This opinion addresses numerous substantive and procedural issues relating to the Pinelands Commission ("the Commission").
James E. Haas, Jr. and Catherine Haas (both sometimes referred to as "Haas") own a gravel pit within the Pinelands Area in Tabernacle Township, Burlington County, New Jersey. Use of the pit commenced many years before either Pinelands or Tabernacle land use legislation was adopted. The Haas, claiming this use to be nonconforming and vested, insist upon their right to its continuance, an insistence with which the Tabernacle Planning Board, in approving their site plan application, has agreed, as has this court in an unpublished companion case. The Board's approval is now before the Pinelands Commission for review and potential denial.
On June 10, 1985, prior to the commencement of the Planning Board proceedings, Haas, as required by Pinelands legislation, filed an application with the Commission for development approval: authority to continue the use of the gravel pit. Before any development approval had been granted, however, Haas conducted excavating operations in the pit. This activity resulted in the Commission's institution of a suit on August 29, 1985, for restraints. No responsive pleadings were filed by Haas but a consent order disposing of the suit was executed by this court
on October 15, 1985. That order directed the Commission to issue a Certificate of Filing attesting to the completeness of the Haas application no later than September 20, 1985. It prohibited Haas from conducting any resource extraction operations in the gravel pit "unless and until all necessary development approvals are obtained from the proper authorities, including but not limited to Tabernacle Township and the Burlington County Soil Conservation District, and such approvals are reviewed by the Pinelands Commission. . . ."
The master plan and land use ordinances of Tabernacle Township were certified by the Pinelands Commission on September 6, 1985, thereby providing the municipality with jurisdiction over development applications in the Pinelands. The Haas application then before the Pinelands Commission was therefore transferred to the Township Planning Board for decision.
A regulation contained in the Pinelands Commission Master Plan ("CMP") permits existing resource extraction activities to continue provided certain registrations or permits were obtained prior to February 8, 1979. The Planning Board refused to apply the regulation, holding that it was unconstitutional. That determination has been affirmed by this court in Esposito, today's companion case.
The within action was commenced on August 10, 1987. It charges the Commission with various state and federal constitutional transgressions, arbitrary actions, violations of the Municipal Land Use Law, N.J.S.A. 40:55D-1, et seq. and advances a theory of estoppel. Haas seeks a judgment enjoining the enforcement of the CMP registration-permit regulation, and awarding damages, both punitive and compensatory, attorneys fees and costs as well as other equitable relief. The Attorney General moves for summary judgment dismissing the complaint. This opinion, denies that motion, but grants a partial summary judgment.
The Haas complaint claims that the registration-permit regulation adopted by the Commission and many of its procedures are unconstitutional. The procedural questions raised are particularly significant. They include the following:
1. Is the Pinelands Commission limited in its review of the development approval to the record made by the Planning Board? If not, what is the function of the Planning Board in Pinelands matters? How does the Municipal Land Use Law affect these questions?
2. What is the allowable scope of the Commission's review? Is it permitted to raise issues not raised before the Planning Board?
3. What right, if any, does a developer have to present evidence at a Commission hearing?
4. When review issues have been referred to an Administrative Law Judge for a hearing what is the scope of that judge's jurisdiction?
5. Are the rules which govern the proceedings of the Commission unconstitutionally vague?
6. What jurisdictional authority is shared, if any, by the Commission and the Superior Court?
The fact that these questions are significant does not permit this court to address them. R. 2:2-3 provides:
(a) As of Right. Except as otherwise provided by R. 2:2-1(a)(3) (final judgments appealable directly to the Supreme Court) appeals may be taken ...