New Jersey Blocks off Highlands, but Eases Other Rules for Builders

By DAVID KOCIENIEWSKI and LAURA MANSNERUS
 
Published: June 19, 2004

James E. McGreevey won approval of a bill last Thursday that would protect much of the state's drinking water by limiting development in a 400,000-acre section of northwest New Jersey known as the Highlands.

But the price he paid to win approval of the Highlands initiative, a bill that would streamline the building permit process in much of the state, is likely to speed the pace of construction in huge swaths of the suburbs. Environmentalists were infuriated that those new regulations were rushed through the Legislature Thursday and warned that they would bring increased traffic congestion, pollution and suburban sprawl. The fact that the bill was passed just three days after it was introduced and that legislative leaders did not allow a floor debate was a stunning display of the construction lobby's political muscle.

Mr. McGreevey and Democratic legislative leaders insist that the two plans, taken as a whole, represent a sensible balance between conservation and regulated growth.

"If we're going to stop development in the Highlands, stop desiccating our farms and open space and our suburban and urban parks, then we need to encourage it elsewhere, in targeted areas and inner-city areas in need of redevelopment," the governor said.
But conservationists insist that the new rules will give New Jersey some of the most lax regulations in the nation and will lead to increased building in overdeveloped areas like Bergen County and the suburbs along Route 1 between Newark and Trenton.
Many legal experts say the rules are so lax, in fact, that they are not likely to withstand legal challenges.

"This is the worst piece of environmental legislation I've seen in New Jersey in 35 years," said Edward Lloyd, director of the Environmental Law Clinic at Columbia Law School. "People in New Jersey care a lot about the environment, and usually there is strong support for the environment in both parties. And this is a failure."

The key to understanding the vast scale of the proposals is the State Development and Redevelopment Plan, which was devised 12 years ago in an attempt to preserve the dwindling amount of open space around the state and halt the unplanned proliferation of strip malls and subdivisions.

The new legislation allows expedited state approvals for developers in areas that the state plan designates as metropolitan or suburban. It also provides for such approvals in smaller nodes around towns in rural areas. The new law would affect not just highly developed suburban communities like Princeton, but also the outskirts of remote towns like Sparta.

It is not clear exactly how much of that territory is available to builders; as of 2001, the state plan said that of 543,000 acres classified as suburban, 206,000 were "unprotected and undeveloped" while 23,000 were preserved and 86,000 not suitable for development.
Builders say the plan greatly overestimates the amount of land truly available to them. But Jeff Tittel, the executive director of the Sierra Club of New Jersey, said the estimate was low. The area designated suburban, he said, "is mostly vacant farmland that they're turning into sprawl."

Barbara Lawrence, the executive director of New Jersey Future, a statewide planning organization, said, "I feel queasy defending the bill," but she added that "the streamlining is confined to areas of the state where we have supposedly agreed we want development to take place."

Ms. Lawrence said the builders had legitimate complaints about the red tape in the state agencies, and other land-use experts agree that simplifying and expediting is, in theory, a good thing.

"That's the sad part about this," Mr. Lloyd said. "There's agreement about the problem, but the solution is using a sledge hammer where a scalpel would be appropriate."

The legislation requires the state to act on environmental permits within 45 days, and to reach a final decision within another 45 days. If it does not, the approval will be automatically granted.

The law also concentrates power in a "smart growth ombudsman," appointed by the governor, who could not only intervene on behalf of builders but could also veto any proposed regulations that he finds inconsistent with the state plan.

Many of these provisions raise legal questions, especially since the state is bound to comply with many federal environmental laws governing permits. It is for that reason, legal experts say, that only a few other states have adopted similar streamlining laws, with mixed success.

Thomas Borden, an associate professor at the Environmental Law Clinic at Rutgers University in Newark, said he expected several environmental groups to challenge the law in court, as the Sierra Club has already vowed to do. Mr. Borden said the groups expected builders to overwhelm state agencies with applications that then would likely be granted without review. "The potential for abuse is just horrendous," he said.

Environmentalists also say that by making permits easier to obtain, builders will be able to bully local planning officials by approaching them, permits in hand, and threatening to sue any municipality that opposes proposed construction.

But Mr. McGreevey says that the Department of Environmental Protection will receive enough additional staff to handle any increase in permit applications. He also insists that the new rules will not weaken the regulatory process.

"The D.E.P. will give an answer to a permit application. They'll just have to be more efficient about it, and if there's any doubt, the answer will be no," said Mr. McGreevey, who says his record on environmental policy should ease the concerns of New Jerseyans who fear additional sprawl.

Many environmentalists say now that the governor and fellow Democrats have pushed through an initiative that is so pro-developer, they have suddenly grown wary of Mr. McGreevey, their longtime ally. Conservationists say that the streamlined permitting plan has undermined the process so severely thatthey will have far less power to fight undesirable developments. And that, environmentalists say, is too high a price to pay, even for a goal as ambitious as preserving the Highlands.