Highlands Act Upheld

New Jersey’s Highlands Water Protection and Planning Act has been upheld by a State appellate court.  County of Warren v State of New Jersey, ___ N.J. Super. ___ (App. Div. 2009) (Slip op. September 4, 2009, Docket No. A-4591-07T1)(Read the slip opinion here).

The Appellate Division – in a published opinion – affirmed the trial court’s dismissal of a complaint on a pre-answer motion to dismiss.  The complaint, filed by the County of Warren and several individual property owners, challenged the Highlands Water Protection and Planning Act (N.J.S.A. 13:20-1 to –35) on four separate grounds: 1) failure to meet statutory guidelines rendered subsequent actions by Highlands Council ultra vires; 2) Equal protection; 3) Transfer of development rights program is not a viable funding source for acquisition of natural resource lands; and 4) the boundaries of the preservation area were created without scientific basis.  Writing for the court, Judge Waugh rejected these arguments, relying primarily upon the recent OFP, LLC v. State, 395 N.J. Super. 571 (App. Div. 2007), affirmed o.b., 197 N.J. 418 (2008) (affirming dismissal of action where property owner failed to exhaust administrative remedies); and Gardner v. New Jersey Pinelands Commission, 125 N.J. 193 (1991).  In addition, the property owner’s alleged “constitutional right to farm” arguments were rejected as they “cited no constitutional provision, statute, or case that specifically articulated a right to farm of constitutional dimension.” (Slip op. at 13).