MORRISTOWN (11/16/05) -The Highlands Water Protection and Planning Act survived the first of three Morris County challenges to its constitutionality in Superior Court here yesterday. It was the first challenge to the controversial the law since its passage last year. There are two other lawsuits pending in Morris County and three others in the rest of the state.

Judge Theodore Bozonelis dismissed the suit which was brought by OFP principals Harry Olstein and Guglielmo D’Urso, owners of a 95 acre tract in Washington Township. The tract is adjacent to the now defunct Combe Fill South Landfill, a federal Superfund clean up site.

In his ruling Judge Bozonelis said, "The Highlands Act advances a vital public purpose that does not excessively interfere with a landowner’s property rights and interests" His ruling will be held in abeyance in the event of a higher court ruling.

Bozonelis, who issued a 31 page ruling in addition to his bench ruling, said the principals have options under the act they can pursue to still financially benefit from the property. OFP purchased the 95 acre tract in 1989 for $830,000. Brian Mulligan, OFP attorney, said in January the property was worth about $7 million without development restrictions.

Among the options which protect OFP’s due process rights, according to Bozonelis, are offering to sell the land to the state or transferring the development rights of the property to a non preservation zone. "The public purposes of the Highlands Act outweigh individual property rights where, as here, the legislation provides protection to property owners through an administrative process to lessen the effect of land restrictions," the judge said.

The Highland bill, which was signed into law in August, 2004, affects development in 88 municipalities located in 800,000 acres in Morris, Bergen Hunterdon, Passaic, Somerset, Sussex and Warren Counties. The area is designated the "New Jersey Highlands Region" where the water resources for about 5.5 million people… more than half the state’s population, is located.

About half the region was declared a preservation area and the other half a planning area which has no new development restrictions. However, where development is prohibited in the preservation area development rights may be transferred. OFP’s land is in the preservation area.

Mulligan had questioned the constitutionality of the law and called it "an unjust taking of OFP’s land without compensation." Further, he said, the law’s retroactivity stipulation is unfair in that OFP missed getting an exemption from it due to bureaucratic delays. He said he might appeal Bonzonelis’ decision if his client is forced to wait until the middle of 2006 for a remedy.

The 15 member Highlands Council must meet a June, 2006 deadline to develop a regional master plan and regulations for waivers, transfers of development rights and state acquisition of regulated properties.

The State Attorney General’s Office defended that action brought by OFP, as it does in all actions involving state interests.

Washington Township approved an OFP development plan in 1999 for a 26 single family home subdivision. The developer, at the time, was in court with the township for an extended period over building restrictrions but finally reached a settlement. It then received all the necessary construction permits except one, for a potable water permit. It was delayed over a missing local official’s signature. The application was re-submitted on March 26, 2004. However, the Highlands Act, when passed, had a retroactive provision that all permits for major developments had to be in hand by March 29, 2004, the day the Highlands Act bill was introduced in the State Senate for a project to get an exemption.