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(This story, in slightly different form, originally appeared in the New Jersey Law Journal.)

More than three years have now passed since the Highlands Water Protection and Planning Act (the Highlands Law) was approved in the waning days of the McGreevey administration. One of the Highlands Law’s principal requirements was that the Highlands Council prepare and adopt a regional master plan within 18 months of the Council’s first meeting.

On Nov. 30, 2006, several months behind schedule, the council released its initial draft RMP. That effort was soundly criticized by landowner, development and environmental interests. With no allies in sight, the proposal failed to secure sufficient traction and did not proceed to adoption.

In an effort to get it right, the council turned to Charles L. Siemon, a nationally recognized out-of-state land-use planning expert, for assistance in preparing a new and final draft RMP. Siemon’s firm was paid $245,000 to analyze the draft RMP-related comments and rewrite the 2006 plan. The result was the next generation, or final draft, RMP, officially released on Nov. 30, following a 10-to-4 council vote. Copies of the 383-page document can be downloaded from the Council’s Web site. Public hearings have been scheduled for Feb. 6 (in Morristown), 11 (in Paterson) and 13 (in Glen Gardner), with the comment period closing on Feb. 28.

The Highlands Law established detailed master-planning goals for the entire Highlands region, which consisted of the 414,965-acre preservation area and the 444,394-acre planning area, situated in 88 municipalities and parts of seven counties. These were heavily weighted in favor of protecting and enhancing water resources and other environmental values. Only slightly more leeway was provided respecting the planning area where orderly development, consistent with the State Plan and smart growth principles, was to be encouraged.

Unlike many other government-planning documents, which once completed are promptly forgotten, the Highlands Law provided that the RMP would have significant implications for future development in both the protection and planning areas. In that regard, the RMP’s adoption triggers the commencement of the local conformance process. Conformance will require preservation area counties and municipalities to align their respective master plans and development-related regulations within 9 to 15 months with the RMP or face the council’s superseding authority.

Local governments in the planning area will be encouraged to achieve RMP conformance by means of incentives in the form of grants and other financial and technical assistance. While some planning-area municipalities may voluntarily seek conformance status, it is likely that the large majority will not be swayed by the offer of the statutory inducements. It has been suggested that some municipalities interested in “opting in” may be motivated by a desire to thwart development and only fortuitously by a concern to protect the environment.

The final draft RMP consists of six chapters. The introductory general information is followed by a discussion of the region’s features and the plan and programs designed to protect and enhance those resources. In contrast to the 2006 initial draft, the 2007 iteration provides increased specificity and clarity concerning the plan’s elements and implementation.

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

The zone map, which is of particular importance, depicts three primary overlay zones: the Protection Zone, Conservation Zone and the Existing Community Zone, as well as three subzones: Conservation Zone — Environmentally Constrained, Existing Community Zone — Environmentally Constrained and Lake Community. The Protection and Conservation Zones where future development will be limited comprise 76.9% of the region’s area. Only 17% of the region has been designated Existing Community Zone, where additional growth may occur subject to land or capacity constraints. These zones span, and are blind to, the jurisdictional line separating the preservation and planning areas, an approach that has drawn criticism from the regulated public.

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

The RMP’s goals, policies and objectives for the Highlands region are discussed in Chapter IV. This includes detailed statements of intent and standards for protecting natural resources and attaining the Highlands Law’s other purposes.

The chapter also identifies numerous measures local governments must adopt and follow to achieve and retain conformance status. For example, forest protection programs, steep slope protection and habitat conservation areas and management programs will need to be included in local master plans and development regulations. Conforming jurisdictions will be required to make very extensive revisions to their existing local planning documents.

To the extent that future growth will be permitted, it will be limited, heavily regulated and guided away from environmentally sensitive and agricultural lands. According to the RMP, development or redevelopment should be compact and in or adjacent to previously developed areas. Additionally, such growth should be directed to locations where adequate public facilities are available and such activity is compatible with existing land uses and community character.Chapter V discusses the programs required to achieve the RMP’s goals, policies and objectives. The measures include assessments, model ordinances, technical guidance and assistance, as well as implementation measures, strategies and projects. The programs outline the work ahead for the Council — each will require substantial effort and resources to attain the desired results.Additional detail concerning Implementation is provided in the RMP’s final chapter. This includes a discussion of RMP conformance, consistency and coordination, the project review process and the Council’s relationship with other governmental entities.

The initial comments concerning the new draft were generally predictable. According to the Nov. 18 Daily Record, Council chairman John Weingart was pleased with the results of the process: “I feel very good about where we are. We have a draft plan that is very responsive to a very complicated law and that benefited greatly from a huge amount of public comments.”

In the same story, council vice-chairman Jack Schrier reflected on the Highlands Law’s constraints: “There’s a lot about the law that a lot of people don’t like. If they thought that the plan was going to get around that, they are going to be disappointed.”

Property owners, including farmers, were not impressed by the new planning document. David Shope put it this way in the Daily Record: “It offers no relief to us [landowners]. They decided to pay more attention to the salamanders than to the quality of life for the people who live here.” Those views were echoed by Helen Heinrich, a representative of the New Jersey Farm Bureau, in a Nov. 18 Star-Ledger story. Commenting on the absence of compensation for affected landowners, she observed: “That makes it hard to see the benefits in other parts of the plan because there’s just not any help in sight.”

Even the environmentalists, who had recommended Siemon for the redrafting assignment, were similarly unimpressed with the product. In the Daily Record, New Jersey Sierra Club director Jeff Tittel lamented: “Instead of fixing the draft plan, the new Highlands plan has been weakened even more, including putting 87,000 of environmentally sensitive acres into growth areas, bad clustering provisions, and allowing towns to play ‘Let’s Make a Deal’ with the maps.” Tittel has also wryly observed: “We finally saw the Governor’s monetization plan, he sold out the Highlands.”

Despite the absence of support from any of the affected constituencies, the Council appears poised to adopt the new draft RMP with only minimal revisions, perhaps as early as May 1, 2008. The implications of proceeding with that approach will pose substantial challenges during the implementation process.

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

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