While the appellate division recently issued two rulings upholding the Highlands Act in the face of constitutional challenges, the reality remains that many property owners situated in the Act’s preservation area have lost essentially all ability to develop their property resulting in, in many cases, extreme financial hardship. The Sunday edition of the New Jersey Herald (Lawyers: Highlands Fight Not Over Yet, August 19, 2007) highlights these issues from the property owner standpoint and notes that the strongest challenge to the Act may be the apparent lack of scientific basis for the designation of preservation areas and exemptions based upon alleged political considerations rather than established science or sound public policy:
About 60 years after his grandparents first bought the land, Hal Danielson was hoping to build a small subdivision on the property in Hampton Borough in Hunterdon County for his retirement.
Just before he could secure the necessary approvals, the 2004 Highlands Act was passed and Danielson’s project was no longer permitted in that area. Now the value of the 12-acre parcel has diminished, and Danielson is facing foreclosure on his existing home in Summit within the next few weeks.
“It took away my life savings on this thing,” the 70-year-old Danielson told the state Highlands Council Thursday. “I’m losing my residence. We don’t even know where we’re going to live.”
Three years after the law was enacted, the scientific reasoning behind the legislation and the lack of compensation for affected properties continue to frustrate landowners in the 859,358-acre Highlands region, possibly leading to a series of constitutional challenges in state and federal courts.
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Several attorneys involved in litigation against the Highlands Act said one of the strongest constitutional arguments is that the legislation was not based on scientific research, but instead on political deals between legislators. That criticism is part of the lawsuit waged a few months ago by Warren County and nine property owners.
“The act was based on junk science and a deal in a motel room. That is unacceptable and that is unlawful,” said Elliott Pell, the attorney representing Castle Rock Estates. Pell and the attorneys for OFP LLC hope to take their separate cases to the State Supreme Court.
The argument over the act’s scientific grounds as well as the unequal disbursement of exemptions will be part of the lawsuit soon to be filed in federal court on behalf of the Highlands Conservation Association, said attorneys Gary Baise and Stewart Fried of Washington, D.C.-based Kilpatrick Stockton LLP. The firm is also representing Phillipsburg Alliance Church and Pompton Plains Reformed Bible Church, both of whom are challenging their denied exemptions.
“Legislatures do need to have rational basis for legislative enactment,” Fried said. “Political deals, we believe, do not qualify as a good basis for such a decision.”
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Another constitutional argument might be the absence of a “transfer of development rights” program that was meant to compensate landowners impacted by the Highlands regulations, said Brian Mulligan, the attorney representing OFP LLC. In that program, development rights, or credits, from a Highlands area, or “sending zone,” are purchased and placed in a TDR bank. Developers can purchase the credits from out of the bank to build in a different town, known as a “receiving zone.”
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Hank Klumpp, who owns a 150-acre farm in Lebanon Township, Hunterdon County, still doesn’t understand how the legislators decided where to put his property without establishing a stable source of funding to compensate landowners.
“I still want to see the scientific data that put my property in the preservation area,” Klumpp told the Highlands Council. “Farmers depend on equity for survival. Do any of you on the council know how it feels to be robbed?”
For the complete article, please go to: http://www.njherald.com/secure_story/312994772107270.php
