On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2607-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman, Winkelstein and LeWinn.
The Highlands Water Protection and Planning Act (Highlands Act), N.J.S.A. 13:20-1 to -35, divides the Highlands Region into two areas: the preservation area (which is subject to stringent water and natural resource protection standards, policies, planning and regulation), and the planning area. N.J.S.A. 13:20-2, -3, -7. The Legislature designated specific boundaries for both the preservation and planning areas by reference to streets, roads, and specific distances from various natural and artificial boundaries, as well as references to properties by lot and block number. N.J.S.A. 13:20-7(b).
Plaintiffs own a 394-acre tract of land in Montville Township, which is located entirely within the preservation area. Plaintiffs brought this action to challenge the inclusion of their property in the preservation area. Plaintiffs' amended complaint asserted a single claim: that "[t]here is no scientific justification for the inclusion of [their] Property in the Preservation Area" and therefore "placement of [their] Property in the Preservation Area is arbitrary, capricious and unreasonable."*fn1
The case was brought before the trial court by plaintiffs' motion to compel discovery and defendants' cross-motion for summary judgment. The trial court granted the State's motion to dismiss the complaint, thus mooting plaintiffs' motion to compel discovery. In granting the State's motion, the court stated:
If the plaintiffs object to the [Act's] application [to their property] . . . as unfair, plaintiffs can and should apply for a permit from the New Jersey DEP or a permit waiver, N.J.S.A. 13:20-32 and 33.
Instead of pursuing [their] grievances in court, this court suggest[s] that the plaintiffs must pursue their avenues of relief afforded to them under the Highlands Act.
During the pendency of plaintiffs' appeal from the dismissal of their complaint, we decided OFP, L.L.C. v. State of New Jersey, 395 N.J. Super. 571 (App. Div.), certif. granted, 197 N.J. 277 (2007). Our opinion in OFP rejected substantially the same argument plaintiffs present in this appeal on the ground that any claim that an individual property has been improperly included in the preservation area should be presented to the Department of Environmental Protection (DEP) through an application for a hardship variance:
OFP's final argument is that the inclusion of its property in the preservation area is arbitrary and capricious because the property is located adjacent to a landfill, which has already resulted in contamination of drinking water in the area, and therefore, any limitation of this property's development will not further the Act's stated purpose of preserving clean water. This argument is clearly without merit and only requires brief discussion. R. 2:11-3(e)(1)(E). The stated purposes of the Act are not limited to preserving clean drinking water. The Act's purposes also include protection of the "natural resources of the New Jersey Highlands against the environmental impacts of sprawl development[,] . . . [discouragement of] piecemeal, scattered and inappropriate development, in order to accommodate local and regional growth and economic development in an orderly way . . . [and] maintenance of agricultural production and a positive agricultural business climate[.]" N.J.S.A. 13:20-2. Consequently, even if it could be shown that a limitation of development of OFP's property would not serve to preserve clean drinking water, such a limitation still could further the other stated purposes of the Act. Moreover, the Legislature was not required to consider the condition of each individual property within the preservation area in establishing its boundaries, because such boundaries are not required to "be formulated with mathematical perfection." Toms River Affiliates v. Dep't of Envtl. Prot., 140 N.J. Super. 135, 147-48 (App. Div.), certif. denied, 71 N.J. 345 (1976). We also note that if stringent limitations on development of OFP's property are not required to serve any of the Highlands Act's purposes, this would be an appropriate consideration in reviewing an application for a hardship wavier. In fact, N.J.A.C. 7:38-6.8(f) provides that in determining "the environmental impacts of the minimum beneficial economically viable use of the property . . . and the consistency of those impacts with the goals of the Highlands Act," as required by N.J.A.C. 7:38-6.8(c)(3), the [DEP] shall evaluate whether the use would, to the maximum extent possible:
1. Have a de minimis impact on water resources and would not cause or contribute to a significant degradation of surface or groundwaters. . . .;
3. Result in the minimum feasible alteration or impairment of the aquatic ecosystem including existing contours, vegetation, fish and wildlife resources, and aquatic circulation of a freshwater wetland;
5. Not be located or constructed so as to endanger human life or property or otherwise impair public ...