Stunted Growth: U.S. Supreme Court Declines Review of Challenge to the New Jersey Highlands Act

The Supreme Court of the United States recently declined to review a multi-plaintiff citizen challenge to the New Jersey Highlands Water Protection and Planning Act. The case, Shope v. State, which has been floating through the New Jersey court system since April 2007, finally met its end when the Supreme Court denied the petition for certiorari on June 28, 2010.

At the trial level, the plaintiffs based their challenge on the following constitutional grounds:

  • the development restrictions and preservation area boundaries set forth in the statute violated the property owners’ equal protection rights.
  • the program initiated to transfer owners’ development rights did not adequately compensate the property owners in the Highlands conservation area.

The New Jersey courts rejected these arguments. In their petition for certiorari, Shope and his co-plaintiffs highlighted this last argument, stating that the Act resulted in a taking of their properties without just compensation, in violation of their Fifth and Fourteenth Amendment rights.

The Act, which was intended to protect the water supplies of much of northern New Jersey by placing restrictions of development in the northwestern Highlands Region, has faced opposition from property owners and developers alike. Many of the challenges to the Act have mirrored the claims brought by David Shope and his co-plaintiffs.

While the hotbed of controversy over the Act has diminished in the wake of declining property values in the current economic climate, the opposition could reignite when the economy rebounds and the economic stakes rise. Moreover, there may be a new line of “judicial takings” cases to rely on in the wake of the U.S. Supreme Court’s decision in Stop the Beach Nourishment.

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