Governor Corzine Determines Highlands Protection Trumps Affordable Housing Needs
By: Henry T. Chou, Esq.
Last month, Governor Corzine approved the Highlands Regional Master Plan ("Highlands Plan") and issued an executive order to facilitate its implementation. The Highlands Plan was adopted by the Highlands Council under the auspices of the Highlands Water Protection and Planning Act, which was intended to limit development in the northwest portion of the state and to ensure protection of the State’s water resources. The Governor’s executive order emphasizes that the need to protect water quality in the Highlands region trumps even the serious affordable housing concerns in New Jersey.
The executive order gives the Highlands Council and New Jersey Department of Environmental Protection (“DEP”) the authority to review COAH’s calculation of affordable housing obligations of municipalities located in the Highlands, and to adjust them downwards as necessary to ensure consistency with the Highlands Plan. Additionally, it instructs that affordable housing must be provided only when “actual growth” occurs in the Highlands. The executive order sets a deadline of November 8, 2008 for the Highlands Council and COAH to enter into a “Memorandum of Understanding” implementing directives of the Governor.
The Highlands Region is divided into two general areas, the Preservation Area, an area where compliance with the "no-growth" restrictions of the Highlands Plan is mandatory, and the Planning Area, an area where municipalities are supposed to have the discretion to "opt-in" or "opt-out" with respect to compliance with the Highlands Plan restrictions.
Several “zones” are located within both the Preservation Area and Planning Area. The zones include three major zones (the Protection Zone, the Conservation Zone, and the Existing Community Zone) and two sub-zones (the Lake Community Zone and the Environmentally-Constrained Sub-Zone within both the Conservation Zone and the Existing Community Zone).
The Governor’s executive order directs DEP to withhold permits or approvals for development projects proposed in the Protection Zone, the Conservation Zone and the Environmentally-Constrained Sub-Zone unless those development proposals conform to the strict development criteria of the Highlands Plan. Because the Highlands Plan imposes a virtual “no-growth” standard, the Governor’s directive essentially prevents development projects from receiving requisite DEP permits in the Protection Zone, the Conservation Zone and the Environmentally-Constrained Sub-Zone. These three zones are located within both the Preservation Area and the Planning Area. Thus, the Governor’s executive order is basically a “back-door” method for forcing certain municipalities within the Planning Area to "opt-in" to the Highlands Plan.
Additionally, the executive order directs DEP to deny or limit certain DEP approvals for development "within a HUC 14 subwatershed that is in, or anticipated to be in, a deficit of net water availability, as identified by the Highlands Plan." The list of HUC 14 subwatersheds that have a deficit of net water availability is contained in Appendix D of a Highland Commission document entitled "Water Resource Assessment Technical Report - Vol. 2." The Highlands region has about 180 HUC 14 subwatersheds and about 2/3 of them are deemed to have a deficit of net water availability.
The Governor’s executive order is generating considerable controversy within the development community and there is speculation that legal challenges to the executive order are on the horizon.