It is likely that local officials will have a broad range of views respecting the Highlands Regional Master Plan. That is to be expected regarding any issue of public importance, particularly one that impacts seven counties and 88 municipalities.
On November 30, 2006, the New Jersey Highlands Council released the draft version of its long awaited Highlands Regional Master Plan (RMP). The plan was an important requirement of the Highlands Law, approved in 2004. That law directed the Council to prepare and adopt the RMP within 18 months, a goal that will be missed by about a year.
The draft plan consists of text maps, charts and photographs and is available on the Council’s website www.highlands.state.nj.us. It constitutes the Council’s vision for the Highland Region’s future preservation and compatible but very limited future development.
The 860,000 acre region comprises 13 percent of the state’s land area. It includes 88-municipalities with a population of 800,000 in portions of Bergen, Hunterdon, Morris, Passaic, Somerset, Sussex, and Warren counties.
The Council will hold seven public hearings and the public comment period will close on March 2, 2007. Interested parties—such as local officials, landowners, farmers and developers—will be submitting extensive comments. But other than for some minor changes to the draft, adjustments should not be anticipated when the plan is adopted.
The Preservation and Planning Areas
The Highlands Law divided the region into two parts—the 414,964 acre preservation area and the 444,392 acre planning area—and set very specific planning goals for both. The preservation area objectives included protecting water resource quality and quantity, preserving land in its natural state and protecting the region’s natural, scenic and other resources. The planning area goals were also environmentally-protective, but orderly development consistent with the State Plan and smart growth principles was to be encouraged.
Once the RMP is adopted, preservation area counties and municipalities must conform their respective master plans and development regulations with its provisions. The Council will supercede local authority where there is nonconformance. For planning area local governments the conformance process is voluntary and will be encouraged by means of incentives. It is uncertain whether these incentives, or other factors, will be sufficient to result in a significant amount of voluntary conformance.
The RMP Draft
The draft RMP is divided into three major sections: The Highlands Law; The Highlands Region, History and Current Conditions; and The Elements of the Plan. The first two are descriptive. They set the tone for the future development restrictions described in the RMP’s components and depicted on the land use capability map.
The map consists of three overlay zones: a protection zone in which development will be severely limited; a conservation zone consisting of agricultural lands where growth will be constrained by inadequate infrastructure or the need to protect important agricultural resources; and a planned community zone comprised of lands that have sufficient infrastructure capacity and land use characteristics to support growth.
The RMP makes it very clear that future development in the region, particularly in the preservation area, will be severely restricted. Only about 4 percent of that area was assigned to the planned community zone. Planning area municipalities that voluntarily participate in the Highlands process will also experience strict growth limits since 70 percent of that area has been designated as protection zone or conservation zone.
The major portion of the RMP report discussed the plan’s elements. That section includes a resource assessment, as well as components that generally addressed financial implications, local government and public participation, coordination and consistency with other governmental initiatives, transportation and smart growth.
The resource assessment received the most detailed discussion and its themes were reflected throughout the RMP. It consisted of a review of the region’s water resource management; ecosystem management; land preservation and stewardship; agriculture resource protection and sustainability; air quality; and historic, cultural and scenic resource protection issues.
Transfer of Development
The smart growth component reviewed development/redevelopment, transportation and transfer of development (TDR) issues. Smart growth, which according to the RMP also includes smart conservation, is difficult to define precisely. Where development will be permitted in the region, it will occur only where there are minimal environmental constraints, access to existing utility and transportation infrastructure, and municipal interest.
TDR is designed to provide preservation area landowners with some compensation for reduced property values. In theory, it would be funded through Highlands Development Credits that would authorize increased density in the planning areas yet to be identified (the voluntary receiving zones). While an outline of the approach was provided, the RPM noted that more work will be required to establish a workable TDR program. In other words, landowners will not receive any tangible benefits for the foreseeable future.
The financial component is designed to estimate and track the RMP’s implementation costs and to evaluate potential governmental cost savings that may be achieved by plan conformance. This section includes a cash flow timetable and an assessment of baseline fiscal economic indicators.
The RMP also includes a consistency and coordination component and a local participation component. The plan describes how the Council intends to work with the state and local governments to achieve these objectives.
The RMP provides a series of policies that are designed to protect the region’s resources, promote smart growth, and achieve a sound transportation system consistent with the Highland Law’s strategies and principles. During the pre-conformance period—nine to 15 months following plan adoption—the Council will develop a series of tools including standards and guidance to assist local governments achieve conformance. Nonetheless, attaining that status will be a difficult task.
The public comment period concerning the draft RMP marked the beginning of the next phase of the Highlands Law’s implementation. The competing interests have started to express their views.
Most of the comments have been predictable. The Council and its staff have relied on the Highlands Law to defend the RMP while conceding that additional work is required to complete some of the plan’s elements. Landowners and farmers have strongly objected to the imposition of severe restrictions without the provision of compensation. Environmentalists generally support the RMP but some have criticized it for not being sufficiently specific or restrictive.
It is likely that local officials will have a broad range of views respecting the plan. That is to be expected regarding any issue of public importance, particularly one that impacts seven counties and 88 municipalities.
It is also clear that there will be additional litigation concerning the Highlands Law. But it is uncertain whether the objectors will challenge the RMP or wait until further implementation steps are taken.
Lewis Goldshore, Esq., is a partner with Goldshore, Cash & Kalac in Lawrenceville. His practice is devoted to environmental, land use and municipal law. He is also environmental counsel to the New Jersey State League of Municipalities.
Article published in New Jersey Municipalities Magazine, March 2007