Thirteen- the number of years municipalities, property owners and developers have grappled with the Highlands Water Protection and Planning Act (“Act”).  For the 88 municipalities in the Highlands Region it has often been an adversarial and contentious relationship with the Highlands Council and the Department of Environmental Protection, the two agencies that oversee enforcement of the Act.

However, over the past 13 years we have learned some important lessons which have helped frame future development.  These include a deeper appreciation and utilization of the exemptions available under the Act.  Indeed, the most critical lesson is to always try to pursue development that qualifies for an exemption.  Projects that are exempt from the Act proceed more rapidly and in a less expensive manner.

While the Act sets forth 17 exemptions, over the past 13 years there are a few which have been relied upon more heavily than all others. Exemption #1 allows an owner to construct a single-family home on a lot that he owned before August 10, 2004 which is the date the Act went into effect.  This exemption allows the home to be built as large as the owner wants, assuming he meets all other requirements. Similarly, Exemption #2 allows someone to build a single-family dwelling on a lot that he did not own before August 10, 2004, but was in existence on that date.  However, the construction cannot disturb more than one acre of land or increase impervious coverage more than one-quarter acre.

For non-residential developers, Exemption #4 has been an incredibly effective tool.  This exemption permits the reconstruction of any building or structure for any reason within 125% of the footprint of the lawfully existing impervious coverage on the property.  In other words, this exemption allows a developer to expand a building or parking area by another 25% without first seeking another Highlands approval from the DEP.

The additional coverage must extend from the coverage already existing on the property.  It cannot be constructed on another area on the lot where coverage does not exist.  Moreover, the developer must make certain that he relies on impervious coverage that lawfully existed on the property on August 10, 2004.  This exemption is thus granted only after a thorough review of aerial photographs taken over the years and comparing them to the last approved site plan which illustrates the allowable areas of impervious coverage.  If it is found that the impervious coverage on a lot has expanded since August 10, 2004, the exemption will not be awarded or it will be based upon the amount of coverage existing as of August 10, 2004, assuming it was permitted.

Developers and owners will benefit if they are seeking any of these exemptions in municipalities that have been certified to review and approve such applications.  At the present time, there are only 25 municipalities that have been certified and that have adopted the required Highlands Area Exemption ordinance which allows them to handle exemption requests.  In such municipalities, an applicant can avoid the time and bureaucracy associated with otherwise having to file an application with the DEP.  Unfortunately, even a certified municipality is limited to only reviewing and approving 7 of the 17 exemptions under the Act. Importantly though, the three exemptions noted above are among the 7.

Of course, there are many other lessons we have learned over the past 13 years dealing with the Act.  These will be explored in more depth in subsequent articles.  In the meantime, should you need to discuss any aspect of the Act and how it may impact a project you wish to pursue, please do not hesitate to contact the Zoning and Planning department at Lavery, Selvaggi, Abromitis & Cohen.