HCA plans federal lawsuit against Highlands Act 01.15.2007 Northern New Jersey farmers, landowners seek to protect loss of equity and private property rights By Tamara Jean Scully  AFP Correspondent OXFORD — The Highlands Conservation Association Inc. (HCA) has formally objected to the constitutionality of the proposed Highlands Water Protection and Planning Act. The Highlands Council released its Draft Regional Master Plan (DRMP), which it was required to develop under the act, on Nov. 30. The HCA, following the draft release, publicly announced that it had retained the law firm Kilpatrick Stockton to launch a challenge of the act in Federal Court. The president of the HCA is fifth-generation Warren County farmer, Devlen Mackey. Other leaders of the organization are farmers David Shope, Deborah Post, Susan Buck, Jim Kelsey and Jeff Broadhurst, along with Apple Mountain Golf Club owner Drew Kiszoniak. What exactly are the reasons behind the HCA’s outrage regarding the act? According to the HCA, how will the act, which the Highlands Council has stated is designed with the protection of a viable agriculture in mind, negatively impact northern New Jersey’s remaining farmers? There has been much media focus surrounding the loss of “equity” and “private property rights” expressed by HCA members opposed to the Highlands Act. At times, some supporters of the act have portrayed this group of about 70 outspoken farmers and landowners — the group is open to any “impacted citizen” in the area covered under the act — as caring only about the monetary value of their land investment, at the expense of emergent environmental issues. In reality, it is more complex than that. Underneath the concerns of loss of property rights and values are other interconnected issues that the current agricultural community in New Jersey has struggled to bring into focus for the non-farming public. These issues involve the realities of farming — which is a business and needs to make a profit in order to survive, just like any other business- and the changes that increased regulations would bring to the already — precarious farming sector in the Highlands region. “The No. 1 problem remains the loss of equity, simply because it takes away most of the capital base that we depend on for financing and for financial security,” said Buck, a farmer and one of the HCA’s organizers. “I don’ t know a single farmer who was planning on selling his farm to a builder for a big development. But we do need collateral for loans, as I can vouch for having been denied a loan because my property value is now so low.” Development potential means collateral. Land without the ability to be developed — no matter how prime its agricultural soil — doesn’t carry as much monetary value. This is a serious issue for farmers whose major investment may be in the ownership of their lands. Buck also said the Farmland Preservation and the Green Acres Programs have given farmers who do need to sell the land “another buyer” aside from developers, and that since the inception of these programs, “most (farmers) opted for those despite the fact that the prices were lower.” Another point of contention as declared by the HCA is the myriad of mandatory restrictions the act places on farming activities, all in the name of protecting the water supply by preserving the environment. “We need the right to work free of excessive regulations,” Buck said. And farmers should get credit for the stewardship that they already do to protect and improve the land through its agricultural uses — without the government mandating it. “To people like me, to ‘protect’ means to be sure that no harm is done. And I know that I have done a great job protecting all that I am responsible for. My land is productive again, the stream on it is crystal clear, and the forested part is healthier than ever and teeming with wildlife. I don’t know a farmer who doesn’t feel the same pride in what he has ‘protected’ over the years,” Buck said. According to the HCA, the many new layers of government regulations imposed by the act will severely impact their agricultural operations. The loss of the use of land around buffer areas surrounding streams, vernal pools, wetlands and other environmentally sensitive areas will result in a considerable amount of land being taken out of production on many farms. The impervious coverage restrictions will prevent needed farm infrastructure from being built and will compromise the ability of the farmer to profitably farm. Required conservation plans could potentially be too expensive for the farmer to implement. Concerns over water allocation permits are legitimate ones in a business that depends on having water available to irrigate the crops and provide to the livestock. And while limits on developing any prime agricultural soils would seem to be good for farmers — by assuring that these lands always stay productive for growing food — the HCA points out that these restrictions could make some farms virtually worthless as they could not grow, adapt to the market, or support on-site housing for the farmer or other infrastructure for the farm. “This law has such onerous regulations that we will literally be frozen in time culturally and technologically because we can’t build anything and we can’t change anything,” Buck said. “No business can survive that, least of all agriculture, which in New Jersey and elsewhere is changing rapidly. “How can something that creates another layer of bureaucracy and over 1,000 pages of regulations possibly promote agriculture?” Buck asked. The restrictions, the HCA states, are severe, and although some agricultural exemptions exist, they still will vastly impact the agricultural industry, not only here in New Jersey, but potentially across the country as this legislation could help set legal precedents. “Farming is a business. Just because we may still be able to farm after the Highlands Act does not mean that we will be able to turn a profit,” Buck said. “We are not serfs, and we cannot be forced to keep farming at a loss because our land is no longer saleable for what we owe on it.” The DRMP is open to public comment during the next few weeks. While members of the HCA have attended all of the Highlands Council public meetings and have participated in technical advisory committees during the plan’s development, they feel that all of their recommendations regarding agricultural provisions were ignored, Buck said. While they will continue lobbying for changes to the act, they now feel the only recourse to protect their livelihoods, property and constitutional rights is to take legal measures to have the act repealed. The seeming disconnect between the Highlands Council and the HCA have drawn attention to the plight of agriculture in northern New Jersey. The HCA adamantly contends that agriculture is not promoted by the act. Yet the Highland Council said in its release that the act is being designed so that a viable agriculture will be protected. While they are working from different angles and have different agendas, both groups have verbalized their desire to keep New Jersey farmers farming. While neither side may hold all of the answers, an open dialogue discussing the real needs of a viable farming economy has begun in a very public forum. To find out more about the HCA, visit their Web site at: www.highlandsconservationassociation.org, or write P.O. Box 96, Oxford N.J. 07863. The Highlands Water Protection and Planning Act can be viewed online at: www.highlands.state.nj.us