N.J. Wins Challenge to State Water Protection Law

New Jersey Attorney General Anne Milgram announced Jan. 11 that the state successfully defended a challenge to the Highlands Water Protection and Planning Act, the 2004 law designed to protect water and other natural resources in an area of northwestern New Jersey spanning parts of seven counties.

In a 22-page ruling, Superior Court Judge Victor Ashrafi dismissed a lawsuit filed by developer ABD Liberty, Inc., that had challenged the Highlands Act on grounds that it violated the equal protection and due process guarantees of the New Jersey Constitution. Attorneys for the Division of Law represented the state Department of Environmental Protection and the New Jersey Highlands Council, contending in court filings that ABD did not have a viable complaint.

The Highlands Act regulates most types of development throughout a 415,000-acre area known as the “Preservation Area” in order to conserve water supplies used by more than half of New Jersey residents. The law contains numerous exemptions including farming, horticulture, construction of single-family houses and all development with approvals in hand by March 29, 2004.

"This is an important outcome for New Jersey’s natural resources, for our citizens, and for our quality of life," said Milgram. "We are committed to defending state laws that protect our environment and ensure that our state’s precious resources are not harmed by unchecked development."

Judge Ashrafi ruled that ABD's claim was based upon purely economic interest and did not concern any constitutionally-protected class of persons or special right. Ashrafi held that Highlands Act provisions that subjected development to stringent environmental requirements were a rational method to protect resources and, therefore, were constitutional.

The judge held that ABD could not prove that the means the Legislature chose to protect Highland resources was irrational simply because some landowners were treated more favorably than others. He ruled that any alleged unfairness in applying the Highlands Act to a specific property -- like ABD's -- could be remedied by DEP when the property owner applied for a permit to build. There is an administrative process for property owners to challenge DEP decisions, the judge noted.

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