Fight City Hall Sooner Than Later

If you are not from New Jersey, you may wonder what relevance there could possibly be in a summary of the N.J. Highlands Water Preservation Act passed in 2004, but I urge you to read the following brief history of the act. Edmund Burke, a famous Irish orator, philosopher and politician from the 1700s, once wrote: “Those who don’t know history are destined to repeat it.”

Consider the act’s significance, and work diligently to avoid letting your home state pass similar legislation that impacts both your career and your constitutional rights as a property owner. This can happen in your back yard. When it does, it potentially will have an even greater impact on your career than the present global economic tsunami.

When the act became law, it superseded local land-use ordinances in seven counties where 30 percent of New Jersey’s 8.1 million people reside within 60 miles of Manhattan. The land area affected by the act according to the state is 800,000 acres. The law divided acreage roughly 50/50 into two distinct sections: a planning area and preservation area. Property owners in the preservation area will tell you it was a taking of their land without compensation.

The act created the Highlands Council, made up of 15 members appointed by the governor. No real estate developer has been invited to serve although many have applied for a seat. Educators, politicians, environmentalists and one farmer serve on the council. The Highlands Council now employs dozens of people with an annual payroll in excess of $15 million.
The law required the council to write the Master Plan for the entire region, which is comprised of 88 municipalities. Imagine telling your client to sign an agreement that stipulates: “We agree to agree later to whatever I say. But don’t worry, you can make comments, but I will not be bound to be responsive to them!”

Affected landowners and environmentalists made thousands of public comments in writing to the council over three years of hearings. Eventually a consultant was hired to produce a report for the council so they could finalize the Master Plan. The Master Plan was supposed to be written and made part of the law by mid-2006. It was more than three years late when Governor Corzine approved the council’s Master Plan in August 2008. Most court cases challenging all or sections of the act were dismissed by judges who concluded that the act without the Master Plan rules was incomplete and therefore could not yet be challenged.

When Governor Corzine approved the council’s Master Plan, he decided the act and the Master Plan had not gone far enough. Executive Order 114 was written and made into law by decree of the governor to ensure that building and development in the 400,000 acres of the planning area were dramatically curtailed. The order erased the distinctions between the two areas and overlaid preservation laws into the planning area. It also states that the laws written to create affordable housing and administered by the New Jersey Council on Affordable Housing over the past 25 years should be subordinate to the act, the Master Plan and the oversight of the New Jersey Department of Environmental Protection.

As chairman of the New Jersey Builders Association Highlands Committee and as president of the local chapter of the builders association most affected by the act, I am active in monitoring and leading responses to the problems our industry faces due to this legislation.

Many of our constituents feel we have not done enough. Many understand our anguish in fighting this barrage of attacks on constitutionally protected property rights. But, perhaps, the more things change, the more they stay the same. Why else would these two other famous Burke quotes written 300 years ago still be relevant today: “No one could make a greater mistake than he who did nothing because he could do only a little”; and, “Never despair; but if you do, work on in despair!”

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