Defending Planning Autonomy in New Jersey

Long-term planning efforts are difficult for government to implement. In a world where results need to be demonstrated within a 2 to 4-year election cycle, politicians usually seek short-term answers that favor development, and a demonstration of concrete results. This is why long-term planning responsibilities are often given over to independent authorities that can make the hard decisions, without being subject to electoral pressures.

Autonomy is a critical quality of these boards; without it, they can be pushed by politicians to take measures that are contrary to their charter—often regarding land use policy, open space preservation, or environmental protection. In the past few months, there have been two important decisions by the New Jersey Appellate Court that have preserved autonomy against state government efforts to usurp it.

In one case, the NJ Department of Environmental Protection had authorized a discharge permit to a wastewater treatment plant in Tewksbury Township, in the Highlands. The permit was issued without the review and approval of NJ’s Highlands Council, a requirement under the Highlands Protection Act.

Community activists (the New Jersey Highlands Coalition, the Township of Readington, the Raritan Headwaters Association and the Sierra Club, all represented by the Eastern Environmental Law Center) filed suit to block the permit, and decision was handed down this week. The Appellate Court ruled in In re Final Surface Water Renewal Permit Action NJPDES Permit No. NJ0102563, Docket No. A-5803-13T1 (App. Div. 2017) that the NJ DEP violated the Highlands Act by failing to first obtain approval of the Highlands Council. The matter will now be remanded for the NJ DEP to consult with the Highlands Council on the matter.

Last fall, the Appellate Division reached a similar conclusion in a case regarding the NJ Pinelands Commission. South Jersey Gas had brought an application to the Pinelands Commission in 2013 seeking approval to install an underground natural gas pipeline through 12 miles of protected forest area, and they sought a Memorandum of Agreement from the Commission that would have allowed the pipeline despite its non-conformity with the Pinelands’ Comprehensive Management Plan. The application went to a vote of the full Commission, and was denied. Two years later, South Jersey Gas filed another application for the pipeline with the Commission. This time they argued that review of the Pinelands Commissioners was not required; that only the Commission’s Executive Director needed to review and approve the application. Over objections of several Commissioners, the NJ Deputy Attorney General representing the Commission opined that the applicant was correct, and the application did not require review by the Commissioners. When the Executive Director subsequently approved the application, several community activist groups (including the Pinelands Preservation Alliance, and the Sierra Club) filed an appeal. Here, again, the Appellate Division ruled [In re Petition of South Jersey Gas Company, 447 N.J. Super. 459 (App. Div. 2016)] that the law requires review and approval of the Pinelands Commissioners in order to determine conformance.

These rulings were good outcomes that strengthen good long-term land use policy. Regional Plan Association strongly supports the independence of the Pinelands Commission, the Highlands Council, and the other regional boards and commissions so critical to successful long-term planning in our region.

Note: The author is also a NJ Pinelands Commissioner and a Trustee of the NJ Highlands Coalition.
Photo: New Jersey Highlands, Nathan McLean 

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