Laptop Battery Gov. James E. McGreevey's war on sprawl moved from rhetoric to regulation last week when he announced a new rule that sharply curbs development around 15 bodies of water, including nine reservoirs. But before the regulation becomes reality it will have to survive a court of law.
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Thinkpad Builders are deciding the best way to legally attack the regulation, and experts say a court challenge is all but inevitable.
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Microsoft "We're meeting with our clients regularly and I think in the next couple of weeks final decisions will be made," said Henry Hill, a lawyer who represents many of the state's major builders. "It's very unlikely they're going to just walk away from this."
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Laptop Computers Advocates on both sides of the argument agree that the stakes of the expected court battle are enormous. If builders lose, McGreevey would have the legal go-ahead to unleash similar regulations on a grand scale, giving teeth to the strict "smart-growth" map he unveiled in January, Hill said.
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Laptop Computer The new rule designated nine reservoirs and six streams as Category One, or C1, water bodies. The designation means that nothing can be discharged into them that worsens the water quality. The requirement would make subdivisions, which generate sewage and storm water runoff, more difficult to build.
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Desktop Computer The state says it will propose C1 status for about 40 more bodies of water, including Lake Tappan and Woodcliff Lake in Bergen County and the Metedeconk River in Ocean County. A tentative list of additional candidates beyond those 40 includes the Raritan River, the Ramapo River, the Delaware & Raritan Canal and parts of the Passaic River.
Notebooks "This is of huge consequence," Hill said. "If C1 becomes (widespread) they're really wiping out all of the available land for housing development."
Lenovo Builders have been successful in court battles at thwarting the Department of Environmental Protection's attempts at water quality regulations, including strict septic tank and wetlands rules in the 1990s.
Hard Drive LEGAL STRATEGIES
Travelstar Though no one has decided to sue over the C1 rule, builders are already considering several methods of attack, Hill said.
Gateway One legal strategy may be to argue that the new C1 designations are the DEP's way of getting into the planning business, which, Hill said, is beyond the powers of that department. Land-use planning has long been the province of the Department of Community Affairs.
Laptop Parts DEP Commissioner Bradley Campbell expects a legal challenge from builders.
Software "As someone who has been a regulatory lawyer for more than a decade, I don't believe they have much hope for success," Campbell said. "But I can't imagine the odds against them will keep them out of court."
Hard Drives Builders could also attack the regulation piecemeal, taking on each designation or trying to find other ways to build near the selected water bodies.
Electronics For example, one of Hill's clients, Pulte Homes, has been trying since 1992 to build Windy Acres, a 911-house development along the south branch of the Rockaway Creek in Hunterdon County's Clinton Township. Because the treated sewage from the development would further contaminate the creek, Pulte would not be able to build under C1 rules. But, Hill said, the company could find a way to discharge the development's waste into groundwater, or sue to connect to an existing sewer system.
Canon Another possible plaintiff is K. Hovnanian Cos., which wants to build Milligan Farm, a 292-house development on the Sidney Brook -- another new C1 designee -- in Union Township, Hunterdon County.
Desktop Pc Hovnanian spokesman Doug Fenichel said it's too early to say whether the company will sue over the designation, but it has been trying to usher Milligan Farm through the permitting process since 1988, and it's unlikely to give up now.
Desktop Computers BETTING ON THE STATE
Think Pad On the other side of the legal fence is attorney Tom Borden of the Rutgers Environmental Law Clinic, who represents citizens groups fighting both Windy Acres and Milligan Farm. It was Borden and his team who suggested that the DEP grant C1 status to the streams near the Hovnanian and Pulte developments.
Repair Borden said he liked the state's odds in any upcoming court battle. If the builders sue, the case would go straight to the Appellate Division, which has generally agreed with the state on environmental regulations, Borden said.
Data Recovery "From a legal analysis perspective, I don't think they have a strong case if it's a direct challenge to the C1 rule," Borden said.
Cisco That said, builders have been successful in court battles against the DEP in the past. A proposal by former Gov. Christie Whitman to subject more new septic systems to state scrutiny was struck down because the DEP made too many changes between the draft and final versions. An early 1990s proposal on wetlands was killed for lack of scientific backup.
Keyboard But those errors by the state in preparing the regulations were egregious, Borden said. "Here, I don't see any procedural defect," he said.
Monitor George Hawkins, a former corporate environmental lawyer who heads the Stony Brook-Millstone Watershed Association, said that if he were handicapping the fight, he would bet on the state. Barring some procedural mistake by the DEP, builders would have to show that the rule is "arbitrary and capricious" to have it overturned.
Desktop "It doesn't even have to be right," Hawkins said. "It has to be in the realm of what could be right."
Infosys By Alexander Lane
Star-Ledger - 4/27/2003
Topic: Water Pollution
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