(This story, in slightly different form, originally appeared inthe New Jersey LawJournal.)

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More than three years have now passed since the Highlands WaterProtection and Planning Act (the Highlands Law) was approved in thewaning days of the McGreevey administration. One of the HighlandsLaw's principal requirements was that the Highlands Council prepareand adopt a regional master plan within 18 months of the Council'sfirst meeting.

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On Nov. 30, 2006, several months behind schedule, the councilreleased its initial draft RMP. That effort was soundly criticizedby landowner, development and environmental interests. With noallies in sight, the proposal failed to secure sufficient tractionand did not proceed to adoption.

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In an effort to get it right, the council turned to Charles L.Siemon, a nationally recognized out-of-state land-use planningexpert, for assistance in preparing a new and final draft RMP.Siemon's firm was paid $245,000 to analyze the draft RMP-relatedcomments and rewrite the 2006 plan. The result was the nextgeneration, or final draft, RMP, officially released on Nov. 30,following a 10-to-4 council vote. Copies of the 383-page documentcan be downloaded from the Council's Website. Public hearings have been scheduled for Feb. 6 (inMorristown), 11 (in Paterson) and 13 (in Glen Gardner), with thecomment period closing on Feb. 28.

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The Highlands Law established detailed master-planning goals forthe entire Highlands region, which consisted of the 414,965-acrepreservation area and the 444,394-acre planning area, situated in88 municipalities and parts of seven counties. These were heavilyweighted in favor of protecting and enhancing water resources andother environmental values. Only slightly more leeway was providedrespecting the planning area where orderly development, consistentwith the State Plan and smart growth principles, was to beencouraged.

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Unlike many other government-planning documents, which oncecompleted are promptly forgotten, the Highlands Law provided thatthe RMP would have significant implications for future developmentin both the protection and planning areas. In that regard, theRMP's adoption triggers the commencement of the local conformanceprocess. Conformance will require preservation area counties andmunicipalities to align their respective master plans anddevelopment-related regulations within 9 to 15 months with the RMPor face the council's superseding authority.

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Local governments in the planning area will be encouraged toachieve RMP conformance by means of incentives in the form ofgrants and other financial and technical assistance. While someplanning-area municipalities may voluntarily seek conformancestatus, it is likely that the large majority will not be swayed bythe offer of the statutory inducements. It has been suggested thatsome municipalities interested in "opting in" may be motivated by adesire to thwart development and only fortuitously by a concern toprotect the environment.

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The final draft RMP consists of six chapters. The introductorygeneral information is followed by a discussion of the region'sfeatures and the plan and programs designed to protect and enhancethose resources. In contrast to the 2006 initial draft, the 2007iteration provides increased specificity and clarity concerning theplan's elements and implementation.

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Chapter II, Analysis of the Highlands Region, sets the stage byidentifying the area's significant natural, water, agricultural,historical, cultural, archaeological and scenic resources. Theseand other factors were considered in planning for future land useand were reflected in a series of land use capability zone maps:the zone map, water availability map, public community watersystems map, domestic sewerage facilities map and septic systemsyield map.

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The zone map, which is of particular importance, depicts threeprimary overlay zones: the Protection Zone, Conservation Zone andthe Existing Community Zone, as well as three subzones:Conservation Zone — Environmentally Constrained, Existing CommunityZone — Environmentally Constrained and Lake Community. TheProtection and Conservation Zones where future development will belimited comprise 76.9% of the region's area. Only 17% of the regionhas been designated Existing Community Zone, where additionalgrowth may occur subject to land or capacity constraints. Thesezones span, and are blind to, the jurisdictional line separatingthe preservation and planning areas, an approach that has drawncriticism from the regulated public.

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The landowner fairness issue is also discussed in Chapter II.Those who were hoping for some major new program to compensatelandowners for associated diminished property values resulting fromthe RMP will be disappointed. The discussion focuses on transfer ofdevelopment rights, a technique that in theory allows landowners insending zones, where growth is restricted, to benefit economicallyfrom increased levels of development realized in receiving zones.The Highlands Development Credit system depends on the voluntaryacceptance of receiving zones. In the current anti-developmentclimate, fueled by the desire to avoid any increase ineducation-related costs, few, if any, municipalities will beinclined to accommodate more intensive development. Thus, theprogram appears to be little more than an exercise destined tofail.

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The RMP's goals, policies and objectives for the Highlandsregion are discussed in Chapter IV. This includes detailedstatements of intent and standards for protecting natural resourcesand attaining the Highlands Law's other purposes.

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The chapter also identifies numerous measures local governmentsmust adopt and follow to achieve and retain conformance status. Forexample, forest protection programs, steep slope protection andhabitat conservation areas and management programs will need to beincluded in local master plans and development regulations.Conforming jurisdictions will be required to make very extensiverevisions to their existing local planning documents.

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To the extent that future growth will be permitted, it will belimited, heavily regulated and guided away from environmentallysensitive and agricultural lands. According to the RMP, developmentor redevelopment should be compact and in or adjacent to previouslydeveloped areas. Additionally, such growth should be directed tolocations where adequate public facilities are available and suchactivity is compatible with existing land uses and communitycharacter.Chapter V discusses the programs required to achieve theRMP's goals, policies and objectives. The measures includeassessments, model ordinances, technical guidance and assistance,as well as implementation measures, strategies and projects. Theprograms outline the work ahead for the Council — each will requiresubstantial effort and resources to attain the desiredresults.Additional detail concerning Implementation is provided inthe RMP's final chapter. This includes a discussion of RMPconformance, consistency and coordination, the project reviewprocess and the Council's relationship with other governmentalentities.

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The initial comments concerning the new draft were generallypredictable. According to the Nov. 18 Daily Record, Councilchairman John Weingart was pleased with the results of the process:"I feel very good about where we are. We have a draft plan that isvery responsive to a very complicated law and that benefitedgreatly from a huge amount of public comments."

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In the same story, council vice-chairman Jack Schrier reflectedon the Highlands Law's constraints: "There's a lot about the lawthat a lot of people don't like. If they thought that the plan wasgoing to get around that, they are going to be disappointed."

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Property owners, including farmers, were not impressed by thenew planning document. David Shope put it this way in the DailyRecord: "It offers no relief to us [landowners]. They decidedto pay more attention to the salamanders than to the quality oflife for the people who live here." Those views were echoed byHelen Heinrich, a representative of the New Jersey Farm Bureau, ina Nov. 18 Star-Ledger story. Commenting on the absence ofcompensation for affected landowners, she observed: "That makes ithard to see the benefits in other parts of the plan because there'sjust not any help in sight."

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Even the environmentalists, who had recommended Siemon for theredrafting assignment, were similarly unimpressed with the product.In the Daily Record, New Jersey Sierra Club director JeffTittel lamented: "Instead of fixing the draft plan, the newHighlands plan has been weakened even more, including putting87,000 of environmentally sensitive acres into growth areas, badclustering provisions, and allowing towns to play 'Let's Make aDeal' with the maps." Tittel has also wryly observed: "We finallysaw the Governor's monetization plan, he sold out theHighlands."

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Despite the absence of support from any of the affectedconstituencies, the Council appears poised to adopt the new draftRMP with only minimal revisions, perhaps as early as May 1, 2008.The implications of proceeding with that approach will posesubstantial challenges during the implementation process.

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Lewis Goldshore is a partner at Goldshore, Cash &Kalac of Lawrenceville, NJ. and Marsha Wolf are co-authorsof New Jersey Environmental Law (ICLE 2003), and Goldshore is aco-author of New Jersey Brownfields Law, published by New JerseyLaw Journal Law Books.

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