Garden State; and, that in order to
preserve the agricultural industry in the
region, it is necessary and important to
recognize and reaffirm the goals, purposes,
policies, and provisions of the “Right to Farm
Act,” ... ({N.J.S.A.] 4:1C-1 et seq.) and the
protections afforded to farmers thereby.
[N.S.S.A. 13:20-2.]
The Legislature further specified that the Council should
act to support the agricultural uses of the area:
In preparing and implementing the
regional master plan or any revision thereto,
the council shall ensure that the goals,
purposes, policies, and provisions of, and the
protections afforded to farmers by, the “Right
to Farm Act,” ... ({N.J.S.A.] 4:1C-1 et seq.),
and any rules or regulations adopted pursuant
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Appendix A
thereto, are recognized and not compromised
in any manner.
[|N.J.S.A. 13:20-9(c¢).]
However, there is nothing in the Highlands Act to
support an assertion that there exists a constitutional
right to farm or that farmers are a protected, suspect
or semi-suspect class for constitutional, equal protection
purposes.
Moreover, the Highlands Act included other
provisions that were expressly meant to benefit farmers.
N.J.S.A. 13:20-3 excludes agriculture and horticulture
use and development from the definition of “Major
Highlands development,” which lists types of
development that need a Highlands permit. N.J.S.A.
13:20-29(a)(2) provides a means for farms to increase
their “agricultural impervious cover” under the
supervision of the local soil conservation district.
Included among the Council’s many powers, duties, and
responsibilities, is its direction
[tlo work with the State Agriculture
Development Committee and the Garden
State Preservation Trust to establish
incentives for any landowner in the Highlands
Region seeking to preserve land under the
farmland preservation program that would be
provided in exchange for the landowner
agreeing to permanently restrict the amount
of impervious surface and agricultural
18a
Appendix A
impervious cover on the farm to a maximum
of five percent of the total land area of the
farm.
[N.J.S.A. 13:20-6(w).]
In addition to failing to support their assertion that
farming is a constitutionally protected endeavor or that
farmers are a protected, suspect or semi-suspect class,
the plaintiffs fail to articulate how the Highlands Act
impedes their right or ability to farm or engage in the
business of farming. In their brief, they make the
following assertion in that regard:
In Appellant’s Motion for Reconsideration,
the trial court was requested to address the
equal protection standards associated with
discrimination against farmers as a suspect
classification and the related constitutional
issue, the right to engage in farming as a
livelihood and as a way of life is a fundamental
right protected by the Fifth and Fourteenth
Amendments to the United States Constitution
and Article One of the New Jersey Constitution.
By stripping 75% of the equity from their lands,
the State of New Jersey through the Highlands
Water Protection and Planning Act is depriving
farmers and the individual plaintiffs in the
preservation area of this right.
That is simply not an articulation of how the Highlands
Act prevents plaintiffs from “farming as a livelihood and
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Appendix A
as a way of life.” See also Gardner, supra, 125 N.J. at
210-16. Indeed, as already noted, the Highlands Act
contains provisions that favor rather than disfavor
farming.
Like the Gardner case, the present case involves
only the plaintiffs’ “ability to use [their] property in the
most profitable or economically-valuable manner, not the
right to derive some beneficial use of the property.”
Id. at 220. Additionally, although still in its infancy, a
transfer of development rights program (TDR) exists
for the Highlands Act pursuant to N.J.S.A. 13:20-13.
Consequently, just as the Gardner plaintiff had “at
minimum” a right to Pineland Development Credits,
similarly plaintiffs here have, at minimum, the
opportunity to participate in the Highlands Act’s TDR
program.
The exemption provisions about which plaintiffs
complain may also inure to their benefit, particularly
those provisions allowing construction of a single family
dwelling on each lot, any improvement to a single family
dwelling including an addition, garage, or shed, and
harvesting of forest products in accordance with an
approved forest management plan. N.J.S.A. 18:20-
28(a)(1), (2), (5), (7).
Finally, plaintiffs have the opportunity to seek
waivers under the Highlands Act to the extent they
consider the Act’s impact to constitute a taking of their
property. OF P, supra, 395 N.J. Super. at 584-87.
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Appendix A
To the extent plaintiffs assert a diminution in the
value of their land, which would appear more directly
related to their interest in selling or developing their
land rather than farming it, they raise the issue of an
unconstitutional taking already decided in OF'P, supra,
395 N.J. Super. at 580-85.
Plaintiffs further contend that the Highlands Act
violates their equal protection rights by imposing the
most stringent development restrictions upon owners
of large tracts of land in the preservation area,
apparently assuming that most such owners are farmers.
‘They assert that those landowners have lost seventy-
five percent of the equity in their property, while values
for owners of small, fully developed lots that are eligible
for Highlands Act exemptions under N.J.S.A. 13:20-28
have remained stable or increased. Plaintiffs essentially
argue that because their larger tracts of land experience
a proportionately greater loss of value from the
Highlands Act’s development restrictions, the
Highlands Act has unfairly targeted larger landowners,
such as farmers.
The motion judge, after citing cases referring to a
“rational basis” standard for cases involving “economic
legislation which does not implicate a fundamental right,
a suspect class or a semi-suspect class,” held:
In this case the legislative decision to
allow development on larger parcels of land
only if consistent with the goals and purposes
of the Act is certainly consistent with the
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stated purposes of the Act. That is the
protection of the Highland region and its vital
natural resources from the consequences of
over development.
Additionally the Act permits all owners,
whether owners of large or small parcels, to
seek the same relief under the Act. The Act
also provides all disgruntled owners with
administrative remedies.
Based upon the foregoing the Court finds
that the defendants are entitled to dismissal
of the plaintiffs’ equal protection claims in
Count II of the complaint.
We ayree with his conclusion.
Having determined that there is no constitutionally
protected right to farm and that farming is not a
protected, suspect or semi-suspect classification, we
apply the rational-basis test. Brown, supra, 113 N.J. at
073. We need discern only a “conceivable rational basis.”
Greenberg v. Kimmelman, 99 N.J. 552, 563 (1985).
Absent any form of invidious discrimination or suspect
classification, “all that the Constitution requires is that
the statute be rationally related to the achievement of
a legitimate state objective.” Drew Assocs. of NJ, LP v.
Travisano, 122 N.J. 249, 264 (1991).
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Appendix A
As the Supreme Court held in New Jersey
Restaurant Ass’n, Inc. v. Holderman, 24 N.J. 295, 300
(1957):
The burden of demonstrating that a statute
contravenes the equal protection clause is
extremely formidable, as is attested by the
long trail of failure. In addition to the strong
presumption of constitutionality with which all
organic challenges are approached, one who
assails a statute on this ground must contend
with principles of unusual elasticity. It is easily
stated that the classification (1) must not be
palpably arbitrary or capricious, and (2) must
have a rational basis in relation to the specific
objective of the legislation. But the second
proposition is qualified by limitations which
compound the difficulties of one who assails the
legislative decision. Thus it is not enough to
demonstrate that the legislative objective might
be more fully achieved by another, more
expansive classification, for the Legislature may
recognize degrees of harm and hit the evil where
it is most felt. [((Citations omitted).] The
Legislature may thus limit its action upon a
decision to proceed cautiously, step by step, or
because of practical exigencies, including
udministrative convenience and expense,
[(citations omitted)|, or because of “some
substantial consideration of public policy or
convenience or the service of the general
welfare.” De Monaco v. Renton, 18 N.J. 352, 360
23a
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(1955). Hence, it may “stop short of those cases
in which the harm to the few concerned is
thought less important than the harm to the
public that would ensue if the rule laid down
were made mathematically exact.” Domenion
Hotel, Inc. v. State of Arizona, [249 U.S. 265,
268, 39 S. Ct. 273, 274, 63 L. E'd. 597, 598 (1919)].
See also Drew, supra, 122 N.J. at 264.
In Greenberg, supra, 99 N.J. at 570, the Supreme
Court upheld the constitutionality of N.J.S.A, 52:13D-
17.2, wh.ch banned immediate family of State officials
who resided with the official from employment in casinos.
The Court recognized that the statute treated spouses
differently from partners of State officials who
cohabitated but did not marry. Greenberg, supra, 99 N.J.
at 577. The Court went on to note:
Although it is arguable that the ban
should extend to unmarried persons who live
together, the Legislature may address the
problem one step ata time. Willzamsomn vv.
Lee Optical of Okla., [] 348 U.S. [483,] 489, 75
S. Ct. [461,] 465, 99 L. Fd. [563,] 573 [11 955)).
Proper classification for equal protection
purposes is not a precise science. With the
passage of time and the acquisition of further
experience, the Legislature may want to
reconsider statutory classifications or
restrictions. As long as the classifications do
24a
Appendix A
not discriminate arbitrarily between persons
who are similarly situated, the matter is one
of legislative prerogative.
[Tbid.]
See also Williamson v. Lee Optical of Okla., 348 U.S.
483, 489, 75 S. Ct. 461, 465, 99 L. Ed. 563, 573 (1955)
(“T]he reform may take one step at a time, addressing
‘itself to the phase of the problem which seems most
acute to the legislative mind.”).
The plaintiffs argue that the Highlands Act puts
them in an unequal position relative to individuals who
are arguably “similarly situated,” i.e., owners of
relatively small parcels of land, as well as land not in a
core area to be protected. As was recognized in
Greenberg, however, classifications “are not a precious
science.” The classifications at issue, which are
applicable to owners of relatively large parcels of land
in a core protection area, are clearly and rationally
related to the Legislature’s purpose in protecting the
Highlands from “fragmented and [{] unplanned
development” and “the environmental impacts of sprawl
development.” N.J.S.A. 13:20-2. We will not second-
guess the Legislature’s determination that this is best
done by focusing on larger parcels in what it has found
to be the most sensitive area of the Highlands.
25a
Appendix A
D.
Plaintiffs argue that count four of their complaint
as erroneously dismissed because the Highlands Act’s
establishment of a Highlands Region with a core
preservaticn 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. For 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 express 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.”
As the trial court noted, the OF’P court addressed a
similar argument:
The stated purposes of the Act are not limited
to preserving clean drinking water. The Act’s
purposes also include protection of the “natural
resources of the New Jersey Hightands
against the environmental impacts of sprawl
development|,| [discouragement of] piecemeal.
scattered and inappropriate development, in
order to accommodate local and regional growth
and economic development in an orderly way
.|and]| maintenance of agricultural production
and a positive agricultural business climate[.]}”
26a
Appendix A
N.J.S.A. 13:20-2. Consequently, even if it could
be shown that a limitation of development of
OFP’s property would not serve to preserve
clean drinking water, such a limitation still could
further the other stated purposes of the Act.
Moreover, the Legislature was not required
to consider the condition of each individual]
property within the preservation area in
establishing its boundaries, because such
boundaries are not required to “be formulated
with mathematical perfection.” Toms River
Affiliates v. Dep’t of Envtl. Prot., 140 N.J.
Super. 135, 147-48 (App. Div.), certzf denzed,
71 N.J. 345 (1976).
[OF'P, supra, 395 N.J. Super. at 595-96. ]
The Legislature drew boundaries relating to the Act’s
overall goals for water and natural resource protection
in the Highlands area, and any imprecision in creating
those boundaries is not for the courts to second-guess.
Accordingly, count four of plaintiffs’ complaint was
properly dismissed.
BK
de
We have considered plaintiffs’ remaining issues in
light of the record and the applicable law, and we are
satisfied that none of them is of sufficient merit to
warrant discussion in a written opinion. AR. 2:11-
3(e)(1)(B).
27a
Appendix A
Tf.
In summary, for the reasons set forth above, we
affirm the dismissal of plaintiffs’ declaratory judgment
action as a matter of law, finding that there were no
disputed issues of fact raised that would require an
evidentiary proceeding.
Affirmed.
28a
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, 2008
SUPERIOR COURT OF NEW JERSEY
LAW DIVISION - MERCER COUNTY
DOCKET NO. MER-L-1021-07
Civil Action
COUNTY OF WARREN, DAVID SHOPE, HANK
KLUMP CHARLES SHOOP ROBERT BEST, RUTH
BEST, ANDREW DRYSDALE, LOIS DRYSDALE,
JERRY W. KERN & SANDRA KERN,
Plaintiffs,
VS.
STATE OF NEW JERSEY, DEPARTMENT OF
ENVIRONMENTAL PROTECTION & THE NEW
JERSEY WATER PROTECTION AND PLANNING
COUNCIL,
Defendants.
ORDER DENYING PLAINTIFFS’ MOTION FOR
RECONSIDERATION PURSUANT TO R. 4:49-2
29a
Appendix B
THIS MATTER HAVING BEEN OPENED TO
THE COURT by Plaintiffs County of Warren
represented by Stephen H. Shaw, Esq. (Hueston
McNulty PC) and David Shope, et al represented by
John Zaiter, Esq. seeking reconsideration of the court’s
Order of January 18, 2008 granting Defendants’ motion
and dismissing the Complaint against all defendants with
prejudice for failure to state a claim pursuant to
k- 4:6-2(e), and denying a cross-motion by all Plaintiffs
to amend Count ITI and Count IV of the Complaint to
assert due process and equal protection claims under
the federal constitution and to amend Count V of the
Complaint to assert civil rights violations pursuant to
28 U.S.C. §1983;
And the Court having considered the County’s
letter-brief dated February 15, 2008 alleging the Court
erred by disregarding expert reports and other
documents attached to the Complaint; erred in applying
a rational basis test to the Highlands Act, N.J.S.A. 13:20-
1, et seq., because it implicated a fundamental
constitutional right, 2.e., farming; and erred in denying
plaintiffs permission to assert federal claims alleged to
be prerequisite to petitioning the United States
Supreme Court for review;
And the Court having considered Defendants’ March
7, 2008 letter-brief in opposition to the motion filed by
Barbara L. Conklin D.A.G. on behalf of Anne Milgram,
Attorney General of | !2w Jersey, as well as plaintiff’s
March 10, 2008 letcer and April 4, 2008 leiter-
memorandum and exhibits;
30a
Appendix B
And the Court having heard oral argument on April
11, 2008;
It is on this 15" Day of May, 2008 hereby ORDERED
THAT
1. The Plaintiffs’ motion for reconsideration of the
Court’s January 18, 2008 Order granting Defendants’
motion and dismissing the Complaint for failure to state
a claim is denied for reasons set forth on the record April
11, 2008; and that
2. The Plaintiffs’ motion for reconsideration of the
Court’s January 18, 2008 Order denying plaintiffs’
motion to amend the Complaint is denied for reasons
set forth on the record April 11, 2008.
s/ Paul J. Innes
PAUL J. INNES, J.S.C.
PRESIDING JUDGE, CIVIL DIVISION
Oral Argument Held:
x Yes_ No
Date: April 11, 2008
Motion Opposed:
x Yes __ No
31a
APPENDIX C — EXCERPTED TRANSCRIPT OF
MOTION DATED APRIL 11, 2008
SUPERIOR COURT OF NEW JERSEY
LAW DIVISION, CIVIL PART
MERCER COUNTY, NEW JERSEY
DOCKET NO. MER-L-1021-07
A.D. #
COUNTY OF WARREN, et al.,
Plaintiffs,
Vz
STATE OF NEW JERSEY,
Defendants.
Place: Mercer County Civil
Courthouse
175 South Broad Street
Trenton, NJ 08650
Date: April 11, 2008
TRANSCRIPT
OF
MOTION
BEFORE:
THE HON. PAUL INNES, PJ.Cv.P
32a
Appendix ©
[commencing at page 24]
* oe *
THE COURT: Allright. Back on January 18th this
Court granted the State’s motion to dismiss the
plaintiff’s complaint and entered an order accordingly.
That was a — there’s a challenge brought by the
plaintiffs to the Highlands Water Protection and
Planning Act and the Court of course dismissed that
complaint back on January 18th. And this is plaintiff’s
application for reconsideration of that Court’s prior
order.
Rule 4:49-2 governs motions for reconsideration of
an order of final judgment. Reconsideration is granted
in the Court’s discretion and in the interest of justice.
D’Atria v. D’Atria, 242 NJ Superior Court Reports 392
(Ch, Div. 1990).
The Rule lists three elements that a motion for
reconsideration must satisfy in order to be successful.
First, it must be made within 20 days of entry of the
order of judgment; second, the motion must state the
basis for reconsideration; third, the motion must specify
which cases or facts the Court erred in regards to or
overlooked. Rule 4:49-2.
In addition our case law requires that [25]
s bag ;
reconsideration be utilized only for those cases which
fall into the narrow corridor in which either, one, the
Court has expressed its decision based upon a palpably
33a
Appendix C
incorrect or irrational basis; two, it is obvious that the
Court either did not consider or failed to appreciate the
significance of probative, competent evidence; or, three,
if a litigant wishes to bring new or additional information
to the Court’s attention which it could not have provided
on the first application the Court should in the interest
of justice and in the exercise of its sound discretion
consider the evidence. Cummings v. Bahr, 295 NJ Super.
374 (App. Div. 1996).
A motion should be denied if it is based on unraised
facts known to the movant prior to the entry of the
underlying order. DelVecchio v. Ilemburger, 388 NJ
Superior Court Reports 179 (App. Div. 2006).
With respect to the issues related to this motion the
Court finds that its prior decision was not based upon a
palpably incorrect or irrational basis. In addition some
of the arguments made by plaintiffs were arguments
that could have been raised prior and were not.
Even if the reports proffered by the plaintiffs were
or are a part of the public record and [26] even taking
such reports into consideration with respect to the
arguments made in the original motion to dismiss, the
Court finds that they are insufficient to overcome the
arguments placed upon the record during oral argument
by counsel and the decision and reasoning of the Court
in rendering its decision.
With respect to the motion to amend the complaint,
the Court finds that the parallel Federal constitution —
34a
Appendix ©
constitutional issues raised by plaintiff’s counsel were
properly denied before and that such does not deprive
the plaintiff of the opportunity to raise those issues on
appeal at the Appellate Division.
With regard to the arguments concerning farming
being a protected right or a suspect classification, the
Court has given plaintiffs every opportunity to cite
authority that would demonstrate to this Court that
farming as an economic activity is a protected right ora
suspect classification even though those arguments
could have been raised at the time of the origina] motion
and were not raised.
Plaintiffs have not been able to offer the Court any
demonstration by way of legal authority that farming
activity is such a protected right or economic or suspect
classification.
(27] Despite the historical background of farming
it’s clear to the Court that the economic activity of
farming does not fall within those categories.
Based upon these factors the Court denies the
motion for reconsideration. Thank you all very much.
3Sa
APPENDIX D— ORDER OF THE SUPERIOR COURT
OF NEW JERSEY, LAW DIVISION, MERCER COUNTY
DISMISSING COMPLAINT
DATED AND FILED JANUARY 18, 2008
SUPERIOR COURT OF NEW JERSEY
LAW DIVISION - MERCER COUNTY
DOCKET NO. MER-L-1021-07
COUNTY OF WARREN, DAVID SHOPE, HANK
KLUMP CHARLES SHOOR ROBERT BEST, RUTH
BEST, ANDREW DRYSDALE, LOIS DRYSDALE,
JERRY W. KERN & SANDRA KERN,
Plaintiffs,
VS.
STATE OF NEW JERSEY, DEPARTMENT OF
ENVIRONMENTAL PROTECTION & THE NEW
JERSEY WATER PROTECTION AND
PLANNING COUNCIL,
Defendants.
Civil Action
ORDER DISMISSING COMPLAINT
THIS MATTER HAVING BEEN OPENED TO THE
COURT by Anne Milgram, Attorney General of New
Jersey, attorney for Defendants, by Barbara Conklin,
Deputy Attorney General, seeking an Order dismissing
the Complaint against all Defendants with prejudice for
failure to state a claim pursuant to /?. 4:6-2(e);
36a
Appendix D
And notice having been given to Plaintiffs’ counsel
Stephen H. Shaw, Esq. (Hueston Menulty, PC.) and John
M. Zaiter, Esq. (Broscious, Fisher and Zaiter);
And the Court having considered Defendants’ Brief,
Certification of Counsel and Exhibits, Plaintiffs’ written
opposition; and counsels’ oral argument before the
Court on January 18, 2008;
And good cause having been -10wn;
Itis hereby ORDERED on this 18th Day of January,
2008 that the Complaint in this matter is hereby
dismissed with prejudice for failure to state a claim
pursuant to R&R. 4:6-2(e), for the reasons placed on record
by the Court on January 18, 2008.*
s/ Paul Innes
PAUL INNES, J.S.C.
Oral Argument Held:
x Yes No
Date: 1/18, 2008
Motion Opposed:
x Yes _ No
* And, it is ;urther ordered that Plaintiffs’ Cross
Motion to amend the complaint is denied.
37a
APPENDIX E — EXCERPTED TRANSCRIPT OF
MOTION HEARING DATED JANUARY 18, 2008
SUPERIOR COURT OF NEW JERSEY
LAW DIVISION, CIVIL PART
MERCER COUNTY, NEW JERSEY
DOCKET NO. MER-L-1021-07
A.D. #
COUNTY OF WARREN, et al.,
Plaintiffs,
V.
STATE OF NEW JERSEY, et al.,
Defendants.
Place: Mercer County Courthouse
175 South Broad Street
Trenton, NJ 08650
Date: January 18, 2008
TRANSCRIPT OF MOTION HEARING
BEFORE:
THE HON. PAUL INNS, J.S.C.
38a
Appendix E
(Commencing at page 42]
* * *
THE COURT: Okay. Thank you.
All right. The plaintiffs of the County of Warren and
nine individuals who own property in the preservation
area as delineated in the Highlands Water Protection
and Planning Act, N.J.S.A. 13:20-1 et seq. The
defendants are the State of New Jersey, New Jersey
Water Supply Authority and the New Jersey Water
Protection and Planning Council; the council.
The plaintiffs have brought this action challenging
the Highlands Water Protection and Planning Act on
various federal and state constitutional grounds. The
defendants have brought this motion to dismiss the
complaint pursuant to Rule 4:6-2.
The Highlands Act went into effect on August 10th,
2004. The goals of the Act as set forth in the Act are to
protect the State’s drinking water and to preserve the
State’s natural resources, including clean [43] air, forest
lands, pristine watersheds, habitats for flora and fauna.
Additionally, the Act is intended to protect historic
sites and recreational areas from being fragmented and
consumed by “piecemeal, scattered and inappropriate
development;” N.J.S.A. 13:20-2.
39a
Appendix E
The provisions of the Act include measures for the
protection of the property owners affected by the
regulation. The Act permits property owners in the
preservation area to extract equity from their property
through a variety of mechanisms including exemption
from permitting requirements, DIP waiver, permitting
requirements, land purchased by Green Acres, Farmland
Preservation, or the Garden State Preservation Trust
or sale of transferrable development rights; TDRs.
The Act established boundaries fur the preservation
area and the planning area of the Highlands region. The
Act created the council and authorized the council to
prepare and adopt a regional master plan, RMP for the
Highland region within 18 months from the date of the
council’s first meeting and after a minimum of five public
hearings; N.J.S.A. 13:2-8a.
The council first met on April the 6th, 2006. 4” that
meeting the council voted to change the [44] schedule
for the adoption of the RMP and to adopt a final RMP
by the end of 2006.
The council notified the Governor and the
Legislature of its decision. The Governor never vetoed
the minutes of the meeting of the council. The Act also
authorized the Commissioner of the Department of
Environmental Protection to establish a permitting
program implementing the environmental standards set
forth in the Act and others which the commissioner
deemed necessary to achieve the goals and purposes of
the Act; N.J.S.A. 13:20-30 through 32.
40a
Appendix E
The DEP adopted the Highlands Water Protection
and Planning Act rules effective May 9th, 2005. And
those rules became effective on December the 4th, 2006.
The plaintiffs filed the instant complaint on July 5th,
2007. In Count 1 the plaintiffs challenged the council’s
failure to promulgate an RMP within 18 months of the
first meeting in accordance with the statute, 13:20-8a,
and to implement the TDR Program.
In Count 2 the plaintiffs attack the Act’s formuletion
of exemptions to the permitting requirements on €;ual
protection grounds.
In Count 3 the plaintiffs challenge the failure of the
State to provide funding for the TDR [45] Program. And
in Count 4 of the plaintiff’s complaint that the
boundaries of the preservation area as set forth in the
Act are arbitrary, capricious and unreasonable and
violative of the plaintiffs’ equal protection and due
process rights under the New Jersey Constitution.
Defendants have filed this motion to dismiss
oursuant to Rule 4:6-2. On a motion to dismiss a complaint
pursuant to Rule 4:6-2 the Court’s inquiry is limited to
examining the legal sufficiency of the facts alleged on
the face of the complaint; Printing Mart Morristown v.
Sharp Electronics Corporation 116 N.J. 739 (1989);
Rieder v. Department of Transportation 221 N.J.
Superior Court Reports 547 (App. Div. 1987).
4la
Appendix E
The Court is required to search the complaint in
depth and with liberality to ascertain whether the
fundament of a cause of action may be gleaneu even from
an obscure statement of claim, opportunity being given
to amend if necessary; DiCristofaro v. Laurel Grove
Memorial Park 43 N.J. Superior Court Reports 244
(App. Div. 1957).
The Court is not concerned with the ability of the
plaintiffs to prove the allegations contained in the
complaint at this preliminary stage of litigation.
Therefore, plaintiffs are entitled to every reasonable [46]
inference of fact; /ndependent Dairy Workers Union v.
Milk Drivers Local 680 23 N.J. 85 (1956).
In Count 1 plaintiffs challenge the council’s failure
to adopt an RMP and implement a TDR Program within
18 months of the first meeting in contravention of the
Act.
The council is a state agency and as such its decisions
are review able only by the Appellate Division, Rule 2:2-
3a(2); Infinity Broadcasting Corporation v. New Jersey
Meadowlands Commission 187 N.J. 212 (2006).
Therefore, the court grants the defendant’s motion
to dismiss Count 1 of the complaint.
In Count 2 of the complaint the plaintiffs allege that
the exemptions contained in the Act unfairly placed the
burden of the development restrictions on owners of
larger parcels of land and therefore amount to a violation
of the plaintiff’s equal protection rights.
42a
Appendix E
In New Jersey the courts employ a flexible approach
in considering equal protection arguments; New Jersey
State Bar Association v. State 387 N.J. Superior Court
Reports 24 (App. Div. 2006). The critical issue is whether
an appropriate governmental interest is suitably
furthered by the differential treatment [47] involved.
The courts are to consider the nature of the affected
right, the extent to which the governmental restriction
intrudes upon it and the public need for the restriction;
Barone v. Department of Human Services 107 N.J. 355
(1987).
In the case of economic legislation which does not
implicate a fundamental right, a suspect class or a semi-
suspect class, the courts apply the test of minimal
rational basis scrutiny; Brown v. City of Newark 113 N.J.
565 (1989).
Statutes and legislative classification survive equal
protection claims if supported by “a conceivable rational
basis.” As long as there is a just and reasonable
connection between the purpose of the legislation and
the classification, the legislation is beyond judicial
review; David v. Vesta Company 45 N.J. 301 (1965).
In this case the legislative decision to allow
development on larger parcels of land only if consistent
with the goals and purposes of the Act is certainly
consistent with the stated purposes of the Act; that is,
the protection of the Highlands region and its vital
natural resources from the consequences of over-
43a
Appendix E
development. Additionally, the Act permits all [48]
owners, whether owners of large or small parcels, to
seek the same relief under the Act.
The Act also provides all disgruntled owners with
administrative remedies. Based upon the foregoing the
Court finds that the defendants are entitled to dismissal
of the plaintiffs’ equal protection claim in Count 2 of the
complaint.
In Count 3 plaintiffs allege that the State’s failure
to fund the TDR Program created by the Act is a
violation of plaintiffs’ constitutional rights. The
Appellate Division addressed a similar argument against
the Act in OF P LLC v. State 395 N.J. Superior Court
Reports 571 (App. Div. 2007).
In OF P the Court recognized that the TDR Program
was market driven and uncertain. But, the Court ruled
that even without implementation of a TDR Program
the Act survived the challenge that it was a regulatory
taking of the owner’s property due to the availability of
the hardship waiver.
Likewise here, notwithstanding the lack of funding
for the TDR the hardship waiver application provided
under the Act serves to prevent regulatory takings of
the plaintiffs’ property.
The Court grants defendant’s motion to dismiss
Count 3.
44a
Appendix E
[49] Finally, in Count 4 of the complaint the plaintiffs
challenge the Act’s setting of boundaries as arbitrary,
capricious and unreasonable and therefore in violation
of the plaintiffs’ equal protection and due process rights.
Again, this argument was addressed by the Appellate
Division in OF P
In rejecting the plaintiff/landowner’s challenge to
the inclusion of its property within the Act’s preservation
zone, the Court held that the Legislature was not
required to consider the condition of each individual
property within the preservation area in establishing
its boundaries because the boundaries are not required
to be formulated with mathematical perfection; OF'P at
596; quoting Toms River Affiliates v. DEP 140 N.J.
Superior Court Reports 135 (App. Div.) certif denied
71 N.J. 345 (1976).
The Legislature did in fact base its decision on a
number of sources, including the United States Forest
Service, the Highlands Task Force, New Jersey Water
Supply Authority and Rutgers University.
As stated earlier, the provisions of the Act including
the boundaries of the preservation area are rationally
related to the purposes and goals of the Act.
And for these reasons the Court grants the [50]
defendant’s motion to dismiss Count 4 of the complaint.
Now, as a consequence of having found there’s no
constitutional deprivations here, I’m also going to deny
4Sa
Appendix E
the plaintiffs’ application to amend the complaint. I
understand that the amended complaint would also seek
to raise some federal constitutional challenges, but I
think that the constitutional challenges under the
federal and state constitutions here would be so similar
that a finding by this court that there’s no basis for the
complaint under the state constitutional grounds suffice
for the Court to rule that the application to amend the
complaint should also be denied at this juncture.
Thank you very much. We’re in recess.
5 + 4: +
46a
APPENDIX F — ORDER OF THE SUPREME COURT
OF NEW JERSEY DENYING PETITION FOR
CERTIFICATION DATED JANUARY 12, 2010
AND FILED JANUARY 14, 2010
SUPREME COURT OF NEW JERSEY
C-490 September Term 2009
064879
COUNTY OF WARREN, ETC., ET AL.,
PLAINTIFFS,
AND
DAVID SHOPE, AN ADULT INDIVIDUAL, ET AL.,
PLAINTIFFS-PETITIONERS,
V.
THE STATE OF NEW JERSEY, THE NEW JERSEY
DEPARTMENT OF ENVIRONMENTAL
PROTECTION, ET AL.
DEFENDANTS-RESPONDENTS.
ON PETITION FOR CERTIFICATION
To the Appellate Division, Superior Court:
A petition for certification of the judgment in A-
004591-07 having been submitted to this Court, and the
Court having considered the same:
47a
Appendix fk
tis ORDERED that the petition for certification i
denied, with costs.
WITNESS, the Honorable Virginia A. Long,
Presiding Justice, at Trenton, this 12th day of January,
2010.
s/ [illegible]
CLERK OF THE SUPREME COURT
48a
APPENDIX G — RELEVANT STATUTES
TITLE 13.) CONSERVATION AND DEVELOPMENT—
PARKS AND RESERVATIONS
13:20-13 Use of regional master plan elements for
TDR program.
13. a. The council shall use the regional master plan
elements prepared pursuant to sections 11 and 12 of
this act, including the resource assessment and the
smart growth component, to establish a transfer of
development rights program for the Highlands Region
that furthers the goals of the regional master plan. The
transfer of development rights program shall be
consistent with the “State Transfer of Development
Rights Act,” PL.2004, ¢.2 (C.40:55D-137 et seq.) or any
upplicable transfer of development rights program
created otherwise by law, except as otherwise provided
in this section.
b. In consultation with municipal,’county, and State
entities, the council shall, within 18 months after the
date of enactment of this act, and from time to time
thereafter as may be appropriate, identify areas within
the preservation area that are appropriate as sending
zones pursuant to PL.2004, ¢.2 (C.40:55D-137 et seq.).
c. In consultation with municipal, county, and State
entities, the council shall, within 18 months after the
date of enactment of this act, and from time to time
thereafter as may be appropriate, identify areas within
the planning area that are appropriate for development
as voluntary receiving zones pursuant to PL.2004, c.2
49a
Appendix G
(C.40:55D-137 et seq.) considering the information
gathered pursuant to sections 11 and 12 of this act,
including but not limited to the information gathered
on the transfer of development rights pursuant to
paragraph (6) of subsection a. of section 11 of this act.
For the purposes of the council establishing a transfer
of development rights program prior to the preparation
of the initial regional master plan, the council in
identifying areas appropriate for development as
voluntary receiving zones shall consider such
information as may be gathered pursuant to sections
11 and 12 of this act and as may be available at the time,
but the council need not delay the creation of the
transfer of development rights program until the initial
regional master plan has been prepared. The council
shall set a goal of identifying areas within the planning
urea that are appropriate for development as voluntary
receiving zones that, combined together, constitute four
percent of the Jand area of the planning area, to the
extent that the goal is compatible with the amount and
type of human development and activity that would not
compromise the integrity of the ecosystem of the
planning area.
d. The council shall work with municipalities and the
State Planning Commission to identify centers,
designated by the State Planning Commission, as
voluntary receiving zones for the transfer of
development rights program.
e. In consultation with municipal, county, and State
entities, the council shall assist municipalities or counties
in analyzing voluntary receiving zone capacity.
50a
Appendix G
f. In consultation with municipal, county, and State
entities, the council shall work with municipalities
outside of the preservation area to assist these
municipalities in developing ordinances necessary to
implement the transfer of development rights. The
council shall also establish advisory or model ordinances
and other information for this purpose.
The counci. shall make assistance available to
municipalities that desire to create additional sending
zones on any lands within their boundaries which lie
within the planning area and are designated for
conservation in the regional master plan.
g. Notwithstanding the provisions of PL.2004, ¢.2
(C.40:551D-137 et seq.) to the contrary, the council shall
perform the real estate analysis for the Highlands
Region that is required to be performed by a
municipality prior to the adoption or amendment of any
development transfer ordinance pursuant to PL.2004,
C.2.
h. (1) The council shall set the initial value of a
development right. The Office of Green Acres in the
Department of Environmental Protection and the State
Agriculture Development Committee shall previde
support and technical assistance to the council in the
operation of the transfer of development rights
program. The council shall establish the initial value of
a development right considering the Department of
environmental Protection rules and regulations in effect
the day before the date of enactment of this act.
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Appendix G
, The council shall give priority consideration for
inclusion in a transfer of development rights program
any lands that comprise a major Highlands development
that would have qualified for an exemption pursuant to
paragraph (5) of subsection a. of section 30 of this act
but for the lack of a necessary State permit as specified
in subparagraph (b) or (c), as appropriate, of paragraph
(3) of subsection a. of section 30 of this act, and yor which
an application for such a permit had been submitted to
the Department of Environmental Protection and
deemed by the department to be complete for review
on or before March 29, 2004.
i. (1) The council may use the State Transfer of
Development Rights Bank established pursuant to
section 3 of P1LL.1993, ¢.339 (C.4:1C-51) for the purposes
of facilitating the transfer of development potential in
accordance with this section and the regional master
plan. The council may also establish a development
transfer bank for such purposes.
(2) At the request of the council, the Department
of Banking and Insurance, the State Transfer of
Developments Right Bank, the State Agriculture
Development Committee, and the Pinelands
Development Credit Bank shall provide technical
assistance to the council in establishing and operating
a development transfer bank as authorized pursuant to
paragraph (1) of this subsection.
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Appendix G
(3) Any bank established by the council shall
operate in accordance with provisions of general law
authorizing the creation of development transfer banks
by municipalities and counties.
j. The Office of Smart Growth shall review and
coordinate State infrastructure capital investment,
community development and financial assistance in the
planning area in furtherance of the regional master plan.
Prior to the council establishing its transfer of
development rights program, the Office of Smart Growth
shall establish a transfer of development rights pilot
program that includes Highlands Region municipalities.
k. Any municipality in the planning area whose
municipal master plan and development regulations
have been approved by the council to be in conformance
with the regional master plan in accordance with section
14 or 15 of this act, and that amends its development
regulations to accommodate voluntary receiving zones
within its boundaries which are identified pursuant to
subsection ec. of this section and which provide for a
minimum residential density of five dwelling units per
acre, shall, for those receiving zones, be: eligible for an
enhanced planning grant from the council of up to
$250,000; eligible for a grant to reimburse the reasonable
costs of amending the municipal development
regulations; authorized to impose impact fees in
accordance with subsection m. of this section; entitled
to legal representation pursuant to section 22 of this
act; accorded priority status in the Highlands Region
for any State capital or infrastructure programs; and
53a
Appendix G
eligible for any other appropriate assistance, incentives,
or benefits provided pursuant to section 18 of this act.
l. Any municipality located outside of the Highlands
Region in any county that has a municipality in the
Highlands Region that has received plan endorsement
by the State Planning Commission pursuant to the
“State Planning Act,” PL.1985, c.398 (C.52:18A-196 et
al.), that establishes a receiving zone which provides for
a minimum residential density of five dwelling units per
acre for the transfer of development rights from a
sending zone in the Highlands Region, and that accepts
that transfer of development rights shall, for those
receiving zones, be eligible for the same grants,
authority, and other assistance, incentives, and benefits
as provided to municipalities in the planning area
pursuant to subsection k. of this section except for legal
representation as provided pursuant to section 22 of this
act and priority status in the Highlands Region for any
State capital or infrastructure programs.
m. (1) A munic'pality that is authorized to impose
impact fees under scbsection k. of this section shall
exercise that authority by ordinance.
(2) Any impact fee ordinance adopted pursuant to
this subsection shall include detailed standards and
guidelines regarding: (a) the definition of a service unit,
including specific measures of consumption, use,
generation or discharge attributable to particular land
uses, densities and characteristics of development; and
(b) the specific purposes for which the impact fee
revenues may he expended.
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Appendix G
(3) An impact fee ordinance shall also include
a delineation of service areas for each capital
improvement whose upgrading or expansion is to be
funded out of impact fee revenues, a fee schedule which
clearly sets forth the amount of the fee to be charged
for each service unit, and a payment schedule.
(4) An impact fee may be imposed by a municipality
pursuant to this subsection in order to generate revenue
for funding or recouping the costs of new capital
improvements or facility expansions necessitated by new
development, to be paid by the developer as defined
pursuant to section 3.1 of PL.1975, ¢.291 (C.40:55D-4).
Improvements and expansions for which an impact fee
is to be imposed shall bear a reasonable relationship to
needs created by the new development, but in no case
shall an impact fee assessed pursuant to this subsection
exceed $15,000 per dwelling unit unless and until impact
fees are otherwise established by law at which time the
impact fee shall be 200% of the calculated impact fee.
(5) No impact fee shall be assessed pursuant to this
subsection against any low or moderate income housing
unit within an inclusionary development as defined
under P1.1985, ¢.222 (C.52:27D-301 et al.).
No impact fee authorized under this subsection shall
include a contribution for any transportation
improvement necessitated by a new development in a
county which is covered by a transportation development
district created pursuant to the “New Jersey
Transportation Development District Act of 1989,”
P-L.1989, ¢.100 (C.27:1C-1 et al.).
55a
Appendix G
13:20-28 Exemptions.
30. a. The following are exempt from the provisions
of this act, the regional master plan, any rules
or regulations adopted by the Department of
Environmental Protection pursuant to this act, or any
amendments to a master plan, development regulations,
or other regulations adopted by a local government unit
to specifically conform them with the regional master
plan:
(1) the construction of a single family dwelling, for
an individual’s own use or the use of an immediate family
member, on a lot owned by the individual on the date of
enactment of this act or on a lot for which the individual
has on or before May 17, 2004 entered into a binding
contract of saie to purchase that lot;
(2) the construction of a single family dwelling ona
lot in existence on the date of enactment of this act,
provided that the construction does not result in the
ultimate disturbance of one acre or more of land or a
cumulative increase in impervious surface by one-
quarter acre or more;
(3) a major Highlands development that received
on or before March 29, 2004:
(a) one of the following approvals pursuant to the
“Municipal Land Use Law,” PL.1975, ¢.291 (C.40:55D-1
et seq.):
56a
Appendix G
(i) preliminary or final site plan approval;
(ii) final municipal building or construction permit;
(iii) minor subdivision approval where no
subsequent site plan approval is required;
(iv) final subdivision approval where no subsequent
site plan approval is required; or
(v) preliminary subdivision approval where no
subsequent site plan approval is required; and
(b) at least one of the following permits from the
Department of Environmental Protection, if applicable
to the proposed major Highlands development:
(i) a permit or certification pursuant to the “Water
Supply Management Act,” PL.1981, ¢.262 (C.58:1A-1 et
seq.);
(ii) a water extension permit or other approval or
authorization pursuant to the “Safe Drinking Water
Act,” PL.1977, ¢.224 (C.58:12A-1 et seq.);
(iii) a certification or other approval or
authorizs*ion issued pursuant to the “The Realty
Improvement Sewerage and Facilities Act (1954),”
PL.1954, e.199 (C.58:11-23 et seq.); or
S7a
Appendix G
(iv) a treatment works approval pursuant to the
“Water Pollution Control Act,” PL.1977, ¢.74 (C.58:10A-
1 et seq.); or
(c) one of the following permits from the
Department of Environmental Protection, if applicable
to the proposed major Highlands development, and if
the proposed major Highlands development does not
require one of the permits listed in subsubparagraphs
(i) through (iv) of subparagraph (b) of this paragraph:
(i) a permit or other approval or authorization
issued pursuant to the “I'reshwater Wetlands Protection
Act,” PL.1987, ¢.156 (C.13:9B-1 et seq.); or
(11) a permit or other approval or authorization
issued pursuant to the “Flood Hazard Area Control Act,”
PL.1962, c.19 (C.58:16A-50 et seq.).
The exemption provided in this paragraph shall
apply only to the land area and the scope of the major
Highlands development addressed by the qualifying
approvals pursuant to subparagraphs (a) and (b), or (c)
if applicable, of this paragraph, shall expire if any of
those qualifying approvals expire, and shall expire if
construction beyond site preparation does not
commence within three years after the date of enactment
of this act;
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Appendix G
(4) the reconstruction of any building or structure
for any reason within 125% of the footprint of the lawfully
existing impervious surfaces on the site, provided that
the reconstruction does not increase the lawfully existing
impervious surface by one-quarter acre or more. This
exemption shall not apply to the reconstruction of any
agricultural or horticultural building or structure for a
non-agricultural or non-horticultural use;
(5) any improvement to a single family dwelling in
existence on the date of enactment of this act, including
but not limited to an addition, garage, shed, driveway,
porch, deck, patio, swimming pool, or septic system;
(6) any improvement, for non-residential purposes,
to a place of worship owned by a nonprofit entity, society
or association, or association organized primarily for
religious purposes, or a public or private school, or a
hospital, in existence on the date of enactment of this
act, including but not limited to new structures, an
addition to an existing building or structure, a site
improvement, or a sanitary facility;
(7) an activity conducted in accordance with an
approved woodland management plan pursuant to
section 3 of PL.1964, ¢c.48 (C.54:4-23.3) or a forest
stewardship plan approved pursuant to section 3 of
PL.2009, ¢.256 (C.13:1L-31), or the normal harvesting
of forest products in accordance with a forest
management plan or forest stewardship plan approved
by the State Forester;
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Appendix G
(8) the construction or extension of trails with non-
impervious surfaces on publicly owned lands or on
privately owned lands where a conservation or
recreational use easement has been established;
(9) the routine maintenance and operations,
rehabilitation, preservation, reconstruction, or repair
of transportation or infrastructure systems by a State
entity or local government unit, provided that the
activity is consistent with the goals and purposes of this
act and does not result in the construction of any new
through-capacity travel lanes;
(10) the construction of transportation safety
projects and bicycle and pedestrian facilities by a State
entity or local government unit, provided that the
activity does not result in the construction of any new
through-capacity travel lanes;
(11) the routine maintenance and operations,
rehabilitation, preservation, reconstruction, repair, or
upgrade of public utility lines, rights of way, or systems,
by a public utility, provided that the activity is consistent
with the goals and purposes of this act;
(12) the reactivation of rail lines and rail beds
existing on the date of enactment of this act;
(13) the construction of a public infrastructure
project approved by public referendum prior to January
1, 2005 or a capital project approved by public
referendum prior to January 1, 2005;
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Appendix G
(14) the mining, quarrying, or production of ready
mix concrete, bituminous concrete, or Class B recycling
materials occurring or which are permitted to occur on
any mine, mine site, or construction materials facility
existing on June 7, 2004;
(15) the remediation of any contaminated site
pursuant to PL.1993, ¢.189 (C.58:10B-1 et seq.);
(16) any lands of a federal military installation
existing on the date of enactment of this act that lie
within the Highlands Region; and
(17) amajor Highlands development located within
an area designated as Planning Area 1 (Metropolitan),
or Planning Area 2 (Suburban), as designated pursuant
to PL.1985, ¢.398 (C.52:18A-196 et seq.) as of March 29,
2004, that on or before March 29, 2004 has been the
subject of a settlement agreement and stipulation of
dismissal filed in the Superior Court, or a builder's
remedy issued by the Superior Court, to satisfy the
constitutional requirement to provide for the fulfillment
of the fair share obligation of the municipality in which
the development is located. The exemption provided
pursuant to this paragraph shall expire if construction
beyond site preparation does not commence within three
years after receiving all final approvals required
pursuant to the “Municipal Land Use Law,” PL.1975,
¢.291 (C.40:55D-1 et seq.).
b. The exemptions provided in subsection a. of this
section shall not be construed to alter or obviate the
6la
Appendix G
requirements of any other applicable State or local laws,
rules, regulations, development regulations, or
ordinances.
¢. Nothing in this act shall be construed to alter the
funding allocation formulas established pursuant to the
“Garden State Preservation Trust Act,” PL.1999, ¢.152
(C.13:8C-1 et seq.).
d. Nothing in this act shall be construed to repeal,
reduce, or otherwise modify the obligation of counties,
municipalities, and other municipal and public agencies
of the State to pay property taxes on lands used for the
purpose and for the protection of a public water supply,
without regard to any buildings or other improvements
thereon, pursuant to R.S.54:4-3.3.
13:20-32 Rules, regulations, standards.
34. The Department of Environmental Protection
shall prepare rules and regulations establishing the
environmental standards for the preservation area upon
Which the regional master plan adopted by the council
and the Highlands permitting review program
administered by the department pursuant to this act
shall be based. These rules and regulations shall provide
for at least the following:
a. a prohibition on major Highlands development
within 300 feet of any Highlands open waters, and the
establishment of a 300-foot buffer adjacent to all
Highlands open waters; provided, however, that this
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Appendix G
buffer shall not extend into the planning area. For the
purposes of this subsection, major Highlands
development does not include linear development tor
infrastructure, utilities, and the rights-of-way therefor,
provided that there is no other feasible alternative, as
determined by the department, for the linear
development outside of the buffer. Structures or land
uses in the buffer existing on the date of enactment of
‘his acl may remain, provided that the area of
tisturbance shall not be increased. This subsection shall
not be construed to limit any authority of the
lepartment to establish buffers of any size or any other
protections for category one waters designated by the
department pursuant to the “Water Pollution Control
Act.” PL.1977, ¢.74 (C.58:10A-1 et seq.), or any other
law, or any rule or regulation adopted pursuant thereto,
for major Highlands development or for other
development that does not qualify as major Highlands
development;
bh. measures to ensure that existing water quality
shall be maintained, restored, or enhanced, as required
pursuant to the “Water Pollution Control Act,” PL.1977,
¢.74(C.58:10A-1 et seq.) or the “Water Quality Planning
Act.” PL.1977, ¢.75 (C.58:11A-1 et seq.), or any rule or
regulation adopted pursuant thereto, in all Highlands
open waters and waters of the Highlands, and to provide
that any new or expanded point source discharge, except
discharges from water supply facilities, shall not degrade
existing water quality. In the case of water supply
facilities, all reasonable measures shall be taken to
eliminate or minimize water quality impacts;
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Appendix G
c. notwithstanding the provisions of section 23 of
PL.1987, ¢.156 (C.13:9B-23), or any rule or regulation
adopted pursuant thereto, to the contrary, the criteria
for the type of activity or activities eligible for the use
of a general permit for any portion of an activity located
within a freshwater wetland or freshwater wetland
transition area located in the preservation area,
provided that these criteria are at least as protective as
those provided in section 23 of RL.1987, c.156 (C.13:;9B-
23);
d. notwithstanding the provisions of subsection a.
of section 5 of PL.1981, ¢.262 (C.58:1A-5), or any rule or
regulation adopted pursuant thereto, to the contrary, a
system for the regulation of any diversion of more than
50,000 gallons per day, and multiple diversions by the
same or related entities for the same or related projects
or developments of more than 50,000 gallons per day, of
waters of the Highlands pursuant to the “Water Supply
Management Act,” PL.1981, ¢.262 (C.58:1A-1 et seq.),
and any permit issued pursuant thereto shall be based
on consideration of individual and cumulative impacts
of multiple diversions, maintenance of stream ase flows,
minimization of depletive use, maintenance of existing
water quality, and protection of ecological uses. Any new
or increased diversion for nonpotable purposes that is
more than 50% consumptive shall require an equivalent
reduction in water demand within the same subdrainage
area through such means as groundwater recharge of
stormwater or reuse. Existing unused allocation or
allocations used for nonpotable purposes may be
revoked by the department where measures to the
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Appendix G
maximum extent practicable are not implemented to
reduce demand. Al} new or increased diversions shall
be required to implement water conservation measures
to the maximum extent practicable;
e. 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;
f. a zero net fill requirement for flood hazard areas
pursuant to the “Flood Hazard Area Control Act,”
P1..1962, ¢.19 (C.58:16A-50 et seq.);
ge. the antidegradation provisions of the surface
water quality standards and the stormwater regulations
applicable to category one waters to be applied to
Highlands open waters;
h. a prohibition on impervious surfaces of greater
than three percent of the land area, except that
Highlands open waters shall not be included in the
calculation of that land area;
i. notwithstanding the provisions of the “Safe
Drinking Water Act,” PL.1977, ¢.224 (C.58:12A-1 et seq.),
or any rule or regulation adopted pursuant thereto, to
the contrary, a limitation or prohibition on the
construction of new public water systems or the
extension of existing public water systems to serve
65a
Appendix G
development in the preservation area, except in the case
of a demonstrated need to protect public health and
safety;
j. a prohibition on development, except linear
development for infrastructure, utilities, and the rights-
of-way therefor, provided that no other feasible
alternative, as determined by the department, exists for
the linear development, on steep slopes in the
preservation area with a grade of 20% or greater, and
standards for development on slopes in the preservation
area exhibiting a grade of between 10% and 20%.
The standards shall assure that developments on
slopes exhibiting a grade of between 10% and 20%
preserve and protect steep slopes from the negative
consequences of development on the site and the
cumulative impact in the Highlands Region. The
standards shall be developed to prevent soil erosion and
sedimentation, protect water quality, prevent
stormwater runoff, protect threatened and endangered
animal and plant species sites and designated habitats,
provide for minimal practicable degradation of unique
or irreplaceable land types, historical or archeological
areas, and existing scenic attributes at the site and
within the surrounding area, protect upland forest, and
restrict impervious surface; and shall take into
consideration differing soil types, soil erodability,
topography, hydrology, geology, and vegetation types;
and
k. a prohibition on development that disturbs
upland forested areas, in order to prevent soil erosion
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Appendix G
and sedimentation, protect water quality, prevent
stormwater runoff, and protect threatened and
endangered animal and plant species sites and
designated habitats; and standards to protect upland
forested areas that require all appropriate measures be
taken to avoid impacts or disturbance to upland forested
areas, and where avoidance is not possible that all
appropriate measures have been taken to minimize and
mitigate impacts to upland forested areas and to prevent
soil erosion and sedimentation, protect water quality,
prevent stormwater runoff, and protect threatened and
endangered animal and plant species sites and
designated habitats.
13:20-33 Highlands permitting review program.
35. a. The Department of Environmental
Protection shall establish a Highlands permitting review
program to provide for the coordinated review of any
major Highlands development in the preservation area
based upon the rules and regulations adopted by the
department pursuant to sections 33 and 34 of this act.
The Highlands permitting review program established
pursuant to this section shall consolidate the related
aspects of other regulatory programs which may
include, but need not be limited to, the “Freshwater
Wetlands Protection Act,” PL.1987, ¢.156 (C.13:9B-1 et
seq.), “The Endangered and Nongame Species
Conservation Act,” PL.1973, ¢.809 (C.23:2A-1 et seq.),
the “Water Supply Management Act,” PL.1981, ¢.262
(C.58:1A-1 et seq.), the “Water Pollution Control Act,”
P.L.1977, ¢.74 (C.58:10A-1 et seq.), “The Realty
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Appendix G
Improvement Sewerage and Facilities Act (1954),”
PL.1954, ¢c.199 (C.58:11-23 et seq.), the “Water Quality
Planning Act,” PL.1977, ¢.75 (C.58:11A-! et seq.), the
“Safe Drinking Water Act,” PL.1977, ¢.224 (C.58:12A-1
et seq.), the “Flood Hazard Area Control Act,” PL.1962,
c.19(C.58:.16A-50 et seq.), and any rules and regulations
adopted pursuant thereto, and the rules and regulations
adopted pursuant to sections 33 and 34 of this act. For
the purposes of this section, the provisions of RL.1975,
c.232 (C.13:1D-29 et seq.) shall not apply to an
application for a permit pursuant to the “Flood Hazard
Area Control Act,” PL.1962, ¢.19 (C.58:16A-50 et seq.).
b. The Highlands permitting review program
established pursuant to this section shall include:
(1) a provision that may allow for a waiver of any
provision of a Highlands permitting review on a case-
by-case basis if determined to be necessary by the
department in order to protect public health and safety;
(2) a provision that may allow for a waiver of any
provision of a Highlands permitting review on a case-
by-case basis for redevelopment in certain previously
developed areas in the preservation area identified by
the council pursuant to subsection b. of section 9 or
subparagraph (h) of paragraph (6) of subsection a. of
section 11 of this act; and
(3) a provision that may allow for a waiver of any
provision of the Highlands permitting review on a case-
by-case basis in order to avoid the taking of property
without just compensation.
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Appendix G
The grant of a waiver pursuant to this subsection
by the department shall be conditioned upon the
department’s determination that the major Highlands
development meets the requirements prescribed for a
finding as listed in subsection a. of section 36 of this act
to the maximum extent possible.
c. The waiver provisions of subsection b. of this
section are limited to the provisions of the rules and
regulations adopted pursuant to section 34 of this act,
and shall not limit the department’s jurisdiction or
authority pursuant to any other provision of law, or any
rule or regulation adopted pursuant thereto, that is
incorporated into the Highlands permitting review
program.
d. The Highlands permitting review program
established pursuant to this section may provide for the
issuance of a general permit, provided that the
department adopts rules and regulations which identify
the activities subject to general permit review and
establish the criteria for the approval or disapproval of
a general permit.
e. Any person proposing to construct or cause to
be constructed, or to undertake or cause to be
undertaken, as the case may be, a major Highlands
development in the preservation area shall file an
application for a Highlands permitting review with the
department, on forms and in a manner prescribed by
the department.
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Appendix G
f. The department shall, in accordance with a fee
schedule adopted as a rule or regulation, establish and
charge reasonable fees. necessary to meet the
administrative costs of the department associated with
the processing, review, and enforcement of any
application for a Highlands permitting review. These
fees shall be deposited in the “Environmental Services
Fund,” established pursuant to section 5 of PL.1975,
¢.232 (C.13:1D-33), and kept separate and apart from
all other State receipts and appropriated only as
provided herein. There shall be appropriated annually
to the department revenue from that fund sufficient to
defray in full the costs incurred in the processing, review,
and enforcement of applications for Highlands
permitting reviews.
N.J.A.C. § 7:38-6.8 Waiver to avoid the taking of
property without just compensation
(a) In accordance with N.J.S.A. 13:20-33b, the
Department may, on a case by case basis, waive any
requirement for an HPAA if necessary to avoid the
taking of property without just compensation.
(b) A waiver under this section shall apply only after
the Department determines that the proposed
development does not meet all the requirements in this
chapter as strictly applied, all the applicant’s
administrative and legal challenges to that
determination as set forth in (b)1 below have concluded,
and the HPAA applicant meets the requirements in
(g¢) below.
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Appendix G
1. An applicant may challenge any Department
HPAA decision under the rules as strictly applied if the
applicant disputes the Department’s findings of facts
or application of the rules to those facts. Following an
administrative hearing, the Commissioner shall issue a
Final Decision approving or denying a HPAA under the
rules as strictly applied. The applicant may appeal a
Final Decision which denies the HPAA or approves it
with conditions to the Appellate Division of Superior
Court. If a court finds that the applicant is not entitled
to an HPAA under the rules as strictly applied, the
Department shall review and decide the applicant’s
request for a waiver to avoid a taking of property. The
applicant may challenge the Department’s final agency
action on the waiver application after any hearing in the
OAL.
(c) In determining whether to waive any
requirement of this chapter to avoid an alleged taking
of property without just compensation, the Department
shall consider:
1. The investments the property owner made in the
property as a whole on which regulated activities are
proposed and whether the investments were reasonable,
in accordance with (d) below;
2. The minimum viable and economically beneficial
use of the property as a whole, in accordance with (e)
below; and
Tila
Appendix G
‘
3. The environmental impacts of the minimum viable
and economically beneficial use for the property as a
whole, and the consistency of these impacts with the
goals of the Highlands Act, in accordance with (f) below.
(d) In determining whether the property owner’s
investments in the property as a whole were reasonable,
the Department shall consider:
1. Conditions at the time of the investment. That
is, the investment shall have been made in pursuit of
development that would likely have been legally and
practically possible on the property as a whole,
considering all constraints existing and reasonably
ascertainable at the time of the investment. For example,
if a property owner bought property containing
freshwater wetlands regulated under N.J.A.C. 7:7A, it
would not be reasonable for that owner to assume that
the property could be developed without constraints.
In determining conditions at the time of the investment,
the Department shall consider, at a minimum, the
following:
i. Existing zoning and other’ regulatory
requirements and conditions;
ii. Historic landmarks or other historie or cultural
resources on the property that would be adversely
impacted by the proposed development;
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Appendix G
iii. The likelihood the proposed development could
obtain other necessary approvals such as wastewater
treatment approvals or approvals from other local, State
or federal agencies;
iv. Terrain and other site conditions, and/or
environmental constraints, which could affect the
potential uses of the property as a whole;
v. The existence of, or likelihood of obtaining,
services to the property such as sewers or electricity;
and
vi. Compatibility with and adverse effects upon land
uses located on adjacent properties and in the area
where the property is located;
2. Costs actually incurred by the property owner in
pursuit of development of the property as a whole that
were reasonable in amount, related to the development,
and unavoidable. For example, if the property owner
began construction without the necessary permits or
approvals, the owner’s costs defending a prosecution
or enforcement action for this violation or the payment
of fines and penalties would not constitute reasonable
investment costs; and
3. Any other factor affecting the property or the
property owner, which is related to the reasonableness
of the investments claimed and/or the proposed use of
the property.
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Appendix G
(e) In assessing the minimum beneficial
economically viable use of the property as a whole, a
use shall not be excluded from consideration merely
because it does not result in a profit, reduces the
marketability of the property as a whole, or does not
allow the property owner to recoup all aT ree
identified under (c) above.
(f) In determining the environmental impacts of the
minimum beneficial economically viable use of the
property as a whole and the consistency of those impacts
with the goals of the Highlands Act under (c) above, the
Department shall evaluate whether the use would, to
the maximum extent possible:
1. Have a de minimis impact on water resources
and would not cause or contribute to a significant
degradation of surface or groundwaters. In making this
determination, the Department shall consider the extent
of any impacts on water resources resulting from the
proposed major Highlands development, including, but
not limited to, the regenerative capacity of aquifers or
other surface or groundwater supplies, increases in
stormwater generated, increases in impervious surface,
increases in stormwater pollutant loading, changes in
land use and changes in vegetative cover;
2. Cause the minimum feasible interference with
the natural functioning of animal, plant, and other
natural resources at the site and within the surrounding
area, and the minimum feasible individual and
cumulative adverse impacts to the environment both
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Appendix G
onsite and offsite of the proposed major Highlands
development;
3. Result in the minimum feasible alteration or
impairment of the aquatic ecosystem including existing
contours, vegetation, fish and wildlife resources, and
aquatie circulation of a freshwater wetland;
4. Not jeopardize the continued existence of species
listed pursuant to the Endangered and Nongame
Species Conservation Act, N.J.S.A. 23:2A-1 et seq. or
the Endangered Plant Species List Act, N.J.S.A. 13:1B
15.151 et seq., or which appear on the Federal
endangered or threatened species list, and will not
result in the likelihood of the destruction or adverse
modification of habitat for any rare, threatened or
endangered species of animal or plant;
5. Not be located or constructed so as to endanger
human life or property or otherwise impair public health,
safety or welfare;
6. Result in the minimum practicable degradation
of unique or irreplaceable land types, historical or
archeological areas, and existing public scenic attributes
at the site and within the surrounding area; and
7. Meet all other applicable Department standards,
rules, and regulations and State and Federal laws.
(¢) An applicant for an HPAA may request that the
Department waive a requirement of this chapter under
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(a) above only after the Department has rendered a
decision on an HPAA application under the rules as
strictly applied, all legal challenges to the decision that
the applicant chooses to bring have concluded pursuant
to (b)1l, above, and the applicant satisfactorily
demonstrates the following to the Department:
1. No alternative to the proposed major Highlands
development exists;
2. That the applicant has made a good faith effort
to transfer development rights for the subject site
pursuant to N.J.S.A. 13:20-138, and has not obtained a
commitment from the Highlands Council or a receiving
zone municipality to purchase said development rights;
3. The property has been offered for sale at an
amount no greater than the specifie fair market
value to all property owners within 200 feet of the
property as a whole, and to the land conservancies,
environmental organizations, and the Highlands Council
and all other government agencies on a list provided by
the Department, at an amount determined in compliance
with N.J.S.A. 138:8C-26] or 13:8C-38], as applicable by
letter sent by certified mail, return receipt requested,
using the form provided by the Department, disclosing
the location of all Highlands resource areas on the
property and stating that an application for a waiver of
the requirements of this chapter to permit development
on the property has been filed and enclosing a copy of a
fair market value appraisal, that was performed by a
State-licensed appraiser and that assumed that the
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Appendix CG
minimum beneficial economically viable use of the
property is allowable under local law; and
4. That no reasonable offer based upon the
minimum beneficial, economically viable use for the
property has been received;
i. Documentation for (7)3 and 4 above shall include
the following:
(1) A copy of each letter that the applicant sent
under this subsection;
(2) All responses received. Each response shal! be
submitted to the Department within 15 days after the
applicant’s receipt of the response;
(3) A list of the names and addresses of all owners
of real property within 200 feet of the property as a
whole, as certified by the municipality, including owners
of easements as shown on the tax duplicate;
(4) Receipts indicating the letters were sent by
certified mail; and
(5) A copy of the fair market value appraisal
required under (g)3 above.
(h) After consideration of the information required
in (g) above, the Department shall not approve a waiver
under this section if an applicant has refused a fair
market value offer to purchase the property for which
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Appendix G
the waiver is sought or if there is an alternative to the
proposed project that constitutes a minimum beneficial
economically viable use for the property.
(i) Upon written notice from the Department
advising a person that the conditions in (g) have been
satisfied, the person may request a waiver under this
section in accordance with N.J.A.C. 7:38-9.
(j) The Department shall complete a written analysis
of the factors it considers under (c) above, which shall
incorporate its decision on the request for a waiver
under this section no later than 180 days from the
Department’s receipt of a complete request under (h)
above.
(k) An HPAA with a waiver to avoid a taking of
property without just compensation shall:
1. Allow only the minimum relief necessary to enable
the property owner to realize the minimum beneficial
economically viable use of the property as a whole,
designed and built. in a manner that will conserve the
resources of the Highlands to the maximum extent
possible; and
2. Ensure that any part of the property that the
Department does not allow to be developed is protected
from future development by a recorded conservation
restriction containing those terms deemed necessary by
the Department to preserve the undeveloped property
and the mitigation plantings thereon, if any.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.