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northern view from High Point trail

[8/16/11 – updates note in text]

The Appellate Division today posted two opinions on the Highlands.

Initial news reports muddy the water, so I thought I’d post links to the decisions and do a brief post on my take.

The first decision resolved a challenge to the adoption of the Highlands RMP and the Transfer of Development Rights (TDR) program.

Basically, this legal attack reflects the fact that builders and landowners have long sought to force growth into the TDR “receiving area”.

They argue that without mandatory receiving areas(of sufficient size/density to accomodate all the development potential from the sending areas), that towns will resist increased growth/density, and there will be little demand for TDR’s. With little demand, the TDR program would not adequately compensate property owners.

But the Highlands Act is clear here and the Court rejected that legal challenge to the RMP and TDR program (but, frankly, in the final paragraph of the decision, the court did essentially agree with the builders/landowners’ economic policy logic and even expressed some sympathy, in almost anticipating a takings challenge. The court almost said: “our hands are tied here until a takings challenge is sustained”). 

The Court held that the TDR program was valid – and most importantly, the receiving areas were VOLUNTARY. Haha! Now the builders/landowners know why I loath voluntary market based programs! They don’t work!

This means that the TDR program can not mandate growth. That’s a significant victory.

The second decision involved a challenge by affordable housing advocates (the Fair Share Housing Center) to adoption of the Highlands RMP and affordable housing obligations under COAH rules.

I just read the decision. This initial news story gets it wrong.

This is no legal victory for Highlands preservation or water supply protections.

[Update: the Court merely restated current law. 

Under the Highlands Act, COAH must “take into consideration the [RMP] prior to making any determination regarding the allocation of  the prospective fair share of  the [affordable] housing need of any municipality in the Highlands region.” (decision at page 2).

The Court further stated that COAH is responsible, not withstanding the Highlands Act, for determining affordable housing obligations, but must take the RMP into consideration.

The Court did not specify how COAH must take the RMP into consideration or provide ANY criteria or standards for how COAH must balance environmental factors versus affordable housing needs. So this decision has nothing to do with how the RMP effects COAH and the environment and can not be spun as a victory for the environment or the Highlands RMP. – end update].

The portions of the decision upholding the Highlands RMP were procedural straw men and will have no impact on policy.

Importantly, at a time when the Christie DEP is seeking broad power to waive rules, the Court invalidated a COAH Resolution that waived compliance (concluding that a “waiver may not be invoked to implement wholesale changes in administrative rules” (@ page 24).

The court also struck down a COAH Guidance document for calculating fair share obligations in the 88 Highlands towns.

The affordable housing obligations calculated under the struck down Guidance document were based on the Highlands RMP.

Under a Corzine EO #114 and a Council/COAH MOU, Towns that agreed to conform to the Highlands RMP were given new COAH obligations, which were calculated based on the Highlands RMP. It turned out that those revised RMP based affordable housing obligations were significantly less than under the prior COAH third round rules.

[Note: the key text is found on page 19, where the Court invalidates how affordable housing obligation in the Highlands was derived:

The Guidance document attached to the August 12 2009 Resolution sets forth complex formulas by which a municipality in the Highlands Region preservation area can calculate its  “RMP adjusted growth projections“.  Those RMP adjusted growth projections appear to be substantially lower than the growth projections for the Highlands Region municipalities set forth in  the revised third round rules. This document specifically states: “This RMP Adjusted Highlands Growth Projection may be used in place of the COAH Projected Growth Share Obligation pursuant to [the revised third round rules] in [a Highlands Region municipality’s] Fair Share Plan submission”. [emphasis supplied]

The Court struck down this informal process under the Guidance document, finding that it was substantive and constituted a rule that required rulemaking procedures.

[Update/clarification – the Court previously struck down COAH Guidance in its entirety in a February 24, 2011 decision.]

Reading between the lines of what went on here that the court rejected,  it seems like the Corzine Executive Order #114 set up a wink and nod process whereby COAH and the Highlands Council offered towns an “incentive” to conform to the Highland RMP by alleviating or reducing their COAH obligations.

This seems to put affordable housing and growth management as competing objectives, and allows upscale exclusionary Highlands towns to block affordable housing by using environmental protection as a pretext.

But that’s not how it is supposed to work. Affordable housing is a constitutional obligation, but it does not trump environmental regulation and must be built in a way that protects the environment. 

The Court’s decision now puts COAH in the drivers seat, as the Court said that the Highlands allocations must be done pursuant to COAH rules.

The court pushed the reset button, and has given the anti-COAH but pro-growth/anti-regulatory Christie Administration a new bite at the apple.

It will be intersting to see now how they come down: whether Christie will adopt a policy of  exclusion of affordable housing in the upscale Republican Highlands, or pursue his pro-growth/anti-Highlands regulation policy.

For the Christie, a real Sophie’s choice!

[End Note – If I didn’t make this abundantly clear, let me try again: I think it is bullshit to pit affordable housing against the environment like this. I also think it is bullshit for environmentalists to applaud a process whereby Government schemes behind the scenes to use avoidance of affordable housing as an incentives to Towns to “conform” to a land use plan. ENGO’s should not applaud when the Council schemes to “dilute” affordable housing obligations, particularly in one of the wealthiest – and whitest - region’s of the state. ]

Johanna Farms plant, Flemington NJ is source of severe odors. Not exactly “dairy fresh”

DEP Fails to Enforce Law, Even as Severe Odors Persist

Just over a year ago, I was disgusted by and wrote about a foul odor in Flemington (See: Johanna Farms Flemington Plant Upset Causing Huge Odor Problems).

The odor is acute during hot weather.

Last summer, that post generated lots of comments from neighbors of the plant, complaining of persistent odors caused by Johanna’s juice and yogurt waste processing. Interestingly, the comment section at Wolfenotes became a means of informing and organizing residents.

The post prompted main stream media coverage in the Hunterdon County Democrat (see: Awful smell in Raritan is due to sewer problem at Johann food plant) and Gannett’s My Central Jersey (see: Johanna foods admits being the source of foul air in Flemington

For whatever reasons (probably the end of summer heat), the odors seemed to have subsided, or at least I thought so.

But they’re back again this summer!

Again this year, several residents recently have filed complaints with DEP that the odor is bad – I drove by yesterday and the stench was almost all the way to Shoprite.

Here are a few examples of residents’ concerns:

I CANNOT thank you enough for this article. You did an outstanding job! My husband and I have been sickened and, quite frankly, embarrassed by this odor for the past two weeks. It seeps into our home overnight and by the morning I cannot get it out. Even when the weather is cool enough to open up the house overnight and FINALLY turn off the A/C, we can’t. The smell is too awful to allow that. I will also be calling the phone numbers you published, as well as DEP staff

I am a resident in flemington and live right next to Johanna Farms and I think it is a shame for all of our kids in the neighborhood to have to stay inside and play on their summer vacation. This happened several years and Johanna Farms I believe did receive a nice fine you think that they would put a fix to it. People that have pools cannot even enjoy sitting outside and swim with their family or friends. I had a family picnic scheduled this weekend with family and had to cancel it because you cannot sit outside and enjoy the beautiful weather. Hopefully this will be fixed soon and never should happen again

Bill, fantastic reporting! If only our elected officials (and some of the paid journalists) would make HALF the effort to address a problem that has existed long before my 15 years of home ownership started here.

I have already filed a complaint with the Raritan Twp Board of Health and they told me I was the first complaint! …and this after the first 2 weeks of the stench (I am a Dayton Rd resident receiving the full blast).

It amazes me that our elected officials take NO action on this ANNUALLY occurring issue (some years worse than others). Dayton Rd annually always gets a week or two, although not this bad, which we tolerate because of its usually shorter and less intense tenure and the fact that engaging government to do anything always proves to be a life long effort (!).

The lack of compliance and enforcement id galling. I am not familiar with dairy production waste but, I am reasonably confident that systems exist to properly manage the waste so as to capture the gases and recycle them as fuel for the plant (not unlike modern chicken facilities – look into it!). In addition, I will wager that there are “green” funds available from the state and/or feds and/or privately to finance such a recapture/energy project.

Thanks for your help and lets hope our efforts in forwarding this to our neighbors finally gets some real attention from the people that should already be on this.

It is now 2011, and there is still an odor in the town. We noticed it about a month ago. Where we live, the air smells like cat urine, but closer to the Johanna farms plant it smells like decaying flesh. We had been wondering for a while what the smell was and who to call. After reading your article we plan to call the DEP. Has anyone else noticed the smell this year? We posted something on Yahoo a few weeks ago in response to someone elses post about it, but Yahoo deleted the postings.

I have just moved here in the Flemington South Estates and we are ALARMED by the stench. I haven’t even unpacked yet and I don’t know that I am going to. I have already called the 1-877-Warn-Dep # and gotten a case #. First thing tomorrow I am going to call (973) 656-4444 to report it locally to the DEP. I am also calling the Raritan and Flemington Board of Health and Hunterdon County and I am ready and willing to sign a complaint. Who else is willing to step up and be counted? Let’s get a lawyer and let’s start legal action. I cannot believe the amount of money people pay here in mortgages, rents and taxes and this stench is ok???? This is the foulest of toxic odors. Even the girls who work at Rita’s last night complained about the stench. Let’s join forces and get this taken care of. The billboard in Flemington says, – you’re going to love it here and so far I HATE it and regret ever setting foot in this town. Stand up people of Flemington and Raritan and fight for your town. It’s a beautiful place that smells NASTY and is hazardous!

What is going on at Johanna Farms tonight? I just called the DEP Hotline 1-877-927-6337 and hope that my neighbors are doing the same! Ladies and gentlemen, did we buy homes in this area so that we can never open our windows or gag as we walk out of the front door? Even the Shoprite smells. The odor is completely out of control! If it is bothering you as well, please file a complaint with DEP. Surely there is something we can do to stop this

I have been advising people to file complaints with DEP – but obviously, more organized and forceful action is needed to pressure DEP to enforce DEP permits and State Air Pollution laws.

Waste treatment technology exists to stop the odors. Johanna must install modern technology.

You should not be forced to live with smells from Johanna!.

So, to my friends in Flemington, here are some additional things you could do:

• organize yourselves into a local group “Stop the Stink in Flemington” ought to get their attention
• write letters to the editors of local papers
• contact State legislators and ask them to intervene with DEP
• threaten a boycott of Johanna products if they don’t upgrade their treatment system and fix the problem immediately
• hold a protest event – with signs – during rush hours on Rt.  31 just outside the plant. Invite media
• attend Raritan Township Committee hearings and ask for their support in pressuring Johanna and DEP to enforce the law
• explore lawsuit options

Good luck – and let me know how I can help!

If you keep the heat on Johanna and DEP, you are sure to win!

Preservation Based Land Use Reforms & Momentum Hijacked by Property Rights Radicals

Last week marked the seventh anniversary of enactment of the landmark Highlands Act.

I am not going to repeat the litany of problems now facing honest implementation of the Act that have been manufactured by the Christie Administration and are now being flogged by political partisans.

Instead, I want to note even more deeply troubling concerns that will be harder to overcome than defined technical planning and policy problems.

The “property rights” movement is on the ascendance.

Worse, this Lazarus-like rise comes just at the moment when it appeared that those radicals finally had been defeated and rendered a fatal blow in this state.

Since passage of the Act, the Regional Plan was adopted and the Act survived federal and state legal challenges.

The Highlands Council earned the respect and engagement of local governments, while managing to expand broad based public support for land preservation and water resource protection.

All this political and legal momentum suggested that we had turned a corner and the radical property rights movement was finally dead in NJ.

They were beaten in the court of public opinion, they lost legal challenges in federal and NJ State courts, and were politically marginalized if not neutered.

But, Governor Corzine’s failure to appoint Council members effectively allowed Governor Christie to change all that.

Christie was given the opportunity to attack the Highlands Act (using slogans and a false pretext) and appoint people who do not support the Act’s basic preservation approach, and outright oppose the land use, growth management, and water resource policies of the Act.

Ironically, the Governor did this by hijacking the progressive principles and rhetoric of “fairness” and “equity”.

Supporters of the Act and the media never called out the Governor on this, and thereby let him get away with it.

The radical landowner equity driven “fariness” issue is consistently narrowed, conflated, and mis-reported as one of compensation.

The word “compensation” for “equity” implies something honestly earned and fairly owed.

This is the opposite of “entitlement” or “welfare” programs, which carry strongly negative connotations as subsidies that are not earned and are “doled out” by government.

Could you imagine attacks on Highlands landowners and corporate speculators as being “on the dole” and seeking “welfare” and handouts?

When the debate is allowed to be framed as being about “fair” “compensation”, the radical property right people win.

But that is not the case – and this battle has very little to do with and surely is NOT just about compensation – or just compensation.

This is because the fairness and equity advocates mistakenly strongly believe that Highlands and DEP regulations “take” their property without just compensation in violation of the Constitution.

This belief fits the classic definition of ideology: impervious to evidence and immune to reason and persuasion in light of competing arguments and facts.

Based on this mistaken and radical ideological belief, the “landowner equity” faction therefore strongly OPPOSE those regulations and the “jack booted” government agencies (DEP and Council) that implement them.

So the “radical “property rights” people – often a front for corporate speculative development interests – hide behind the “landowner equity” issue.

They are allowed to appear to merely support popular programs, like Green Acres open space funding. 

But in practice, this faux “equity” issue translates into regulatory rollbacks, gutting of enforcement, funding cuts, government promotion of economic development, and forms of political attack (in some places this includes harassment or terroristic assaults on government workers).

It would be nice if ENGO’s and the media could focus on the radical property rights agenda backing the “compensation” word and begin to defend progressive principles like “fairness and “equity”.

Preservation advocates should not surrrender those words, which creates a vacuum that enables political cover under use of the slogans “equity” and “compensation”.

All preservation advocates need to do is cite the “equity” policy in the State Plan (see page 110) and many other related NJ public policy documents.

The State Plan recognizes many forms of  “equity” – e.g. sweat equity, environmental justice, housing, educational, transportation equity, et al – and expressly defines “equity” in social terms.

The policy goal is about equitably sharing benefits and burdens among all people of the state.

Lots of equity is being ignored – so why are Highlands Landowers getting all the equity focus? 

I assume that the radical property right folks would find NJ’s policy of social equity downright socialistic!

But ENGO’s must not be intimidated by that atack – throw it back in a property rights advocate’s face. 

Ask them whether a corporate financial speculator is a real farmer and has established “sweat equity” in a parcel of land!

Ask if subsidized landowners (agricultural property tax breaks) and developers share the benefits (profits) of land development, or share an equitable burden of all the local property tax increases (services, schools, etc) and water pollution treatment costs that development imposes on the community.

The State Plan uses a broad definition of “social equity” to capture the far narrower landowner economic equity.

Financial compensation to landowners, only for disproportionate impacts, is narrowly conceived as a form of mitigation, not a repalcement of 100% of speculative value of land.

This term “equity” has a far broader meaning that individual property rights. And the bundle of property rights are far broader than speculative or market real estate value.

The policy debate on these issues has become so narrow as to be essentially meaningless.

So even the words themselves have been so distorted and narrowed that it amounts to a hijacking!

Suggest folks read Orwell’s classic essay: “Politics and the English Language” for the implications of hijacked words.

[Full disclosure: I staffed Governor McGreevey’s Highlands TaskForce and represented DEP on the legislative workgroup that drafted the Highlands Act.]

Duties Have Direct Impact on Former Clients’ Fortunes; Ethics Review Requested

[Update: 11/5/11 – I learned yesterday in response to another OPRA (the third in this case), that in response to our ethics review request, DEP Assistant Commissioner Jan Kozinski filed recusals on August 10, 2011 for Saul Ewing law firm, Waste Management, and First Energy, including their Portand (PA) coal power plant (the target of recent DEP petition and EPA action).See this for Kozinsi recusal documents. More to follow. End update]

Update: 8/9/11 – See Mike Symons at APP Capitol Quickies: Environmental watchdog presses for recusal review

This case illustrates a least two things:

• lack of sensitivity to ethics and transparency by the Christie DEP;
• the dominance of corporate interests in and influence on the Christie DEP.

Jane Kozinski, NJ DEP’s New Assistant Commissioner for Environmental Management, is a lawyer that previously represented corporate polluters that have business before NJ DEP, among them Waste Management Inc. Her former law firm, where she was a partner, even scrubbed its website of her bio and portions of a journal article she co-authored, we assume to mask those facts (we saved and posted the original bio page).

Yet neither Kozinski nor DEP see any need for an ethics review or recusal from DEP decisions involving Kozinski’s prior clients.

PEER has petitioned the State Ethics Commission to review the matter and require that Kozinski publicly disclose all prior clients with business before NJ DEP and comply with the mandatory recusal requirements in Commission regulations. See below for details and documents.

News Releases

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For Immediate Release: August 8, 2011
Contact: Bill Wolfe (609) 397-4861; Kirsten Stade (202) 265-7337

POLLUTERS’ ATTORNEY SEES NO CONFLICTS IN TOP JERSEY ECO-JOB — Duties Have Direct Impact on Former Clients’ Fortunes; Ethics Review Requested

Trenton — A new top official at the New Jersey environment agency formerly was an attorney for some of the biggest polluters in the state but has not recused herself from handling matters related to her former clients, according to agency records released today by Public Employees for Environmental Responsibility (PEER).   PEER today asked the state Ethics Commission to review the case and decide to what extent this official must avoid involvement with former legal clients.

On July 7, 2011, the Department of Environmental Protection (DEP) named Jane Kozinski as its new Assistant Commissioner for Environmental Management which oversees air quality, solid and hazardous waste management, and environmental health and safety technical and regulatory programs.  Up until 2009, Kozinski was a partner at the Princeton law firm Saul Ewing LLP where she represented corporate clients on issues arising under federal and state environmental laws, including the Clean Air Act, hazardous waste laws and New Jersey’s Spill Act – all areas under her new purview.  Kozinski’s clients included corporations such as Waste Management Inc., which requires permits issued by her office.

On August 1, 2011 (the day Ms. Kozinski assumed office), New Jersey PEER Director Bill Wolfe filed a request under the Open Public Records Act asking for any ethics disclosure forms, including recusals that Assistant Commissioner Kozinski had on file at DEP.  On August 4th, DEP responded that it had no recusals on file.  The only responsive document found was an ethics disclosure form in which Kozinski stated that she currently had no outside activities that might present a conflict.  That form ended with a notation by the DEP legal ethics officer which read “No ethics review required.”

“The state ethics law says public officials must ‘avoid conduct which is in violation of their public trust or which creates a justifiable impression among the public that such trust is being violated,’ stated Wolfe. “State officials should not be in a position to help former clients, especially on matters in which the clients’ profits are in conflict with protecting public health.”

State ethics laws require recusals when state employees worked on any “official matter” in a non-official capacity, such as a private lawyer.  Recusals are also required where an official has any “personal interest, direct or indirect” which might impair evenhandedness.  PEER is asking the state Ethics Commission to direct Ms. Kozinski to keep her former law clients at arms length.

“Without these rules, corporate polluters can insert their lawyers into state service to service them and screw us,” Wolfe added, noting that Kozinski advised clients how to evade the state pollution regulations she is now supposed to enforce.  “This is like putting a mob lawyer in charge of the Untouchables.”

In recent years, New Jersey has been tarred by pay-for-play scandals where corporations have bought their way into state decision-making, especially in regulation of wastes and toxic materials, the very issues now under Kozinski’s control.

###

See the OPRA response on recusals

Read the PEER request for an ethics review

View Kozinski bio removed from her firm’s website

Look at her article advising how to sidestep waste regulations

Note her representation of Waste Management of New Jersey

Examine pay-to-play dominance of New Jersey toxics program

Back in June, we lamented a huge lost opportunity – idealistically seeing the Obama’s “Advanced Manufacturing Initiative” as a clean energy means to “pivot” from an austerity agenda to a green jobs agenda.

We wrote:

Again, this is a huge missed opportunity, because Obama could have really used this initiative as a way to pivot from his economic austerity (budget deficit dominated) agenda driven by Wall Street finance and Republican Teabaggers, to a major New Deal like Keynesian  jobs and domestic investment program, and political response to: 1) Depression Era unemployment; 2) huge infrastructure deficits; and 3) tremendous renewable energy opportunities.

Little did we think about the rhetorical devices we used (i.e. “pivot“).

Because now, in the wake of the deficit hostage deal, it looks like the “Obama pivot” has become all the rage!

Last week, driving the nascent beltway conventional wisdom and rhetoric, the Associated Press wrote this: Analysis: Obama pivots to new string of problems

But, as Princeton professor and NY Times columnist Paul Krugman notes, unless there is some honest reflection and fundamental change in Obama and what Krugman calls “policy elite” thinking, the much anticipated “Obama Pivot” to a jobs agenda is really looking much more like a divot.

Krugman reminds us that not only has the focus on deficit and austerity been all wrong, the emerging Obama pivot program is likely to be “symbolic” – making Obama “look ridiculous” – and not even close to the New Deal leadership and programmatic initiative that is required. Krugman wrote:

Earlier this week, the word was that the Obama administration would “pivot” to jobs now that the debt ceiling has been raised. But what that pivot would mean, as far as I can tell, was proposing some minor measures that would be more symbolic than substantive. And, at this point, that kind of proposal would just make President Obama look ridiculous.

The point is that it’s now time ” long past time” to get serious about the real crisis the economy faces. The Fed needs to stop making excuses, while the president needs to come up with real job-creation proposals. And if Republicans block those proposals, he needs to make a Harry Truman-style campaign against the do-nothing G.O.P.

This might or might not work. But we already know what isn’t working: the economic policy of the past two years” and the millions of Americans who should have jobs, but don’t.

Amen, bro.