On certification to the Superior Court, Appellate Division, whose opinion is reported at 201 N.J. Super. 105 (1985).
For vacation of certification -- Chief Justice Wilentz, Justices Clifford, Handler and Garibaldi, and Judges Antell, Pressler and King. Opposed -- None. The opinion of the Court was delivered by Pressler, P.J.A.D., temporarily assigned.
[103 NJ Page 690] We granted certification, 102 N.J. 380 (1985), to review a judgment of the Appellate Division according the Planning Boards of the Townships of Egg Harbor and Hamilton the right to request the New Jersey Pinelands Commission (Commission)
to reconsider, on hearing, a Pinelands Development Approval granted by the Commission's Executive Director for an extensive planned unit development proposed by John Madin, agent for Lord Land Development International and Castlehard Development International. Because the issues raised by the petition for certification have been rendered moot by regulatory developments that occurred after the Appellate Division's judgment, we now vacate our grant of petition for certification.
The facts of this dispute in the context of applicable state and federal legislation were set forth in detail in the Appellate Division opinion, 201 N.J. Super. 105 (App.Div.1985). In brief, the Pinelands National Reserve, consisting of approximately one million acres in the southern portion of the state, was established by the federal government in 1978. The federal legislation, 16 U.S.C.A. § 471i, designed to protect the ecologically and environmentally sensitive Pinelands area, called upon the State of New Jersey to establish a planning body to develop and administer a comprehensive management plan (CMP) governing all development in the area. New Jersey's interim response, Executive Order 71, was followed by the 1979 enactment of the Pinelands Protection Act, N.J.S.A. 13:18A-1 to -29, which established the Commission and charged it with the obligation of formulating a CMP. N.J.S.A. 13:18A-8. The Commission adopted a CMP effective January 14, 1981, codified as N.J.A.C. 7:50-1.1 to -8.1, pursuant to the Administrative Procedure Act, N.J.S.A. 52:14B-1 to -7.
The root of this controversy is the provision of the Act requiring municipalities located within the boundaries of the Pinelands to amend their master plans and zoning ordinances in conformance with the minimum standards of the CMP and to obtain Commission certification approving the proposed revisions prior to their adoption. N.J.S.A. 13:18A-12(b). Upon a municipality's failure to comply with this directive within a year after adoption of the CMP, the Commission is authorized to "adopt and enforce such rules and regulations as may be necessary to implement the minimum standards as contained in
the comprehensive plan as applicable to any such . . . municipality." N.J.S.A. 13:18A-12(c).
The authority thus granted to the Commission was primarily implemented by N.J.A.C. 7:50-4.11 to -4.17, inclusive, which comprised Subchapter 4, Part II of the CMP (Part II rules), entitled: "Development Review -- Development in Areas Without Certified Local Plans" (Part II). These rules, all since repealed or amended, as explained infra, transferred the local land-use approval power from the planning agency of the so-called uncertified municipality to the Executive Director of the Commission, who was authorized by N.J.A.C. 7:50-4.16 to issue a Pinelands Development Approval upon his finding that the proposed development satisfied the minimum standards of the CMP and was "otherwise consistent with the objectives of the Federal Act, the Pinelands Protection Act, and this Plan." At the time of the developers' submission of this PUD application for development in Hamilton and Egg Harbor Townships, both of those municipalities were still uncertified. The developer accordingly proceeded pursuant to the original Part II rules, obtaining the Pinelands Development Approval here in issue.
N.J.A.C. 7:50-4.17, as originally adopted as part of the Part II rules but since repealed, provided:
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.*fn1
The Planning Boards of Hamilton and Egg Harbor Townships, objecting to various aspects of the developer's PUD application, sought reconsideration by the Commission pursuant to former N.J.A.C. 7:50-4.17. The Commission, however, denied the request, concluding by resolution that ...