On appeal from the New Jersey Pinelands Commission.
Botter, Antell and Furman. Furman, J.A.D.
Orleans Builders and Developers (Orleans) appeals from the denial of its application for a major development by the New Jersey Pinelands Commission. The constitutional validity of legislative and executive action imposing a building moratorium in the New Jersey pinelands is at issue.
In 1978 Congress amended the National Parks and Recreation Act to establish a Pinelands National Reserve of approximately one million acres in the State of New Jersey. 92 Stat. 3492, 16 U.S.C.A. § 471i. Responsibility for the development of a comprehensive management plan to protect the resources of the Pinelands was deferred to this State. According to the federal act, natural resources to be protected and preserved included ground and surface water supply and quality; endangered, unique and unusual plants and animals and, in general, the ecological integrity of the Pinelands. Upon state acceptance of responsibility under the act, authority was provided for federal grants for state acquisition of lands and waters within the Pinelands.*fn1
In response to the federal legislation the Governor of New Jersey, Brendan T. Byrne, issued Executive Order 71 on February
8, 1979. A Pinelands Planning Commission was established to develop a comprehensive management plan according to the requirement of the federal act. In recognition of the danger of continuing uncoordinated housing and other development to the natural resources of the Pinelands, the Executive Order barred state departments and agencies from granting any permit or other approval for development within the Pinelands except upon certification by the Pinelands Planning Commission. An applicant for such certification bore the burden of demonstrating that no substantial impairment to the natural resources of the Pinelands would result. Natural resources were defined as in the federal act. The Executive Order by its terms was to remain in effect until the enactment of state legislation consistent with it, until approval by the Federal Secretary of the Interior of a comprehensive management plan or until expiration of 18 months.
Four and a half months later, the New Jersey Legislature enacted the Pinelands Protection Act, N.J.S.A. 13:18A-1 et seq., effective June 28, 1979, consistent with Executive Order No. 71. That act established the Pinelands Commission and ratified any action taken prior to its effective date "by the planning entity established pursuant to the Federal Act." N.J.S.A. 13:18A-4(c). Prevention of degradation of surface and ground waters and of other threats to the Pinelands environment were set forth among the goals of a comprehensive management plan to be prepared and adopted by the Pinelands Commission. N.J.S.A. 13:18A-9. A specific deadline within 18 months for the preparation and adoption of the plan was set by N.J.S.A. 13:18A-8.
The Pinelands Protection Act imposed a moratorium on the issuance of State, county and municipal permits or other approvals for construction within the Pinelands until adoption of a comprehensive management plan, except upon approval of an application for development by the Pinelands Commission. N.J.S.A. 13:18A-4. The legislative standards governing the Commission's grant of such approval were as follows: extraordinary hardship, compelling public need or consistency with the purposes
and provisions of both the federal and state enactments and no resulting substantial impairment of the natural resources of the Pinelands. That moratorium was an interim provision only, until adoption of a comprehensive management plan. Id.
A comprehensive management plan for the Pinelands was adopted by the Pinelands Commission on November 21, 1980, was approved by the Governor on December 1, 1980, and became effective on January 14, 1981.
Under § 9 of the Pinelands Protection Act, N.J.S.A. 13:19A-10, state, county and local permits and other approvals for development within the Pinelands are barred subsequent to the adoption of the comprehensive management plan, unless conforming to its provisions. A waiver from strict compliance with the plan may be granted by the Pinelands Commission, under N.J.S.A. 13:18A-10, in accordance with rules and regulations promulgated by it:
In 1971 Orleans obtained municipal planning approval for a planned unit development on approximately 393 acres in Evesham Township, Burlington County, two miles inside of the northwest corner of the area designated in the Pinelands Protection Act as the Pinelands protection area, which is outside of and differentiated from the more environmentally sensitive Pinelands preservation area. Orleans's tract is bisected by Barton Run, a tributary of Rancocas Creek which, in turn, flows into the Delaware River. A total of 568 out of the 1,523 planned dwelling units had been built by the effective date of Executive Order 71. Meanwhile, Orleans had been granted approval by the State Department of Environmental Protection (D.E.P.) for a storm drainage and flood water management plan, which included creation of artificial lakes, to serve the entire tract.
As of the effective date of Executive Order 71 Orleans had been granted an exemption by the State Division of Water
Resources from the Division's ban on sanitary sewer connections into the Evesham Township treatment facility for sections 2 and 19 of the planned unit development. Such exemption had also been applied for and had been denied in December 1978 for the other sections on which most of the remaining 955 dwelling units were planned, except for a verbal assurance, according to Orleans, that an exemption from the ban would be forthcoming for section 1. No appeal was brought from that denial. Terrace apartments were planned on section 2, a five-acre parcel; townhouses on section 19, a 23.5-acre parcel; and commercial uses on section 1, a five-acre parcel.
The only remaining state agency approval required for sections 2 and 19 and, according to Orleans, for section 1 would have been sewer construction permits pursuant to N.J.S.A. 58:10A-6(b). With the implementation of Executive Order 71 the D.E.P. advised Orleans that it would not consider applications for such permits until the applicant had received the necessary approvals from the Pinelands Planning Commission.
Orleans did not challenge the constitutional validity of the Executive Order of February 8, 1979 in any proceeding until the present appeal. Instead, in March 1979 Orleans applied pursuant to the Executive Order for an exemption from the moratorium on state agency permits and approvals for the remaining 955 dwelling units of its planned unit development. A preliminary, nonevidentiary hearing was held on June 15, 1979 before the Pinelands Development Review Board. The Pinelands Development Review Board consisted of the Deputy Commissioners of the Department of Community Affairs, the Department of Agriculture and the Department of Environmental Protection (D.E.P.). The Review Board had been formed at the request of the Governor to process all applications until such time as the Pinelands Planning Commission was organized.
Orleans's application for an exemption was denied by the Review Board on June 22. The Review Board noted that Orleans had been denied an ...