Another Christie Highlands Act Opponent Released by Judiciary Committee
“We are putting people on that council whose job it is to overthrow, overturn and subvert the Highlands Act.” Senator Bob Smith 5/19/11
[Update: 5/25/11 – Surprise, Surprise! Star Ledger reports: New appointees in N.J. Highlands Council plan to balance property rights]
Today, the Democrat controlled Senate Judiciary Committee reviewed Governor Christie’s nomination of Roxbury Mayor James Rilee to serve on the Highlands Council.
I was not expecting much, because two weeks ago, despite harsh testimony opposing Christie nominees and strenuous objections by Senator Smith and others, the Committee approved a Christie nominee who was “180 degrees diametrically opposed” to the Highlands Act (see Tom Johnson, NJSpotlight:
At this point, there can be no doubt that Christie is seeking to weaken the Act via appointments to the Council, because he can not repeal or amend the popular law in the Legislature.
In a YouTube right wing pandering moment, Christie notoriously falsely claimed that the Act was “based on a lie“ and has claimed that the Act took private property and extinguished development rights without fair compensation, so his agenda is no secret.(see “YouTube Wars – Christie Caught Lying on the Highlands” and this video).
The only question at this point is whether Senate Democrats will stand up to the Governor and defend the Act and the drinking water for over 5 million NJ residents, or side with the developers in gutting the Act by stealth.
Listening to the hearing two weeks ago, there was no doubt that the deal was in.
Judiciary Chairman Scutari and members of the Committee openly admitted that they were bound by a political agreement with “leadership” to approve the Governor’s slate of nominees, facts be damned. It is highly unusual for such political deals to be publicly acknowledged and so crudely and openly discussed.
Today, Senate President Sweeney sat in for the start of the hearing to reinforce that same message.
But Sweeney didn’t stay very long.
Regardless, Sweeney and Senator Sarlo both voted (arrogantly, in absentia, having not even listenened to the testimony) in favor of Mayor Rilee, despite serious reservation and opposition by 5 fellow Democratic members of the Committee. Sweeney and Sarlo’s votes enabled Rilee’s approval (which was released by the Committee without recommendation, which keeps all options open for a Senate floor vote).
I had not planned to testify, but after listening to Mayor Rilee dissemble in response to a series of detailed questions from Senator Smith, I felt obligated to do so.
Below is my testimony – the shit really hit the fan after I questioned Rilee’s veracity and integrity, in light of the oath he swore that his tetimony would be “true, correct, and complete.” Rilee simply was not credible in his evasion of questions regarding his statements on the record opposing the Act.
While Senator Weinberg described this as “reticence”, I saw it as a violation of his oath and a lack of personal integrity becasue he failed to openly state and defend his views on the Act, which are matter of public record.
The parts of my testimony about questioning the veracity and integrity of the nominee caused strong pushback by Senators Beck and O’Toole. If you’re interested, you can listen to the whole thing here – my testimony starts at 2:04
This is all extemporaneous, so please bear with me!
I am Bill Wolfe, Director of NJ PEER – that’s an acronym for Public Employees for Environmental Responsibility.
By way of background, I was [staff to] the Highlands Taskforce and involved with drafting the Highlands Act. I am going to make a few remarks just on the testimony I heard from the nominee.
Obviously, the charge of this Committee is to advise and consent. You are a co-equal branch of government with the Executive, and this is the Executive’s nominee.
So, the Executive’s intent is paramount here, in proposing a slate of candidates that some of the other witnesses have spoken about.
I would remind you that the Executive has very strong powers on the Highlands Council to direct action there. He has a veto over the minutes and he’s got the Department of Environmental Protection (DEP).
You need to consider your advise and consent role in the context of how the nominee will influence your legislation, because the [Highlands] Council itself has very wide discretion in making case-by-case determinations and in terms of crafting the Plan.
The Act provides enormous discretion to the Council, and therefore the judgement of the nominee is paramount and the focal point of you advise and consent role.
His judgement and his views are the criteria under which you evaluate him.
It’s not – Senator Smith made prior remarks about the need for a smoking gun – that’s not the standard you should apply. That’s clearly way too low a standard. We should not have to have someone opposed to the [Highlands] Act to be a disqualifying factor.
On the other end of the spectrum, I believe Senator Smith made a comment that the Governor won the election and [therefore] the burden [for this Committee] to reject the Governor’s candidate is high.
But that’s not the case because this Governor did not campaign on an agenda to roll back the Highlands Act or undermine the Act in any way. So there is no democratic imprimatur on that policy objective that the Governor himself has said, in public hearings.
He has publicly said that he has major problems with “takings”, and that’s what I want to talk about the nominee’s testimony.
I believe that the nominee is not in the mainstream on 4 specific points of law, science and public policy, and therefore should be rejected out of hand. And I want to be very clear here.
1. He used the word “taking“. The Courts have ruled that the Highlands Act is not a taking.
For someone now – after courts have ruled on the question – to publicly come forward and offer testimony to a legislative body that the Highlands Act constitutes a “taking” shows somebody’s views that are out of the mainstream.
That’s a property rights view. Its a radical view. And it’s not the law of the land.
Courts have spoken on the issue. So on that ground alone, it’s disqualification.
2. He talked about the need and preference for “home rule”.
Home rule is a fiction. Municipalities [powers] in this state are created by tthe Legislative body. The Legislative body has created the Highlands Act and taken away “home rule” powers.
So again, to come forward and talk about “home rule” is outside the mainstream and the balance of powers under the Highlands Act. It reflects a fundamental misunderstanding of the Act.
Therefore, that statement alone, tells me he doesn’t understand – particularly with respect to probing questions of Senator Smith with respect to his role as a Mayor and a [local] Planning Board member.
Because those questions – Plan conformance and the details of those statements – dealt with who had the power, the political and legal power, to make very important decisions.
His testimony, upon reflection, did not show an understanding of the nature of the powers that: a) a municipality has; or b) that he will now have on the [Highlands] Council.
So that is really troubling, and again, it is out of the mainstream view on a very important issue.
3. The third point is with respect to science.
There were statements made here by the nominee about “science” that were not just cavalier and laid back, but clearly troubling.
Because the scientific basis – right now in the environmental policy realm, the key point is to attack the science, and just say it’s “pseudo-science” or “sounds like science” to discredit the science as a way around getting to the underlying [policy] issue.
If you make a statement that the delineation of the Preservation area lacks a scientific basis, the burden is on you to support that statement.
If you are a public official, you can’t just arbitrarily make a statement in public. You can’t have no basis for making a statement or to support a Resolution before a local governong body.
He clearly has understandings and opinions.
And that goes to the veracity of the nominee – and [whether] you can trust this man’s integrity.
Because he has clearly expresssed preferences and he swore an oath today. I heard the word “complete”. If staff could repeat the oath, I beleive the word “complete” was used.
So it’s not just honesty, it’s complete disclosure – complete transparency.
And I don’t believe he’s met that standard.
So, again, the basis to approve is lacking.
4. The last point – the delineation of the Preservation Area, which was done by statute. That’s over.
So, if you have problems with the delineation of the Preservation Area, you have problems with the Act.
And the earlier testimony of other panelists on the environmental side said that a disqualifying factor should be if you don’t support the Act you will be tasked with implementing and enforcing.
5. And the final point – this does not come just in a Gubernatorial political context.
There is litigation on the Highlands Act.
The core protection of the Act is what is known as the septic density standard.That’s a DEP standard.
Under the Act, all the Highlands Plan land use elements must be in conformance with the DEP regulations.
The DEP septic density standard thus becomes the lynchpin – it has an 88 acre density standard in forested areas.
That standard is under litigation by the NJ Farm Bureau. The DEP has filed a request that the Court postpone hearing of the case. The DEP Commissioner has signaled his intent to revisit that standard, which has survived an Administrative appeal and been upheld by an Administrative Law Judge opinion and is the law of the land and duly promulgated regulation.
The Administration has publicly stated that they are going to relax that rule, and that’s an important element as well.
So if you’re going to come up here and talk about science and attack the science of the [Highlands] Plan, you ought to at least have the respect for this Committee and be prepared to defend those remarks.
Thank you. I’d be glad to answer any questions you may have.
Senator O’Toole: [@2:12:32]…but Sir, through the Chair, when you question an individual’s integrity, and come as close to saying he lied and committed perjury under oath, that is something you really should think twice about before you do it. He said “listen to the oath… read back the oath”. The simple inference drawn from that characterization is that there is some violation, some impingement, some failure of his to testify completely. I haven’t seen that. I haven’t heard that from any of the Senators here. And I share Senator Beck’s caution that when you say that you are trampling on a person’s reputation, which just comes around once. And to say that without backing it up, I think you have to be really, really careful.
Wolfe – I believe that I backed it up – through the Chair – respectfully, I [interupted]…
O’Toole – – I disagree
Wolfe – that’s fine.
Chairman Scutari – that’s the end of that dialogue. Let me just say this. I don’t necessarily have a problem with you questioning it, it may not be true. I mean, the Governor calls people liars all the time. I don’t think that’s … I guess it’s not out of bounds when its coming from the Executive office. Yet you can make that accusation [interupted]
Wolfe – for the record, I did not call anybody a liar.
Scutari – No one is saying you did.
Wolfe – there were legitimate questions as to whether the nominee was fully disclosing his viewpoints and he was sworn under an oath to do so. And therefore, when you asked a series of repeated, very precise questions that you dd not get answers to, then the candidate could either say: ‘I did not have a basis for that statement’ or ‘I mispoke’, or ‘I no longer have that view’, or he could answer the question about what his views were. The fact that he did not – on a series of quesions, it wasn’t just one, it was a series of questions – and therefore the pattern that was expressed was not just the political finesse that any candidate for a political office is supposed to do, and probably was advised by the Front Office not to be particularly kind to detailed questioning, that’s the kind of guidance you get. And if I were in your shoes, I’d call him back and ask : was he coached and counseled by the Governor’s Office about how he should testify? Â Those are legitimate questions. This is an Executive and Legislative brancch – you should have a tension here, not just an embrace.
Scutari – Thank you very much for your testimony.
Wolfe – thank you, Sir.
[end]
Update: 5/21/11 – discovered a small error in my testimony – I corrected it for the record:
Mr. Chairman:
I recently listened to my testimony before the Judiciary Committee on May 19, 2011 concerning the nomination of Mr. Rilee to serve on the Highlands Council and discovered a minor inadvertent error I would like to correct for the record.
I testified that I was “on the Highlands Taskforce”. That is in error. I was DEP staff to the Highlands Taskforce.
I stand by the remainder of my testimony.
Thank you.
Bill Wolfe, Director
NJ PEER
Got it wrong again! The courts did not rule the Act was not a taking. Go read the cases. Bozonelis ruled that there was not violation of due process or equal protection (14th Amendment). He ruled that he was not hearing a ripe takings case and would not rule on “takings” (the Fifth Amendment) until a case was filed that exhausted the administrative remedies to ripen a takings case. No ripe takings case has been filed to date. No takings case has been heard. No judge has ruled on a Highlands Act taking. When the greenies intentionally lie or don’t get their facts right…you make yourselves look like bigger dopes.
@Highlands Farmer
Highlands Farmer – It is you, not I, that are incorrect on the facts and the law.
The US Supreme Court reejcted certiori on a Fith Amendment takings claim, see:
http://www.highlands.state.nj.us/njhighlands/news/pres/scotus_070710.pdf
@Highlands Farmer
Farmer – sorry I hot the send button too soon.
Don’t tell anone, but maybe DEP Commissioner Bob Martin will grant a “waiver” to the DEP Highlands Act regulations harship waiver taking procedures.
To implement N.J.S.A. 13:20-33(b)(3), the DEP has adopted a detailed regulation that governs review of an application for a hardship waiver to avoid the taking of property without just compensation. N.J.A.C. 7:38-6.8.
Due to recent change in law, the DEP proposed “waiver rule” can now be substantively changed on adoption. So my bet is that DEP will make that clear upon adoption as applying to Highlands hardship waivers.
In fact, in my testimony at the DEP waiver rule public hearing, I noted that the proposal contradicted the current regulations’ hardship waiver criteria, standards and procedures, so DEP has precisely this issue on their plate.
BTW, you wouldn’t be Debra Post, would you?
If so, you might want to stick to LTE’s where editors can’t fire back!
@Highlands Farmer
Again apologies for citing DEP waiver rule proposal without a supporting link.
Very sloppy practice. Only in comments. My bad:
http://www.nj.gov/dep/rules/proposals/030711b.pdf