This is an inverse condemnation action brought on verified complaint and order to show cause. I note at the outset that it should have been captioned in the Law Division. N.J.S.A. 20:3-5. Orleans Builders and Dev. v. Byrne, 186 N.J. Super. 432 (App.Div.1982). Nonetheless, this court will decide it to avoid an unnecessary transfer. Cf. R. 4:3-1(b). The present motion is one to dismiss for failure to exhaust administrative remedies and to state a claim upon which relief can be granted. Since matters outside the complaint itself have been submitted the court has treated the motion as one for summary judgment. At least, in part, the case is ripe for such disposition.
Before proceeding the court notes that this case is not an appeal from the final decision or action of a State Administrative Agency under R. 2:2-3(a)(2). The case does not challenge the Pinelands Commission's procedure in adopting its second Comprehensive Management Plan or any decision or action under that plan. The action asserts that in certain material respects the Comprehensive Management Plan as embodied in N.J.A.C. 7:50-1 et seq; 29 N.J.R. 2011 constitutes a partial taking of plaintiff's property. That allegation is cognizable here. Pfleger v. N.J. State Hwy Dept, 104 N.J. Super. 289 (App.Div.1968). Cf. Montclair v. Twp. of Hughey, 222 N.J. Super. 441 (App.Div.1987); Asbury Park Bd. of Education v. Murnick, 224 N.J. Super. 504 (App.Div.1988).
Plaintiff alleges that he is the owner of a 216.5 acre farm in Shamong Township which has been in his family since 1902. He presently raises and sells sod and the farm is mortgaged for over $200,000. Situate thereon are a two family house and related barns and outbuildings. The balance of the land is farmland or wooded. Over the years plaintiff has watched as zoning regulations applicable to his farm have become more and more stringent.
The gist of plaintiff's complaint is that with the Commission's adoption of its second Pinelands Comprehensive Management
Plan (CMP) in November 1987 the State crossed the line between permitted regulation of private property and a partial taking thereof. Plaintiff would agree to submit to the Commission a development plan using the density permitted under a provision of the CMP -- one house per 40 acres. N.J.A.C. 7:50-5.24(a)3 He argues that the required exaction from him of a deed restriction against use for other than agricultural purposes as a condition of approval for such a plan constitutes a partial taking of his property for which just compensation should be paid.
More specifically, plaintiff alleges that prior to the enactment of the Pinelands Protection Act (Act) N.J.S.A. 13:18A-1 et seq, effective June 28, 1979, he was able, under Shamong's zoning ordinance, to subdivide his farm into about 200 building lots. Following the enactment of the Act and the promulgation of the first CMP his farm was included in the Agricultural Production Area whereunder the density of allowed housing was reduced to one home per ten acres. Under that CMP plaintiff began a development plan for a 17 lot "farmette" subdivision. Before those plans got very far, however, the Commission adopted a second CMP which identified certain permitted uses in Agricultural Production Areas including the following:
Residential dwelling units at a gross density of one unit per 40 acres, provided that the units shall be clustered in accordance with (c) below. N.J.A.C. 7:50-5.24(a)3.
Subparagraph (c) provides:
No residential dwelling unit shall be located on a lot of less than 3.2 acres: provided, however, that a municipality shall require the residential density assigned pursuant to N.J.A.C. 7:50-5.24(a)3 to be clustered on one acre lots . . . The remainder of the parcel not assigned to individual residential lots shall be permanently dedicated for agricultural uses through recordation of a restriction on the deed to the property. N.J.A.C. 7:50-5.24(c)
The court finds, as plaintiff alleges, that these provisions effectively reduce the number of possible houses on his farm to five, clustered on one acre lots, and require a permanent dedication of his remaining property -- nearly 98% of it -- to farmland. Furthermore, the other clauses of N.J.A.C. 7:50-5.24 are as stringent
as subparagraph (a)3. Section 5.24(a)(1) allows dwellings on 3.2 acres but the occupant must be "culturally linked" to "the essential character of the Pinelands," 5.32(a)3i-iii, and "cannot have developed a dwelling unit within the previous five years." 5.32(a)2. Section 5.24(a)2i-iv permits one house per 10 acres but is conditioned upon active farm use . . . Another condition, as in the case of "culturally linked" housing, requires that a residential lot must not have been "subdivided from the property within the previous five years." 5.24(a)2v. These provisions relating to housing and the other uses permitted in the Agricultural Production Area*fn1 effectively limit the development of vacant land to agricultural uses or uses closely allied therewith or accessory thereto.
The Commission's affidavits, submitted by its Assistant Directors for Planning and Management and for Development Review, track the almost 10 year history of the comprehensive regulatory scheme adopted by the Commission under the aegis of the Act. Beginning in 1982 a significant issue under discussion was "whether, and under what conditions, non-farm housing should be permitted in Agricultural Production Areas." Stokes Affidavit, Paragraph 5. Apparently, under the first CMP "the Commission experience with the agricultural housing provision suggested that it was evolving into a 10 acre subdivision
requirement with no guarantee that farm uses would continue after construction." Stokes Affidavit, Paragraph 6. The Commission staff recommended a two-prong approach to ...