On appeal from Superior Court of New Jersey, Chancery Division, General Equity Part, Burlington County.
Before Judges Brody, Stern and Keefe.
The opinion of the court was delivered by
This appeal challenges a Pinelands Commission (Commission) regulation, adopted pursuant to the Pinelands Protection Act (Act), N.J.S.A. 13:18A-1 to -29, that prevents plaintiff Frances Uncle (plaintiff) from using her property for the extraction of sand and gravel. The regulation has that effect because she had failed to register the use as nonconforming by January 21, 1981, and therefore under the regulation it could not be continued as a pre-existing nonconforming use. Plaintiff has contracted to sell the property to plaintiff Fred Vahlsing, III, subject to the condition that it may be used for extracting sand and gravel. The matter was transferred to this court by the Chancery Division after a factual record was developed, through stipulations and findings, so that we may perform our function of reviewing the validity of the regulation. We sustain the regulation.
The property, located in Pemberton Township, is 110 acres of undeveloped land in the Preservation Area of the Pinelands, an area of the Pinelands singled out in the Act for preservation in its natural state. N.J.S.A. 13:18A-9c. Plaintiff inherited the property in 1978 from her mother. Her father had owned it since 1944. It passed to her mother when he died. Until December 1979, the family used the property for extracting sand and gravel. Operation of the business was passive. Customers extracted for themselves what they wanted by whatever manner they chose. In time the operation came under increasing governmental regulation and control, which plaintiff and her family ignored, leading to its closure in 1979.
In order to make up for the lost income, plaintiff applied for and received a forestry permit from the Commission, which enabled her to obtain a lower farmlands assessment from Pemberton in 1984. The permit described the property as having "an abandoned gravel pit," the remainder being wooded with pine oak. In 1987, plaintiff entered into the contract of sale to Vahlsing who wants to resume using the property for sand and gravel extraction.
A 1973 amendment to Pemberton's zoning ordinance changed the property's permitted uses from industrial to residential. In 1975 Pemberton extended its ordinance regulating strip mining to include sand and gravel operations. Four years later Pemberton closed down the operation for noncompliance with its strip-mining ordinance.
In 1988, after plaintiff had entered into the contract of sale, she obtained a resolution from the Pemberton Zoning Board of Adjustment declaring that for zoning purposes the extraction operation was a protected pre-existing nonconforming use. The resolution made clear, however, that it gave no protection against having to comply with governmental regulations concerning the operation:
NOW THEREFORE, BE IT RESOLVED by the Zoning Board of Adjustment of the Township of Pemberton that applicant be granted an interpretation that the dirt/gravel mining operation is a pre-existing use which may continue subject to all applicable Municipal and State licensing procedures. The interpretation set forth in this Resolution shall not be deemed to grant or waive any permits required to be obtained or site plan approval procedures necessary in connection with the mining operation.
The trial Judge found as uncontroverted facts that plaintiff and her parents not only had failed to comply with the strip-mining ordinance but also failed to comply with statutes and State regulations governing the extraction operation:
(1) Plaintiff Uncle never registered as required the operation with the Commissioner of Labor and Industry pursuant to the Mine Safety Act, N.J.S.A. 34:6-98.1 et seq., specifically N.J.S.A. 34:6-98.4(h).
(2) Plaintiff Uncle never reported as required the operations to the Commissioner pursuant to N.J.S.A. 34:6-98.6(c).
(3) Plaintiff Uncle never obtained approval as required for the mining operation pursuant to the Soil Erosion and Sediment ...