West Milford --  Developer Trammel Crowe Residential hit a major snag on February 23rd in their quest to build 109 town homes on 27 acres off of Dockerty Hollow Road and Union Valley Road. Skylands CLEAN members and attorney Michael Kates were on hand to question the validity of a preliminary approval on the project, which was issued in April of 1997 and lapsed in May 2000. After two extensions, the approval lapsed for good in May 2002.

The preliminary approval is critical because it provides the basis for the issuance of a Highlands Exemption, without which the project cannot be built.

Planning Board Attorney Bryant Gonzalez discussed the issue with both attorneys during the hearing. Gonzalez expressed concern that the Planning Board giving a final site plan approval while there was question about the validity of the preliminary approval and the Highlands Exemption attached to it would be setting the Planning Board up for a future lawsuit. He asked to hear reasoning from both the TCR attorney and CLEAN's attorney as to their opinions on the question before the board made a decision on whether to proceed with the application.

The TCR attorney argued that the law was clear that preliminary approvals do not lapse, that their main value is to protect from zoning changes, but once the preliminary approval ends, it does not mean the project approval ends unless the township ordinance says so.

CLEAN's attorney argued that this project was approved in 1997. Eight years later we have the Highlands Act and it is a new world. The Highlands Act specifically states that if a project loses its local approvals, its Highlands Exemption also lapses. He also pointed to case law which supported his case.

TCR's attorney argued further, stating that he applied for a final approval prior to the end of his preliminary approval. However, the final site plan approval was incomplete and required waivers to go forward. The Board denied those waivers in July 2002, basically stopping the application for preliminary approval at that point.

The project flies in the face of the Highlands Act. The 109 homes would be built on just 9 acres of property, and requires that sewage be pumped over a ridge line to the Old Milford sewage treatment plant. Neighboring property must be condemned for the sewer line to be laid. Easements are also required to build the water line, which requires two wells. Currently, only one well is drilled and approved by NJDEP. The Highands Exemption is also reliant on the water permit, and the exemption letter stated that if the town's water permit were not renewed by May 31, 2005, the project's exemption would end.  It is not clear whether or not this requirement has been met.