NJ Supreme Court upholds Highlands Act

by: Anthony F. Della Pelle
15 Dec 2008

The New Jersey Supreme Court recently held that an inverse condemnation did not occur in a takings case involving the application of the New Jersey Highlands Act with respect to a development tract owned by OFP, LLC in Morris County.   According to the Supreme Court, which upheld an earlier opinion by the Appellate Division of the New Jersey Superior Court, the developer did not exhaust all of its administrative remedies in developing a 93-acre tract in Washington Township that is within the Highlands Preservation Area.   OFP had contended that a series of communications between it and the New Jersey Department of Environmental Protection were sufficient to conclude that a taking of its property occurred via the regulatory effect of the Highlands Act.  However, the Court concluded that these communications could not be construed as a substitite for the formal takings “waiver” procedure established by the Highlands legislation, and found that the developer was required to make application for such a waiver before it could establish a viable inverse condemnation claim.

McKirdy & Riskin’s Edward D. McKirdy, www.mrod.law,  participated in the appeal as counsel to the Pacific Legal Foundation, an amicus curiae in the matter.

The Court’s decision is located at:  http://www.judiciary.state.nj.us/opinions/supreme/A-76-07%20OFP%20v%20State.pdf