Court ruling boosts conservation easements

   Conservation easements won an important victory when New Jersey Superior Court Judge Reginald T. Stanton ruled to enforce deed restrictions on top of Hamburg Mountain in Sussex County — at the heart of New Jersey’s Highlands region.

By:Michele S. Byers
   Conservation easements are legal agreements that permanently restrict future development of private or public lands. They are an important part of New Jersey’s campaign to preserve 1 million acres of farmland and open space.
   In the case of Hamburg Mountain, 1,240 mountaintop acres were once acquired by the state for wildlife habitat. Indeed, Hamburg Mountain is part of one of northern New Jersey’s largest remaining unspoiled forests, home to several endangered and near endangered species such as barred owls, wood turtles and cerulean warblers. As part of the Highlands region, the land plays a critical role in naturally filtering drinking water for millions of New Jerseyans.
   Deed restrictions were placed on the mountaintop land in 1986, when the state sold it at a bargain price, intending to help a struggling local ski-resort operator. These restrictions were designed to ensure the land remained protected and open to the public for conservation or passive recreation uses.
   However, the ski resort failed. The new owners, a major international ski-resort developer, soon proposed a 1,600-condominium "destination resort" — complete with golf courses, restaurants and retail shopping — on and around the largely pristine mountain. The development plans relied heavily on using the deed-restricted mountaintop acres for a golf course, and rights of way for roads and sewers servicing the development. In addition, the developer proposed using the protected acres to increase the number of condos that could be built under special local zoning laws designed to facilitate the resort.
   NJCF led a coalition of conservation groups in a lawsuit to stop the development — to preserve the scenic beauty and important natural resources on Hamburg Mountain, and to defend and ensure the integrity of the deed restrictions.
   If New Jersey won’t or can’t enforce its own deed restrictions in such a critical area, what security will there be for the hundreds of other restrictions held by private land trusts and government agencies around the state? Will our million new acres of preserved farmland and open space remain protected, or will it be safe only until local officials and developers decide a better offer has come along?
   Fortunately, the State of New Jersey agreed with us, and the court found that punching roads, sewers and other utilities through the deed-restricted land would violate the conservation protections. In addition, the court ruled the land can’t be used in calculating the number of units that could be built — meaning the developer must go back to the drawing board to come up with a new plan that respects the conservation easement.
   This court decision does not guarantee that every conservation easement in New Jersey will no longer be threatened with development. It is, however, an important affirmation that once the public pays to protect a piece of land, it has a right to expect the land will stay protected!
   For more information on conservation easements, please visit NJCF’s Web site at www.njconservation.org, or contact me at 1-888-LAND-SAVE or by e-mail to [email protected].
Michele S. Byers is executive director of the New Jersey Conservation Foundation.