On certification to the Superior Court, Appellate Division, whose opinion is reported at
For affirmance -- Chief Justice Wilentz, and Justices Clifford, Handler, Pollock, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by Handler, J. Stein, J., concurring. Justice Stein concurs in the result.
The central issue in this case is whether the application of state regulations that limit the use of land in an environmentally-sensitive area constitutes an unconstitutional taking of private property. The regulations strictly limit residential development on such land and require that all remaining undeveloped acreage be subject to a recorded deed restriction limiting it to agriculture and related uses. A farmer contends that the application of this regulatory scheme to his farm effects a partial taking of his property without compensation.
Hobart Gardner lived and worked for almost seventy years on a 217-acre farm that had been owned by his family since 1902. The farm is located in Shamong Township, Burlington County, a part of the pinelands region subject to the regulations. Gardner, now deceased, and his son, who lives on the farm today, cultivated sod and grain. The farm includes a two-family house, barns, and out-buildings.
When confronted with the regulations, Gardner sought compensation, claiming that the land-use restrictions resulted in an unlawful taking of his property. After the State refused payment, Gardner, on February 7, 1988, initiated this action for inverse condemnation against the Commissioner of the Department of Environmental Protection and the New Jersey Pinelands Commission (Commission), which had promulgated the regulations. Gardner also contended that the regulations constituted an unlawful exaction and a denial of equal protection. He did not assert that the Pinelands Protection Act and the
regulations otherwise are unconstitutional or invalid in terms of whether they constitute an impermissible or unreasonable exercise of the police powers in general or the zoning powers specifically. Moreover, the constitutional claims that he did assert are based exclusively on the New Jersey Constitution.
The trial court granted summary judgment for defendants on the claim for inverse condemnation, finding that the overall zoning plan to protect agriculture was a permissible exercise of the State's regulatory power, and, further, that neither the zoning regulation nor the deed restriction was an impermissible taking or exaction. 227 N.J. Super. 396, 402-06, 408, 547 A.2d 725; (Ch.Div.1988). The court permitted Gardner to advance an equal protection claim by the filing of an amended complaint, id. at 409, 547 A.2d 725, and subsequently granted summary judgment for defendants on that claim as well. The Appellate Division affirmed the judgments substantially on the basis of the lower court's reasoning. 235 N.J. Super. 382, 562 A.2d 812 (1989). This Court granted Gardner's petition for certification, 117 N.J. 663, 569 A.2d 1355 (1989). For ease of understanding, we refer to Gardner as "plaintiff" though his successors-in-interest currently prosecute the case.
The value of the unique ecological, economic, and cultural features of the New Jersey Pine Barrens, or Pinelands, has been recognized for decades. E.g., L. 1971, c. 417 (creating Pinelands Environmental Council; repealed by L. 1979, c. 111). Protection of the area, however, did not begin in earnest until Congress enacted the National Parks and Recreation Act of 1978, Pub.L. No. 95-625, 92 Stat. 3492 (codified at 16 U.S.C.A. § 471i), establishing over one-million acres as the Pinelands National Reserve. The Pinelands were the first natural resource to be protected by the innovative "national reserve" program. Designed to conserve areas of ecological sensitivity, natural beauty, and cultural importance, the national reserve
concept combines limited public acquisition of property with land-use controls in a cooperative framework involving federal, state, and local governments, as well as concerned private groups and persons. Senate Energy and Environment Committee Statement, reprinted at N.J.S.A. 13:18A-1 (Senate Committee Statement). Governor Byrne promptly issued an Executive Order restricting development in the Pinelands until appropriate state legislation could be enacted. See Orleans Builders & Developers v. Byrne, 186 N.J. Super. 432, 434-35, 453 A.2d 200 (App.Div.1982).
Congress chose the Pinelands as the first protected site with good reason. New Jersey is the most densely populated state in the nation and lies at the midpoint of the emerging megalopolis that extends from Boston to Richmond. Statistical Abstracts of the United States, 1990 at 21; J. McPhee, The Pine Barrens 4-5 (1981). The central corridor of the state between New York and Philadelphia has been described as "one great compression of industrial shapes, industrial sounds, industrial air, and thousands and thousands of houses webbing over the spaces between the factories." J. McPhee, supra, at 4. Astride that corridor in central and southern New Jersey is the Pinelands.
The pristine nature of the Pinelands sharply contrasts with its contiguous, dense urban and industrial surroundings. A "wilderness" of pine-oak forests and wild and scenic rivers, the Pinelands harbors a "wide variety of rare, threatened and endangered plant and animal species," and encompasses "many other significant and unique ecological, historical, recreational, and other resources." Senate Committee Statement, supra; J. McPhee, supra, at 4-5. The region overlies the vast, seventeen-trillion gallon Cohansey aquifer, "one of the largest virtually untapped sources of pure water in the world." Senate Committee Statement, supra; see J. McPhee, supra, at 13-16. There has been very little development within the Pinelands; there are no major retail centers, and developed property comprises only one to two percent of the land in most areas. New
Jersey Pinelands Commission, New Jersey Pinelands: Comprehensive Management Plan 128-29 (1980) (Comprehensive Management Plan). Agriculture in the Pinelands, especially the cultivation of cranberries and blueberries, is particularly important both nationally and locally. New Jersey Department of Agriculture, Annual Report -- Ag Statistics 38, 72-73 (1990).
In recent years, anxiety over the loss of farming and the fragile ecology of the Pinelands has produced increasingly stringent federal and state regulation. Both the federal and the implementing state legislation make clear that conservation, preservation, and protection are the principal ends of governmental regulation of land use in the Pinelands. The federal statute states its purpose is "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). Similarly, the New Jersey Pinelands Protection Act (Act), L. 1979, c. 111; N.J.S.A. 13:18A-1 to 29, declares that its goals are, among others, to protect, preserve, continue, and expand agriculture and horticulture and to discourage piecemeal and scattered development within the Pinelands. N.J.S.A. 13:18A-9b. The Act stresses preservation of the region:
[T]he continued viability of [the Pinelands] area and resources is threatened by pressures for residential, commercial and industrial development * * * [T]he protection of such area and resources is in the interests of the people of this State and of the Nation * * *.
The Legislature further finds and declares that the current pace of random and uncoordinated development and construction in the pinelands area poses an immediate threat to the resources thereof, especially to the survival of rare, threatened, and endangered plant and animal species and the habitat thereof, and to the maintenance of the existing high quality of surface and ground waters; that such development and construction increase the risk and extent of destruction of life and property which could be caused by the natural cycle of forest fires in this unique area * * *. [ N.J.S.A. 13:18A-2.]
The Act authorizes the designation of "protection areas" for promotion of agriculture, horticulture, and "appropriate patterns of compatible residential, commercial and industrial development in or adjacent to areas already utilized for such purposes."
N.J.S.A. 13:18A-9b. It also calls for the establishment of an extensive "preservation area" to protect especially sensitive land in its natural state and to promote compatible agricultural, horticultural, and recreational uses. N.J.S.A. 13:18A-9c.
In keeping with the paramount objective of both federal and state governments, i.e., protecting the Pinelands from overdevelopment and consequent ecological degradation, the plan for the Pinelands National Reserve calls for the full participation of federal, state, county, and municipal authorities. 16 U.S.C.A. § 471i(b), (d), (f)(4), (g), (h). To ensure that pressures for development do not overwhelm the need for preservation, actions of the lower levels of government that do not conform to that objective can be pre-empted by a higher authority.
The federal statute directs the Governor of New Jersey to create a planning commission. 16 U.S.C.A. § 471i(d). The New Jersey Pinelands Commission (the "Commission") is the instrumentality envisaged by federal and state law as having primary responsibility for planning in the Pinelands. N.J.S.A. 13:18A-4. Its charge is to develop a "comprehensive management plan" (CMP) to serve as the land-use blueprint for the region, subject to the approval of the federal Secretary of the Interior. 16 U.S.C.A. § 471i(d), (f), and (g); N.J.S.A. 13:18A-4, -5, -8, -9. To assist the State's efforts, the federal government provides funds for planning and land acquisition, which are subject to repayment if the State does not properly implement a preservation program. 16 U.S.C.A. § 471i(g)(5), (g)(6), (k).
A similar system of incentives to cooperate, reinforced by the power to pre-empt, characterizes the relations between the State and local governments under the Act. Initially, the Commission assumed all power to exercise traditional zoning functions within the Pinelands, promulgating minimum land-use standards under the CMP. N.J.S.A. 13:18A-8, -10. Thereafter, counties and municipalities were required to conform
their master plans and zoning ordinances to the CMP and to have such plans and ordinances approved by the Commission. N.J.S.A. 13:18A-12(a), (b). If a county or municipality fails to conform to the CMP, the Commission will continue to exercise direct control over local land use. N.J.S.A. 13:18-12(c).
In developing the CMP, the Commission has been directed to "[r]ecognize existing economic activities within the area and provide for protection and enhancement of such activities as farming, forestry, proprietary recreational facilities, and those indigenous industries and commercial and residential developments which are consistent with such purposes and provisions." N.J.S.A. 13:18A-8(d)(3). To those ends, the Commission has been given broad authority to invoke
a variety of land and water protection and management techniques, including but not limited to, zoning and regulation derived from State and local police powers, development and use standards, permit systems, acquisition of conservation easements and other interest [sic] in land, * * * transfer of development rights, dedication of private lands for recreation or conservation purposes and any other appropriate method of land and water protection and management which will help meet the goals and carry out the policies of the management plan. [ N.J.S.A. 13:18A-8(d)(1).]
Reflecting the aims of the federal and state statutes, the goals of the CMP include the "continuation and expansion of agricultural and horticultural uses." N.J.S.A. 13:18A-9(b)(3). The original CMP, adopted by the Commission in November 1980, stressed that agriculture contributes both to the unique characteristics of the Pinelands and to the environment "by creating open space, terrestrial and aquatic habitats, and wild-life feeding areas." Comprehensive Management Plan, supra, at 242. It also stated that suburban development contributes to "an unfavorable economic environment for farmers through escalating taxes, enactment of inhibiting local ordinances, and increased trespassing and vandalism." Ibid. Consequently, the original CMP called for several programs to ...