How Green Will the Garden Be?

Sunday, August 28, 2005

By LAURA MANSNERUS
The New York Times

WANAQUE--

In one of his proudest moments as governor, James E. McGreevey signed the Highlands protection bill last August at the Wanaque Reservoir Dam, overlooking a valley of meadow and woodland. This August, from the same vantage point, he would see mid-rise skeletons of fresh lumber in yellow Tyvek wrapping, looking like a cluster of airport hotels.

"Coming Soon!" a billboard across the road from the dam shouts, "Wanaque Reserve."

To those counting on the legislation to shut down building in the heart of the New Jersey Highlands, the sign announcing Wanaque Reserve, 755 new condominiums and town houses, is a taunt. To those who would build, it is more of a last gasp.

In a state that saw galloping development even before the current real estate boom, the Highlands Water Protection and Planning Act was meant to keep it away from the more than 850,000 acres of mountains and foothills that cut through seven northwestern counties. Rivers and reservoirs there feed drinking water to the east, to roughly half the state's population, and they are vulnerable to contamination from development. The act places strict controls on a little less than half of that space and provides for a master plan, which doesn't yet exist, for the rest.

There is little dispute that for the 415,000 acres that are supposed to be closed forever to new subdivisions and shopping malls, the Highlands Act will choke such projects off - eventually. Even the Sierra Club's New Jersey director, Jeff Tittel, who has called for an immediate moratorium on building, said that "the era of the big condo development will be over."

But, as Mr. Tittel is the first to note, it is not over yet. Projects that were in the pipeline are now rising from the ground. Others are before the Department of Environmental Protection, awaiting approval. Exceptions in the law allow small-scale development that will add up.

Some large-scale plans received exemptions from the law, the biggest being the one granted Pulte Homes for Wanaque Reserve, under a grandfather provision allowing those that had at least one state permit by March 29, 2004, when the legislation was introduced. There are more awaiting the outcome of legal fights over the essential issue in the Highlands: whether this land of reservoirs has enough groundwater for everyone who wants to live there.

At the same time, the Highlands Council, appointed last year to draw the master plan for development throughout the Highlands, is weighing incentives for towns in the approximately 442,000 acres outside the restricted area to protect what is still pristine and build on their already-developed land.

The results will determine how much more populated this slice of the Appalachians will become.

Many here say the Highlands are already crowded. With more than 800,000 people in about one-sixth of the state's land, the area is more densely populated than 47 states and, according to the task force that Mr. McGreevey appointed to assess the need for regulation, its land was being consumed at the rate of 5,000 acres a year.

The northwest counties were under pressure particularly from developers who would "put 30 or 40 McMansions on a ridge line" for buyers willing to pay for the scenery and endure an hour's commute, said James W. Hughes, the dean of the Edward J. Bloustein School of Planning and Public Policy at Rutgers University.

Given the pressures from the east, Mr. Hughes said, "if we zoned the Highlands for half-acre single-family homes, you'd have massive movement out of Essex, Hudson and Union into those counties."

In the year since the Highlands Act scratched that possibility, it is not clear how much new development has been proposed; the Highlands Council is collecting data from the 88 towns in its jurisdiction. And while subdivisions are forbidden in the protected area, owners may build on single lots.

Fending Off an Old Foe

Aversion to new development was bubbling well before the Highlands Act. In West Milford, for example, which borders Wanaque in northern Passaic County, voters rebelled against the town's approval of Eagle Ridge, a proposed town-house development by the building company K. Hovnanian, which had been granted one permit.

Having ejected the township council majority that supported the project, and electing replacements who resolved to fight it, residents have now turned it into a test of the Highlands Act: how far will the state will go to make sure new development will not deplete local water supplies?

Officials of the Department of Environmental Protection heard from residents at a public hearing early last year. "We had 100 people, and 99 said we didn't have enough water," said Doris Aaronson, a resident who has fought the project. The only speaker supporting the project, she said, was the owner of the 72-acre tract, not yet sold to Hovnanian.

In April, department officials said they were not satisfied with Hovnanian's water testing. The builder sued, accusing the Commissioner Bradley M. Campbell of the Department of Environmental Protection of a "penchant for political pandering" that was causing unjustified delay. (The exemption available to the project under the Highlands Act may expire in October.) Under court order Mr. Campbell has until Sept. 6 to act on the application. Mr. Campbell has been on vacation and was unavailable for comment, his office said.

While Hovnanian's testing found an ample water supply for its 280 town houses, a local environmental group, Skylands Clean, commissioned a stud that found the builder's estimates to be much too high.

Residents say wells are running dry all over West Milford. "Almost everyone in the area has groundwater and no access to the reservoirs," said Ross Kushner, the director of the Pequannock River Coalition. "We get water from cracks in solid rock. This is a microcosm of the whole Highlands."

The Highlands Council, while it has no authority over the permits, agreed - at least to the extent of urging Mr. Campbell not to approve Eagle Ridge until the council finishes its master plan.

Adam Zellner, the council director, said: "There are 20 Eagle Ridges out there, and there are 1,000 projects out there a little smaller than that. So you've got to be sure. You've got to be right or you're going down a slippery slope."

Grandfathered projects will probably bring several thousand more houses and condominiums, Wanaque Reserve among them, to the preservation area.

Waiting for the Other Shoe

But the much bigger unknown is what will surface in the "planning area," the half of the Highlands that is not subject to the preservation law. The local authorities have approved big subdivisions that will mean an addition of some 5,000 houses and condominiums.

Developers will also, presumably, be able to take advantage the state's new "fast track" law, which allows expedited permits from the state, although its effective date was postponed by Mr. McGreevey and then by Acting Gov. Richard J. Codey. If the Highlands Act was a triumph for environmentalists, the fast-track law was its price, a political tradeoff that its architects acknowledge.

The boundaries of the preservation area were negotiated by legislators, local officials and building industry leaders. The resulting map carved out some tracts that developers were eyeing or that local officials wanted to hold in reserve. The preservation area reaches down into Warren and Hunterdon Counties in irregular fingers, so that long corridors of restricted land are bordered by corridors open to development.

When the Highlands master plan is finished next summer, towns in the planning area can change their zoning to conform to it (and receive protection from lawsuits) or ignore the new plan. Many feel they are besieged by development, including some who call the act an unacceptable incursion on home rule.

"I think what we should do is buy everybody out," said Mike King, who lives in Phillipsburg and heads a local conservation group, the Phillipsburg Riverview Organization. "To buy development rights on all this land would be cheaper than trying to provide added infrastructure."

On a drive from Phillipsburg to Hackettstown, Mr. King, sounding like a man with 10 fingers in the dike, pointed to a dozen sites where housing had been approved.

"They would plop down 3,000 or 4,000 people and say it's an infill," he said, indicating the grassland along Interstate 78, an extension of a bird habitat area in Pohatcong that his group has preserved.

Along the Musconetcong River, he stood in Point Mountain Park in Lebanon Township, which is in the preservation area, and pointed to Mansfield Township on the other bank, which is not. The Mansfield planning board approved a subdivision of 226 houses near the river, which, Mr. King said, will send dog walkers and picnickers into the wildlife habitat on the other side.

The Warren County planning director, David Dech, said there had been no boom in the planning area within the county. Since March 2004, there have been 154 housing units in "major projects," typically defined as 4 or 5 lots, approved, in contrast to almost 300 a year in the seven previous years. Still, some 2,000 have been proposed.

Others say development is too slow. "There's not any provision anywhere in New Jersey, even before the Highlands Act, to address the housing needs of the state's working-class households," said Patrick O'Keefe, the chief executive of the New Jersey Builders Association. "When the legislation was before the committees, there were in the Highlands communities 100,000 young adults who were on the threshold of starting their own careers and households. The act effectively said, 'There will not be housing in this region for you.' "

Meanwhile, according to Mr. Hughes of Rutgers, demand will increase in the planning area, where housing prices began to climb in the 1990's as more towns changed their zoning to require larger lots. "There are going to be people willing to cash out and go to North Carolina or Virginia," he said.

The state and local governments have promised millions of dollars to buy land and easements in the preservation area and to set up a program to transfer development rights. But Mr. Hughes said that while homeowners would reap big profits from selling, farmers could suffer "a wipeout."

This month, one of them spoke at a Highlands Council session. Andy Drysdale, who ran a dairy farm in Chester Township and later became a land surveyor, said the Highlands Act had killed his proposal to subdivide his 16 acres and retire on the proceeds. He had waited too long, he told the council.

"We hear that at so many meetings," Jack Schrier, the council's vice chairman and a Morris County freeholder, said later. "Sometimes it's heartbreaking."

At his house that afternoon, Mr. Drysdale and his wife, Lois, described the dismemberment of the farm his grandfather bought in 1924. Other members of his family sold pieces of it to developers over the years, Mr. Drysdale said, while he retained his 16 acres. His plan to subdivide it cost $60,000 in engineering and legal fees.

Now, a few months from his 70th birthday, he said, "I'm self-employed, and I don't have a pension."

The meadow behind the neat, shingled house is now surrounded by more than a dozen enormous houses splayed across the hillside, locking in the Drysdales' land.

The Drysdales' lawyer, James Knox, said "there could have been dozens and dozens of exemptions and carve-outs to soften the blow" for farmers and small landowners in the Highlands Act.

"But there was no such intent," Mr. Knox said. "If part of your social strategy is to make northwest New Jersey a rich person's enclave, this works beautifully."

For the Drysdales, the good news is that the lots split off from the farm in the 1990's have sold for upward of $500,000 and the houses on them are now changing hands for $1 million to $2 million. So the sale of their house and its 16 acres would buy a nice new one, though maybe not in the Highlands.