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In re Application of John Madin/Lordland Development International for Pinelands Development Approval. Planning Board of Hamilton Township

Decided: May 9, 1985.

IN THE MATTER OF THE APPLICATION OF JOHN MADIN/LORDLAND DEVELOPMENT INTERNATIONAL FOR PINELANDS DEVELOPMENT APPROVAL. PLANNING BOARD OF HAMILTON TOWNSHIP, ATLANTIC COUNTY, APPELLANT,
v.
NEW JERSEY PINELANDS COMMISSION, JOHN MADIN/LORDLAND DEVELOPMENT INTERNATIONAL AND CASTLEHARD DEVELOPMENT INTERNATIONAL, RESPONDENTS



On appeal from the New Jersey Pinelands Commission.

Michels, Petrella and Baime. The opinion of the court was delivered by Petrella, J.A.D.

Petrella

These consolidated appeals involve challenges by the planning boards of the Townships of Egg Harbor (Egg Harbor) and Hamilton (Hamilton) to the action of the New Jersey Pinelands Commission (Commission) denying them standing and an opportunity to be heard or to object to development approvals granted by the Commission's staff in their respective communities. We hold that the planning boards have standing under the statute and that notice and hearings are required. We reverse and remand for public hearings with respect to the development plans.

I.

Before describing the underlying factual complex in this case it is appropriate to review the statutory framework within which these appeals arise. In 1978 the federal government established the "Pinelands National Reserve" of approximately 1,000,000 acres under The National Parks and Recreation Act of 1978. 16 U.S.C.A. § 471i. The first stated congressional purpose of this legislation was "to protect, preserve and enhance the significant values of the land and water resources of the Pinelands area." 16 U.S.C.A. § 471i(b)(1). Congress found

that the Pinelands were an environmentally and ecologically sensitive area "containing approximately 1,000,000 acres of pine-oak forest, extensive surface and ground water resources of high quality, and a wide diversity of rare plant and animal species, provid[ing] significant ecological, natural, cultural, recreational, educational, agricultural, and public health benefits." Id. at § 471i(a)(1). Compare N.J.S.A. 13:18A-2. Congress recognized that "the State of New Jersey and its local units of government have authority to prevent or minimize adverse uses of the land and water resources of the Pinelands area." 16 U.S.C.A. § 471i(a)(5). To assist in accomplishing the purposes of the act Congress appropriated monies to New Jersey to acquire environmentally sensitive lands and to develop a comprehensive management plan (CMP) for the Pinelands. Id. at § 471i(h).

Congress requested that New Jersey establish a planning entity which would be responsible for developing the CMP. Id. at § 471i(d). The CMP was required to include, among other things, "A program to provide for the maximum feasible local government and public participation in the management of the Pinelands National Reserve." Id. at § 471i(f)(7). Failure to conform to federal requirements for the management of the area or in the modification of an approved plan can result in funding losses and a federal claim for reimbursement. See Id. at § 471i(g).

On February 8, 1979 Governor Byrne issued Executive Order 71, pending preparation of the CMP. The order created a planning entity and imposed a development moratorium in the area defined as the Pinelands. Thereafter, the Pinelands Protection Act, N.J.S.A. 13:18A-1, et seq. (sometimes the Act), became effective on June 28, 1979. That Act created the Pinelands Commission and directed it to prepare a CMP for the Pinelands area and to impose a moratorium on all building therein except where development applications were reviewed and approved by the Commission pending completion of the CMP. N.J.S.A. 13:18A-4, -8 and -14. The purposes of the

Pinelands Protection Act are set forth in N.J.S.A. 13:18A-2. The emphasis in that section is protection and preservation of the Pinelands. Moreover, the statute recognized "that such protection will require the coordinated efforts of all relevant municipal, county, State and Federal agencies." Id. Unlike the procedures authorized in The Wetlands Act of 1970 (N.J.S.A. 13:9A-1, et seq.) and in the Coastal Area Facility Review Act (N.J.S.A. 13:19-1, et seq.), for the issuing of permits by the Department of Environmental Protection, the approach taken in the Pinelands Protection Act immerses the Commission in land use planning and zoning.

The Act requires the CMP to include minimum land use standards, maximum population densities and provide for the regulation or prohibition of various uses for specific portions of the Pinelands area. N.J.S.A. 13:18A-8 i(1). It also provides that subsequent to adoption of the CMP no development application could be approved unless it conformed to the CMP or unless the Commission decided to waive strict compliance with the CMP. Id. at 13:18A-10 c. Under N.J.S.A. 13:18A-12 a and b it was contemplated that within one year of adoption of the CMP each county and municipality in the Pinelands area would submit a revised master plan and local land use ordinance to the Commission for review. Approval of the revised plans and ordinances is made contingent upon their being in conformity with the minimum standards of the CMP.

N.J.S.A. 13:18A-12 c and d provide for the consequences of the failure of a municipality to adopt or enforce a new master plan and land use ordinance in conformity with the CMP. Those subsections read:

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.

N.J.S.A. 13:18A-12 c and d thus treat differently those municipalities which have not adopted an approved master plan or land use ordinance, or by inference those which have not succeeded in having them approved by the Commission. The Commission has adopted regulations which expand the statute. The CMP, actually adopted as the regulations in N.J.A.C. 7:50-1, et seq., defines a "certified municipal master plan or land use ordinance" as "any municipal master plan or land use ordinance certified by the Commission pursuant to N.J.A.C. 7:50-3, Part IV as being in conformance with the minimum standards of this Plan." N.J.A.C. 7:50-2.11. Under the CMP all municipalities with "uncertified" land use ordinances and master plans are prohibited from approving or rejecting development proposals. Instead, the Commission asserts exclusive authority to determine whether the proposed development is in conformance with the minimum standards of the CMP. Id. at 7:50-4.11 and 7:50-4.13. All municipalities with "certified" land use ordinances and master plans, by contrast, may pass directly on any development proposal sought to be located in whole or in part within the municipality. See id. at 7:50-4:21 to 7:50-4:33; see also N.J.S.A. 13:18A-14. The Commission is authorized to review (apparently at its discretion) any municipal approval of any application for development in the Pinelands area. N.J.S.A. 13:18A-15; N.J.A.C. 7:50-4:21 to 7:50-4:33.

With this general discussion of the relevant statutory framework, we turn now to the factual setting of these appeals and the contentions of the parties.

II.

Both Egg Harbor and Hamilton are sometimes referred to as "uncertified" municipalities because their master plans and land-use ordinances have not been approved by the Commission.*fn1

As a result of the lack of "certification" at the time the application of respondents John Madin/Lordland Development International and Castlehard Development International ("the developers") was submitted to the Commission, both municipalities were unable in the first instance to approve development applications covered by the Pinelands Protection Act. The Commission thus exercised its authority to pass directly upon the developers' application without the necessity of municipal zoning approvals. N.J.S.A. 13:18A-12 c and d.

The assistant director of the Commission, William Harrison, on February 17, 1984 approved*fn2 the developers' application for a Planned Unit Development (PUD) on 528.55 acres which lie in portions of both Hamilton and Egg Harbor. The land involved fell in what the Commission had designated as a "Regional Growth Area." See N.J.A.C. 7:50-5-13(g). The approval of the development application recited under a heading "Findings of Fact," that the developers proposed to construct 1,551 dwelling units, two hotels (one of which was to include a restaurant and bars and the other would contain a health care center and other commercial space), a community shopping center, a library, recreational facilities for the residents, and change the layout of an existing golf course. The developers also proposed to build 992,800 square feet of professional, commercial and high-tech industrial space. Approximately thirty-three acres were to

be devoted to nonresidential uses. Of the remaining acreage, 51 acres had a seasonal high-water table of 18 inches or less below the natural ground surface. The "Findings of Fact" in the approval said that: "There are existing public sewers."

The approval document recited that most of the fresh-water wetlands located on and adjacent to the parcel were undisturbed and that the developers were required to maintain a 300 foot buffer between them. Williams found, without providing specific details, that a small portion of wetlands previously affected by existing development would not be further disturbed if development were located at least 100 feet from it. Notwithstanding the fact that the developers proposed road and utility crossings of the wetlands, the assistant director also found that "[t]he applicant has demonstrated that there is no feasible alternative route that . . . will have a lesser impact" and that this would not cause a significant adverse impact. Williams likewise found that the proposed storm water drainage system from the proposed extensive development of this approximately 530 acres would result in no increase in volume or rate of storm water runoff from the parcel after completion of the proposed development in the event of a storm of the severity of a 50-year, 24-hour storm.

After further finding in general fashion that the proposal complied with the CMP's housing requirements, Williams concluded that the proposed PUD was a permitted use in a Regional Growth Area*fn3 of the Pinelands, and that the proposed development was consistent with the CMP's management standards. Fourteen "conditions" were imposed on the development proposal including a requirement for including a minimum

of 155 dwelling units which would be affordable to low-income households and 155 dwelling units affordable to moderate-income households. The approval letter's final provisions, under a heading labeled "RECONSIDERATION," stated: "Any person who is aggrieved by this determination may seek reconsideration of the decision by the Pinelands Commission within 18 days of the date of this letter by giving notice, by Certified mail, of the request for reconsideration to the Pinelands Commission." See N.J.A.C. 7:50-4.17. The notice was to include the "name and address of the person requesting the reconsideration," "application number," a "brief statement of the basis for the reconsideration request," and a "certificate of service" indicating that service of the notice had been sent to the secretary of the Egg Harbor Township Planning Board, the secretary of the Hamilton Township Planning Board, the secretary of the Atlantic County Planning Board, and the Hamilton and Egg Harbor Environmental Commissions. See N.J.A.C. 7:50-4.81(a). See also N.J.S.A. 40:56A-2.

We do not know how or based on what documents or evidence the assistant director's "findings" were made because we are unaware of any record with regard to the approval. These "findings," which were recited in a little more than one typewritten page, were presumably based on staff review of the papers submitted on the developers' application.*fn4 It appears

that the Executive Director (defined as the "Chief Administrative Officer of the Commission", N.J.S.A. 13:18A-5) under the CMP (regulations) as written may designate a representative "to perform any functions delegated" to him "pursuant to any provision" of the regulations, who would essentially thereby be given final-decision making power except where a "redetermination" request is effective. See, e.g., N.J.A.C. 7:50-4.16; 7:50-4.17; 7:50-4.27(a)-(d); 7:50-4.28(b); 7:50-4.31; 7:50-4.44; 7:50-4.53 and 4.54.

N.J.A.C. 7:50-4.15 apparently attempts to make the executive director's approval final in many instances, notwithstanding the statutory requirements of N.J.S.A. 13:18A-14 f (see infra n. 9), unless "reconsideration" is sought under N.J.A.C. 7:50-4.17, which provides:

Any interested person who is aggrieved by any determination made by the Executive Director pursuant to this Part may seek reconsideration of such determination as provided by N.J.A.C. 7:50-4.81.

Apparently no public hearing was conducted or was contemplated on the developers' application as far as we can determine. See N.J.S.A. 13:18A-15. Nor does the sparse record before us indicate that there had been any notice to the public at any stage of the matter or that the Commission made a final determination with respect to the subject development. See N.J.S.A. 13:18A-14 f, -15, -20.

Requests for "reconsideration" of the development approval were filed by Hamilton and Egg Harbor on March 6 and March 12, 1984, respectively. Hamilton contended that the assistant director's February 17, 1984 development approval was not consistent with the Pinelands Protection Act and the CMP because, contrary to the assistant director's findings of fact, there were no existing public sewers, thus potentially endangering

water quality and wetlands. It also asserted that air quality would be adversely affected and noise generated by traffic at the site would exceed the CMP standards.*fn5

Egg Harbor asserted that the wetlands located on the development site would be adversely impacted because of the lack of a proper sewerage system, that the assistant director's failure to specify in the development approval the acreage and number of dwelling units to be developed within Egg Harbor made it impossible to determine whether the application complied with the intensity of dwelling units permitted by the CMP; that in portions of the property covered by the approval the water table did not meet the standards provided for in the CMP; that the development failed to provide for proper on-site waste management as required by the CMP, and that there was no provision for the minimum middle-income housing required by the CMP.

At the time the planning boards each filed their "Request for Reconsideration," resolution 83-101, which had been adopted by the Commission on November 4, 1983, permitted "uncertified" municipalities such as Egg Harbor and Hamilton to seek Commission reconsideration of certain staff decisions. Accordingly, when Hamilton and Egg Harbor sought reconsideration, their requests were forwarded by the Commission's staff to the Office of Administrative Law (OAL) for hearings as contested cases. That resolution had provided that requests for reconsideration of staff actions by uncertified ...


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