IN RE STATE OF NEW JERSEY HIGHLANDS WATER PROTECTION AND PLANNING COUNCIL - FEBRUARY 28, 2012 DECISION.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically argued April 11, 2013
On appeal from the New Jersey Highlands Water Protection and Planning Council.
Jonathan E. Drill argued the cause for appellant Township of Greenwich (Warren County) (Stickel, Koenig, Sullivan & Drill, attorneys; Mr. Drill, on the briefs).
Dean Jablonski, Deputy Attorney General, argued the cause for respondent New Jersey Highlands Water Protection and Planning Council (Jeffrey S. Chiesa, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Jablonski, on the brief).
John F. Casey argued the cause for respondent 189 Stryker Road Associates (Wolff & Samson, PC, and Law Offices of Robert S. Dowd, Jr., LLC, attorneys; Mr. Casey and Robert S. Dowd, on the brief).
Before Judges Messano, Ostrer and Mantineo.
In this appeal, we must decide when a municipality must comply with the regulatory framework of the Highlands Water Protection and Planning Act (Act), N.J.S.A. 13:20-1 to -35, if it has chosen to join the Highlands Region planning areas. At issue is compliance with the provision that requires a municipality to obtain prior approval of the Highlands Water Protection and Planning Council (Council) before amending its municipal land use ordinance.
However, the Council, interpreting the Act, determined that the relevant area of Lopatcong was not yet subject to the Regional Master Plan (RMP) when Lopatcong adopted its challenged land use ordinance. Therefore, prior approval was not required. Greenwich appeals the Council's decision. Having reviewed Greenwich's arguments in light of the facts and applicable law, we affirm.
Appellant Greenwich Township (Greenwich) argues that Lopatcong Township (Lopatcong) was subject to this prior approval requirement when it amended its land use ordinance to permit, as a conditional use, the siting of asphalt and concrete manufacturing facilities in Lopatcong, which borders Greenwich. Thus, Greenwich argues, the Lopatcong ordinance was invalid because Lopatcong did not seek or obtain prior approval.
We begin with a summary of the Act, the RMP, and the plan conformance process, which is essential to understand the facts of the case. The Act was enacted in 2004, and "is premised on the need for coordinated land use planning and regulation to protect the important resources of the Highlands Region." N.J. Highlands Water Protection & Planning Council, Plan Conformance Guidelines (2008) (Conformance Guidelines) at 1. The Highlands Region includes Greenwich, Lopatcong and other municipalities in seven counties. N.J.S.A. 13:20-7. The Act promotes a comprehensive "regional approach to land use planning in the preservation area" and "replace[s] the existing uncoordinated system." N.J.S.A. 13:20-2. It established the Council to prepare a "regional master plan" for the Highlands Region. N.J.S.A. 13:20-6i; see also N.J.S.A. 13:20-8 (requiring Council to prepare and adopt RMP). The Council is located within, but independent of, the Department of Environmental Protection. N.J.S.A. 13:20-4.
The RMP must provide "a resource assessment" that determines sustainable development in the Highlands ecosystem, and a framework for developing policies in areas in which local governments conform to the RMP. N.J.S.A. 13:20-11. The Council adopted the RMP in 2008. The Council provides technical assistance and financial benefits to municipalities that ...