Kaplan sues Highlands

From the Express Times:

Builder fights Highlands

A lawsuit filed Friday in Superior Court in Warren County seeks to invalidate the state Highlands preservation act on the grounds that it blocks the construction of affordable housing.

The complaint was filed by Kaplan Co., a major housing developer that is frustrated it cannot follow through on plans to build 132 age-restricted homes, including 14 affordable units, on a 47.5-acre property on Old Allamuchy Road in Independence Township.

The complaint asks the court to permit construction to move ahead under the so-called builder’s remedy, which allows a developer to build projects that bring needed affordable housing to a municipality. More than 100 builder’s remedy lawsuits have been brought against municipalities in recent years but the Kaplan complaint marks the first time the legal tactic has been used against the state government.

Named as defendants are the Highlands Water Protection and Planning Council, the Department of Environmental Protection and the Council on Affordable Housing.

The complaint alleges the Highlands Act violates the state Supreme Court’s so-called Mount Laurel Doctrine — which holds municipalities statewide have an obligation to provide affordable housing — as well as the constitutional and statutory rights of the poor, elderly and middle-income households, and the property rights of landowners.

Carl S. Bisgaier, the Cherry Hill-based attorney for Kaplan, argues the property was arbitrarily included within the boundary of the Highlands preservation area, making development impossible despite the fact construction is permitted under Independence’s zoning ordinance, is a part of the township’s affordable housing compliance plan and is consistent with its master plan.

Bisgaier said the property was also located within a DEP-approved public water and sewer service area until the Highlands Act banned additional sewer and water line construction near the property.

“Through the adoption and implementation of the Highlands Act, the state has usurped municipal control over land use in the Highlands preservation area,” Bisgaier said. “As such, the constitution obligates the state to assess the housing needs of the poor and to adopt a realistic plan to meet the constitutional mandate of providing a realistic opportunity for the creation of affordable housing within the preservation area and the Highlands region. Here the state has done neither.”

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