The New Jersey Supreme Court upheld the Appellate Division’s ruling in OFP, L.L.C. v. State of New Jersey, which held that the owner of 93-acre parcel in the Highlands preservation area who failed to obtain a required approval from the New Jersey Department of Environmental Protection prior to the date the Highlands Act was first introduced in the Legislature and thus failed to qualify for an exemption under the Act, must first exhaust its administrative remedies, such as applying for a hardship waiver pursuant to the Act, before claiming that a regulatory taking has occurred. The Court also affirmed the consitutionality of the retroactive application of the Highlands Act. According to a report in the Star Ledger on-line:

The New Jersey Supreme Court today upheld the Highlands Act, a landmark land-preservation law that curbs development in northern New Jersey.

Developer OFP has been fighting to build 26 homes on 93 acres in Washington Township in Morris County and has argued that the Highlands Act amounts to an unfair “taking” of their land. The state Supreme Court today upheld an appellate court ruling that the developer needed to make use of the compensation remedies that are built into the 2004 law — such as applying for a waiver — before asking the courts to intercede.
. . . .

In arguments before the Supreme Court in September, OFP attorney Brian Mulligan said a waiver would not make his client whole because it would allow only “minimal” use of the land.

Deputy Attorney General Barbara Conklin, arguing on behalf of the Department of Environmental Protection that day, conceded that the developer probably would not be able to build all 26 homes, but no one knew what they could build because they never applied “to get the relief the act intended them to have.”

For the full article, click here.

For the Supreme Court’s per curiam opinion, click here.

For the Appellate Division’s opinion, click here.