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Fine v. Galloway Township Committee

Decided: May 25, 1983.

SHERMAN FINE, INDIVIDUALLY AND AS A GENERAL PARTNER IN F & W ASSOCIATES, A PARTNERSHIP, PLAINTIFF,
v.
GALLOWAY TOWNSHIP COMMITTEE, GALLOWAY TOWNSHIP PLANNING BOARD, JOHN ADE, GALLOWAY TOWNSHIP BUILDING INSPECTOR, DEFENDANT



Connor, J.s.c.

Connor

[190 NJSuper Page 436] This complaint in lieu of prerogative writs presents the question of whether a property owner in an uncertified Pinelands municipality must submit to a formal site plan review by the municipality after he has obtained development approval from

the Pinelands Planning Commission. This court feels that the appropriate answer is a qualified yes. The question is one of first impression and requires this court to interpret provisions of the Pinelands Protection Act, N.J.S.A. 13:18A-1 et seq., effective June 28, 1979 and its implementing regulation, the Pinelands Comprehensive Management Plan, N.J.A.C. 7:50-1.1 et seq.

Plaintiff is the owner of a 10.3 acre tract of land located in Galloway Tp., which is an uncertified municipality under the Act and Management Plan. On November 30, 1981 plaintiff obtained from defendant, Galloway Tp. a mercantile license permitting plaintiff to use his property for a flea market and farmers market. Thereafter, plaintiff was advised by the township zoning officer that he was required to obtain Township Planning Board approval before he could commence his business. The zoning officer also advised plaintiff that the Planning Board would not entertain plaintiff's application unless approval was first granted by the Pinelands Planning Commission. On April 23, 1982 plaintiff was granted conditional Pinelands Development Approval. On August 16, 1982 plaintiff made application to the township zoning officer for a building permit seeking permission to proceed with the improvements necessary to conduct his proposed flea market and farmers market. This request was denied by the zoning officer citing the need for approval from defendant, Galloway Township Planning Board.

Plaintiff then instituted the present suit for an order pursuant to the Declaratory Judgment Act, N.J.S.A. 2A:16-50, et seq. declaring that:

1. Plaintiff is not required to submit to the site plan review process of the Galloway Township Planning Board, and

2. Plaintiff is legally entitled to the immediate issuance of a building permit for the improvements necessary for his project.

The statutory and regulatory references relied upon by plaintiff are N.J.S.A. 13:18A-12(c) and (d), N.J.A.C. 7:50-3.37 and N.J.A.C. 7:50-4.13.

N.J.S.A. 13:18A-12(c) and (d) provide:

c. In the event that any county or municipality fails to adopt or enforce an approved revised master plan or implementing land use ordinances, as the case may be, including any condition thereto imposed by the commission, the commission shall adopt and enforce such rules and regulations as may be necessary to implement the minimum standards contained in the comprehensive management plan as applicable to any such county or municipality.

d. Any approval of any application for development granted by any municipality, county, or agency thereof in violation of the provisions of this section shall be null and void and of no force and effect at law or equity. L.1979, c. 111, ยง 11, eff. June 28, 1979.

Pursuant to the authority of N.J.S.A. 13:18A-12(c) the Pinelands Planning Commission adopted the following regulations for ...


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