“You cannot bring about prosperity by discouraging thrift.

You cannot help small men by tearing down big men.

You cannot strengthen the weak by weakening the strong.

You cannot lift the wage earner by pulling down the wage payer.

You cannot help the poor man by destroying the rich.

You cannot keep out of trouble by spending more than your income.

You cannot further the brotherhood of man by inciting class hatred.

You cannot establish security on borrowed money.

You cannot build character and courage by taking away men’s initiative and independence.

You cannot help men permanently by doing for them what they could and should do for themselves.” — Rev. William John Henry Boetcker, 1873 [Often falsely attributed to Abraham Lincoln]

Governor James McGreevey signed the Highlands Water Protection and Planning Act on August 10, 2004. This Act should be the concern of every New Jersey citizen.   Some say the Act was signed to protect water resources for 5.4 million people and also the environment in the 860,000-acre Highlands region.  But, there are many conflicts and mixed messages that have come to light, degrading this utopian concept.  I hope to portray the realities of the Highlands Act and in doing so also clarify some major issues. 

Governor Corzine is now reviewing the 490-page Regional Master Plan (RMP). The Highlands Council, an entity in the Department of Environmental Protection, approved the plan on July 17, 2008. The RMP will determine what will be the future ambiance of the Highlands area, its landowners, and constitutional property rights.  As I position Corzine as a centralized government planner, this would put the Highlands Act and the RMP right up his alley, but he does need to be concerned about votes for the gubernatorial election in 2009.

The RMP mapping splits the Highlands into two major areas.  There are also 53 ‘layers’, ‘sub-zones’ or ‘overlays’ within the Highlands.  The lines have been drawn, at great taxpayer expense from data submitted by geologists, engineers, and other professionals.

The Preservation Area, that comprises approximately half of the Highlands, is labeled as the most environmentally sensitive.  Land activity will be very restrictive, which will mostly cease any building and constrain many other land uses.  DEP Highlands’ specific rules apply to the Preservation Area.  Municipalities in the Preservation Area are required to revise their master plans and development regulations to conform to the RMP and submit them for approval by the Council.  Here is a taste of the bureaucracy this plan encompasses.

“The Highlands regional master plan will include a resource assessment that establishes sustainable development considering ecosystem resources, a financial element to determine cost of implementation, and assessment of smart growth opportunities. There are to be maximized opportunities for government and public input, methods for coordination and consistency with local, State and Federal programs and policies, and a detailed approach to preserving transportation systems. In addition, the master plan will include a land use capability map and comprehensive statement of policies for planning and managing the development and use of land in the Preservation Area, which shall be based upon, comply with, and implement the environmental standards adopted by the Department of Environmental Protection. Preservation zones are to be identified in a preservation zone element where development shall not occur in order to protect water resources and environmentally sensitive lands and which are to be permanently preserved through use of a variety of tools, including but not limited to land acquisition and transfer of development rights. The master plan will also include minimum preservation area standards for municipalities and counties.”

The second major area is the Planning Area.  DEP Highlands’ specific rules do not apply to the Planning Area.  Municipalities in the Planning Area have the option to revise their master plan and development regulations or retain the ones they have.  Municipalities are enticed to ‘opt in’ by the offer of incentives or financial assistance.

It appears that all the landowners and municipalities in the Highlands will be under regulations of the Act imposed by the state, excepting the state itself.  It is Corzine’s goal to provide 115,000 affordable housing units.  A very interesting article written by the New York Times states that his office reported the “plan was under a review that would include a study of an apparent conflict between the Highlands plan and recent state legislation requiring affordable housing”.  The Council on Affordable Housing (COAH), in the Department of Community Affairs has announced the number of units each municipality needs to build to comply.  An email received by the Star-Ledger from COAH  states their position on this goal as it pertains to the Highlands.  Officials there “look forward to working cooperatively with the Highlands Council to create affordable housing opportunities in the Highlands Region as required by (law) and in keeping with the region’s ongoing municipal constitutional affordable-housing obligations.”

Environmental groups, farmers, municipalities, and builders, and a number of legislative representatives are opposed to the RMP.  Some eighty-four environmental groups such as the powerful Sierra Club belong to the New Jersey Highlands Coalition. The environmentalists want more control over pollution levels and clustering of housing allowable under the plan and support the minimum ‘lot’ regulation.

Farmers are overwhelmed by the loss of land value and building regulations.  The Farm Bureau recently challenged the minimum ‘lot’ requirements.  In the Preservation Area one would need 88 acres if forested for one unit and 25 acres in non-forested.

The State of New Jersey has no money to compensate landowners for the loss of value from the mandates of the Highlands Act.  There is some talk of a water tax but that has not come to fruition.  A Transfer of Development Rights (TDRs) approach: by which developers can purchase certificates from a Preservation Area property owner to place developments in the Planning Area has been in focus as a way of fulfilling the long ago promise to compensate landowners.  The Highlands Council set up the Highlands Development Credit Bank the end of June 2008 for the TDR program, but the state is broke and the account needs money.  Also stated by the Daily Record is that there is only a total of 12,000 acres proposed to receive TDRs in the Planning Area.  Page 353 of the RMP states,

“The Highlands Act establishes a goal of identifying at least 4% of the Planning Area for potential TDR receiving areas, unless environmental constraints limit such areas to below that goal.  Accordingly, the goal of the Highlands Act through the implementation of the RMP is to identify 17,776 acres of the Planning Area’s 444,398 acres.”

I’d say the RMP is a bit short, by 5,776 acres.  Receiving areas, which are voluntary, have also not yet been specifically identified by the Council as per the statement on page 125 of the RMP.  It has already been four years since McGreevy signed the Highlands Act and it will take years more for any TDR program to even get off the ground.  In the mean time, farmers and other landowners suffer the ramifications of the Act.

There have been a number of specific cases where the Highlands Act has spawned lawsuits.  In an Analysis of Highlands Act Exemptions Holzhauer & Holenstein, LLC  estimate the impact at “$80 Billion Dollars of lost development having a gross economic impact of $160 Billion Dollars”.  Some builders have filed suit and a few of these projects have been in the works for a decade as they have been in the process of first getting the required permits from the towns and state pre Highlands, then had to meet new requirements as a result of the Act.  The New Jersey Builders Association has submitted comments about the Act that can be viewed on their site.

Yet more landowners have filed suits because of the onerous regulations that infringe on their ability to farm or continue to have the same rights of property ownership as those outside the Preservation Area.

Here is the municipal brochure that gives some generalized information on land regulations under the Act.  Municipalities in the Highlands are under many state mandates that cost taxpayers additional money.  These regulations will also cost Highland taxpayers for towns to adopt new master plans and create new ordinances.

The Highlands Council touts that there are 17 exemptions.  The dictionary defines exempt as free from an obligation, a duty, or a liability required of others.  But an exemption as listed by the Council must be applied for, and that can be costly.  Don’t forget to send your fee payable to “Treasurer, State of New Jersey” with the Consistency Determination Application Form to receive you Highlands Applicability Determination.  Sounds like an Abbott & Costello game of “who’s on first”.

The DEP definition of “impervious and pervious surfaces” do not match the Highlands Council definitions.

“An impervious surface does not allow water to drain through it into the soil.  Roads and parking lots made of concrete or asphalt, as well as rooftops and swimming pools, are examples of impervious surfaces.  A pervious surface is porous and allows water to pass through.  Such surfaces include sand, soil, gravel or stones, grass and other types of vegetation.”

Here is the definition of “impervious surface “ from page 24 of the Highlands Land Use Management report, and is also under the definitions in the Highlands Act (13:20-3).

“Impervious surface” means any structure, surface, or improvement that reduces or
prevents absorption of storm water into land, and includes porous paving, paver blocks, gravel, crushed stone, decks, patios, elevated structures, and other similar structures, surfaces, or improvements.

Even churches, fire companies, emergency squads, and road projects are affected by the regulations.  They are virtually reduced to begging for their projects to be accepted, or exempted.

Indeed there is a ‘river of money’ flowing out of the Highlands.  Increasing financial and social burdens are being placed on the Highlands landowners and the water resources.  Cities have fowled their own nest and want increasing amounts of the Highlands water, at no additional cost to them.  Certainly, urban and other downstream users could do much better then they are at setting up their own water systems, curtailing usage, and increasing purity standards.

Some have proclaimed the Highlands region is in a water deficit.  An oxymoron when you consider that half the population of New Jersey is draining the water supply.  Water is not only supplied as sustenance to people but also industries, especially for food processing, pharmaceuticals, and tourism.  I have seen what tourism can bring on my one and only visit to the beach at Spruce Run Reservoir.  My short visit ended abruptly when the dirty diaper floated by.  It was heading down stream toward home.

Not included in the RMP is a discussion of the United States Riparian Doctrine and how it applies to the Highlands Act.  This doctrine was adopted from English Common Law and applied to the eastern humid states.

“Over the last two centuries the English common law system that originally applied to New Jersey waters has been incrementally modified to meet the increasing demand for water and reflect the changing value society has placed on water. In New Jersey the most recent changes have been to incorporate the concept of the public trust doctrine.  Under this doctrine, the waters of New Jersey are viewed as the property of the State, which acts as the trustees of the people.”

Source for above - “Water Supply Availability in the Raritan River Basin” - page 2.  It applies to all surface and ground water and also to all users in New Jersey.

All property owners can find support through the Highlands Conservation Association.

“The mission of HCA is to restore and protect the constitutional rights of citizens to own and use private property in the New Jersey Highlands Area and to prevent the loss of these rights from actions of government under the guise of public benefit without appropriate compensation.”

What this plan means to me it that we are living under a governance that no longer supports the principle that Abraham Lincoln so eloquently espoused in his 1863 Gettysburg Address; to ensure that “government of the people, by the people, for the people, shall not perish from the earth”.  Some would call it a conflict of home rule vs. the common good.  This may be one of the last frontiers for a battle to retain principles that were the democratic foundations of our great country.  My belief is that the importance of the ramifications of the Highlands Act is severely underestimated.

I call it government planning in the name of common good, at the expense of individual rights.  A violation of the Fifth Amendment of the US Constitution, “nor shall private property be taken for public use, without just compensation”.

There are those that say the ‘property’ is not being taken.  I will end leaving you with pondering the realities of this quote, “Scholars in the social sciences frequently conceive of property as a bundle of rights. They stress that property is not a relationship between people and things, but a relationship between people with regard to things.”

Businesses are a major source of revenue for New Jersey.  Through sales tax, employee taxes, registrations, licenses, and oh yes fines.  Businesses are major private employers. Here is an overview of the NJ business taxes, located in the Department of Treasury, Division of Taxation.  Collection of these taxes is a business responsibility imposed by the will of the state, with no compensation received for the work and costs incurred or direct training.  Not understanding the rules and missing or miscalculating payments will result in penalties and interest. The state collects these funds at no risk on their part, but don’t be late.  Some taxes are collected twice or more times as in the sale of a vehicle each time, or cigarettes where there is a tax of over $2.60 on each pack, then sales tax is charged at the point of sale effectively taxing the tax. NJ is biting the hands that feed their mouth.

Last year there was the ‘raid’ on businesses that did not have the required disability posters displayed.  These are not mailed to businesses, therefore many did not even know of their existence.  Here is where you can print the Civil Rights Posters and other required posters.

This year it was the turn for gas stations.  The Office of Weights and Measures in the Division of Consumer Affairs under the Department of Law and Public Safety checked the pumps, signage postings, and paperwork.   A list of 350 gas stations was made public giving the appearance that all the stations were gouging consumers.  Many of the infractions were actually minor but now all these businesses have a mark on their name.

Recently, Governor Corzine signed a comprehensive affordable housing bill into law (A-500).  This bill is an epitome of centralized government planning and money redistribution.  It covers a wide range of authority such as municipal mandates, loan appropriations, development fees, and urban housing assistance.  Included in this plan is the Statewide Non-Residential Development Fee Act.  Most business will be assessed a fee of 2.5% on non-residential construction additions and new construction.

Farmers are not listed as one of the exemptions from the 2.5% fee.  Here is a quote from the Politickernj.com by Senator Steve Oroho.

“The politicians in Trenton seem bound and determined to take the garden out of the Garden State,” Oroho stated. “If the DEP, the Highlands Commission and the COAH have their way, farms in this state will soon be nothing more than a bittersweet memory. In order for New Jersey’s economy to grow, we must promote business development and not penalize job growth, in all aspects of our economy, including agriculture.”

 Again on Politickernj.com is a press release by Senator Phil Haines requesting that power plants and renewable energy be exempt from paying the 2.5% development tax.

“Given the language that was used in this legislation, it would appear that the 2.5% non-residential development fee must be imposed upon the public utilities that attempt to construct new power plants, as well as any person who intends to construct any structure to produce energy from renewable sources such as solar technology, photovoltaic technology, wind energy, fuel cells, and geothermal technology.”

“The imposition of a 2.5% affordable housing fee on the value of a multi-billion power plant project could have a damaging effect on the energy bills of New Jersey ratepayers, who will be forced to pay for this new affordable housing mandate every time they turn on a light switch or touch their thermostat.”

Call it a fee, a registration, license, or a regulation.  I call them all a tax.   Even the sunshine and wind in this case will be taxed if a structure is built to take advantage of them. The cost of all of the above will slide to the bottom of the NJ government ‘food chain’, to us the consumers and the taxpayers. They will all be added to the cost of doing business and passed down.