TRENTON — In a blow to builders in New Jersey, a state appeals court panel said environmentally sensitive areas of the Garden State remain off-limits to development under the state’s water quality regulations. The decision, authored by Judge Anthony Parrillo and released Wednesday, was hailed by environmentalists as a much-needed protection of the state’s ever-shrinking open space. "It’s a...
Workers are seen building homes in South Brunswick in this file photoTRENTON — In a blow to builders in New Jersey, a state appeals court panel said environmentally sensitive areas of the Garden State remain off-limits to development under the state’s water quality regulations.
The decision, authored by Judge Anthony Parrillo and released Wednesday, was hailed by environmentalists as a much-needed protection of the state’s ever-shrinking open space.
"It’s a great victory because it turns back the builders’ attempt to pave over the last greatest areas of the state," said Tim Dillingham, executive director of the American Littoral Society. "We are in the fight for the last remaining environmentally sensitive areas of New Jersey’s landscape. These rules are very strong legal protection for the most sensitive of those areas."
The decision upholds recent amendments to the state’s Water Quality Management Planning rules that builders say amount to land use regulations over which the state Department of Environmental Protection has no authority.
Environmentalists say it makes the state’s most environmentally sensitive areas unattractive to builders by prohibiting dense development.
David Oberlander, attorney for Bi-County Development Corp. which challenged the amendments, said he will likely ask the state Supreme Court to hear the matter.
"We were very disappointed," Oberlander said. "We felt the DEP had gone well beyond the scope of its legislative authority. The court gave free rein to the DEP to regulate beyond the scope of the authority that had been delegated to it by the Legislature."
Bi-County, which has sued the DEP and some towns in the past over development issues, challenged two DEP regulations: one that prohibits the extension of sewer lines into environmentally sensitive areas and another that limits the amount of nitrates leached from septic systems to under 2 milligrams per liter.
Bi-County contended the sewer extension prohibitions amounted to a land use issue that should be addressed by individual communities.
"We disagree," Parillo wrote for the three-judge panel. "The challenged rule regulates the extension of sewer lines in environmentally sensitive areas, which the DEP undeniably is authorized to promulgate." The "collateral effect" of limiting the density of development "does not transform the rule into an unauthorized land use regulation," the decision says.
The rules grew out of a major push by the state to map locations that should be protected from development because they are wetlands, natural heritage sites or habitats for threatened or endangered species of wildlife.
But Oberlander said "hundreds of thousands" of those off-limit acres are not environmentally sensitive and haven’t been declared that by the Legislature.
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