On September 8, 2008, Governor Corzine approved the July meeting minutes of the New Jersey Highlands Council (the "Council") . While approval of the Council's minutes would not seem likely to generate a great deal of press, the July meeting was special. In July, the Council approved the Highlands Regional Master Plan (the "Plan"). The Plan is designed to protect designated environmentally sensitive areas of New Jersey which are responsible for providing a majority of New Jersey residents with their drinking water. In addition to the Plan, Governor Corzine also issued Executive Order 114 to assist in the implementation of the Plan.
The Plan
Areas within the Highlands are designated as being in either the Highlands Preservation Area or the Highlands Planning Area. Within the Preservation Area, all municipal and county master plans, development regulations and land use decisions must be consistent with the Highlands Regional Master Plan. If a county or municipality fails to comport their actions in accordance with the Plan, the Council may supersede local authority to enforce the Plan. Areas within the Preservation area are provided with benefits from the state, including: property tax stabilization (ten year phase out), priority in receiving discretionary state aid, and watershed preservation payments (not an exhaustive list of benefits). Within the Planning Area, compliance with the Plan is optional, but counties and municipalities are encouraged to comply with the Plan through the promise of the benefits enjoyed by areas in the Preservation Area.
The Plan sets limitations on what type of development can take place within the Highlands. Generally, large scale development within the Preservation Area or parts of the Planning Area that opt to comply with the Plan will be extremely difficult (though not technically impossible) due to the stringent bulk and coverage requirements in these areas. Parties seeking to develop this area in spite of the bulk restrictions will be forced to obtain development approval from the DEP, which can be both expensive and time consuming. Additionally, the Plan calls for the implementation of a transfer of development rights ("TDR") plan to transfer development rights from areas within the Highlands to other areas specifically designated for growth.
Exemptions
Certain projects are exempt from the restrictions put in place by the Plan. These exempt projects include (but are not limited to):
1. Projects which received certain approvals prior to March 29, 2004.
2. Construction of a single family house that will not increase impervious surface by one-quarter of an acre or more or result in the disturbance of one acre or more of land.
3. Improvements to an existing single family home.
4. Reconstruction of a previously existing facility within proscribed limitations for expansion.
5. Development for religious, school or hospital purposes.
6. Mt. Laurel developments/state plan centers.
Executive Order 114
In approving the Plan, Governor Corzine also issued Executive Order 114 (the "Order"), which helps guide the Plan's implementation, particularly its interplay with the New Jersey Council on Affordable Housing ("COAH"). There exists some contention between the goals of COAH and the Council, and the Order seeks to give some guidance to the two entities and put in place some ground rules for which interests take priority. COAH and the Council are ordered to enter into a joint Memorandum of Understanding within 60 days from the date of the Order to establish a plan that will "review COAH's third-round growth projections for consistency with the Highlands Plan."
In addition to directing that the Council and COAH work together, the Order does the following:
1. Reauthorizes the Garden State Preservation Trust (to fund the acquisition of open space).
2. Ten million dollars have been earmarked to begin purchasing development credits from those who want to remain on farmland in the Highlands.
3. DEP has been ordered to restrict permits that would drain water from undeveloped regions of the Highlands where water is deficient.
The Permit Extension Act
It is important to note that the Permit Extension Act signed by Governor Corzine on September 8, 2008 specifically exempts permits in the Highlands Region that would otherwise be extended by the Permit Extension Act.
