Advertisement

April 24, 2014

Appellate Division Narrowly Construes Highlands Act Exemption

A recent decision of the Appellate Division of the Superior Court highlights that statutory exemptions from legislation designed to protect the environment will be narrowly construed.  At issue in Intellect Real Estate Development v. DEP was the scope of a “grandfather” exemption under the Highlands Water Protection and Planning Act (the “Highlands Act”).  The Highlands Act exempts development that received on or before March 29, 2004:  (a) an approval under the Municipal Land Use Law; “and” (b) one of three DEP water supply or septic approvals, if applicable to the development; “or” (c) a DEP Freshwater Wetlands or Flood Hazard Area Control Act approval if the development does not require any of the permits listed in subsection (b).

DEP and Intellect offered differing interpretations of the somewhat confusing interpolation of “and” and “or” in the exemption provision of the statute.  DEP contended that to be exempt an applicant must satisfy the municipal approval provision of subsection (a), and also satisfy either subsection (b) or subsection (c), if applicable.  Since Intellect did not receive the necessary municipal approvals by the statutory deadline, DEP claimed Intellect was not exempt from the Highlands Act.  Intellect asserted that an applicant is entitled to an exemption if it satisfies subsections (a) and (b), or if it satisfies subsection (c).  Narrowly construing the statutory exemption, the Court resolved this ambiguity by adopting the restrictive interpretation promoted by DEP.

The Highlands Act is but one of many environmental statutes that include “grandfather” or other exemptions.  This recent decision is a reminder that courts often go out of their way to narrowly construe these exemptions.

© 2014 Giordano, Halleran & Ciesla, P.C. All Rights Reserved

About the Author

Paul H. Schneider, GIordano Law Firm, Litigation Attorney
Shareholder

Mr. Schneider, co-chair of the Litigation Practice Area, focuses his practice in environmental, redevelopment, land use, regulatory, real estate and affordable housing law, and litigation. Mr. Schneider also handles a wide variety of redevelopment matters as well as corporate and commercial litigation. In addition to handling major litigation before both the state and federal courts and the Office of Administrative Law, he has extensive experience before the New Jersey Supreme Court and the Appellate Division.

732-741-3900

Boost: AJAX core statistics

Legal Disclaimer

You are responsible for reading, understanding and agreeing to the National Law Review's (NLR’s) and the National Law Forum LLC's  Terms of Use and Privacy Policy before using the National Law Review website. The National Law Review is a free to use, no-log in database of legal and business articles. The content and links on www.NatLawReview.com are intended for general information purposes only. Any legal analysis, legislative updates or other content and links should not be construed as legal or professional advice or a substitute for such advice. No attorney-client or confidential relationship is formed by the transmission of information between you and the National Law Review website or any of the law firms, attorneys or other professionals or organizations who include content on the National Law Review website. If you require legal or professional advice, kindly contact an attorney or other suitable professional advisor.  

Some states have laws and ethical rules regarding solicitation and advertisement practices by attorneys and/or other professionals. The National Law Review is not a law firm nor is www.NatLawReview.com  intended to be  a referral service for attorneys and/or other professionals. The NLR does not wish, nor does it intend, to solicit the business of anyone or to refer anyone to an attorney or other professional.  NLR does not answer legal questions nor will we refer you to an attorney or other professional if you request such information from us. 

Under certain state laws the following statements may be required on this website and we have included them in order to be in full compliance with these rules. The choice of a lawyer or other professional is an important decision and should not be based solely upon advertisements. Attorney Advertising Notice: Prior results do not guarantee a similar outcome. Statement in compliance with Texas Rules of Professional Conduct. Unless otherwise noted, attorneys are not certified by the Texas Board of Legal Specialization, nor can NLR attest to the accuracy of any notation of Legal Specialization or other Professional Credentials.

The National Law Review - National Law Forum LLC 4700 Gilbert Ave. Suite 47 #230 Western Springs, IL 60558  Telephone  (708) 357-3317 If you would ike to contact us via email please click here.