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Post Info TOPIC: A Law that is Applied Arbitrarily and Capricously

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A Law that is Applied Arbitrarily and Capricously

Star Ledger

N.J. Supreme Court backs Highland Act land rules
by Paula Saha/The Star-Ledger
Tuesday December 09, 2008, 11:09 AM

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 2005, OFP's case before Superior Court Judge Theodore Bozonelis in Morris
County was the first to test the constitutionality of the Highlands Act.
Bozonelis dismissed their claim, and noted that the law provides protection
to property owners through an administrative process that includes waivers
that OFP had never applied for. The appeals court upheld that ruling.

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

The court was unanimous in affirming the lower court's opinion. They opted
not to write a full opinion in the case, relying instead on on the lower
court opinion. Their decision is online.

The Highlands Act, passed in 2004, limited development in a huge swath of
the state covering 88 municipalities in Morris, Sussex, Warren, Bergen,
Passaic, Somerset and Hunterdon counties. The region provides drinking water
to more than half the state.

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