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In re New Jersey Pinelands Commission Resolution PC 4-00-89

January 3, 2003

IN THE MATTER OF THE NEW JERSEY PINELANDS COMMISSION RESOLUTION PC4-00-89.
PACHOANGO ASSOCIATES AND DEVEL, L.C. PLAINTIFFS, AND IVA SAMOST AND MAINLINE REALTY GROUP, LLC., PLAINTIFFS/INTERVENORS- RESPONDENTS,
v.
THE NEW JERSEY PINELANDS COMMISSION, TOWNSHIP OF EVESHAM, EVESHAM TOWNSHIP PLANNING BOARD, AND BURLINGTON COUNTY PLANNING BOARD, DEFENDANTS, AND THE PINELANDS PRESERVATION ALLIANCE, NEW JERSEY AUDUBON SOCIETY, AND NATURAL RESOURCES DEFENSE COUNSEL, DEFENDANTS/INTERVENORS- APPELLANTS.



Appeal Number A-1781-00T2 on appeal from the New Jersey Pinelands Commission approving a settlement agreement.

Before Judges Pressler, Wallace, Jr., and Hoens.

The opinion of the court was delivered by: Wallace, Jr., J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: October 29, 2002

These separate appeals calendared back-to-back are consolidated for the purposes of this opinion.

In one appeal, appellants Pinelands Preservation Alliance, New Jersey Audubon Society, and the Natural Resources Defense Council (collectively, appellants) appeal from Resolution PC4- 00-89 entered by the Pinelands Commission (the Commission) approving a settlement agreement containing modifications to a residential development plan, known as "The Sanctuary" (the development) in Evesham Township, Burlington County. The modifications resulted from the discovery after the initial approval of the development that the development contained habitat critical to the survival of a local population of timber rattlesnakes, an endangered species in New Jersey. Appellants argue that the Commission erred in: 1) failing to make the requisite findings of fact in adopting the resolution; 2) failing to cite to legal authority, failing to comply with regulatory authority, and waiving compliance with the regulations; and 3) adopting the resolution approving the settlement even though its findings were not supported by substantial credible evidence and conflicted with decisions in other cases.

In the second appeal, appellants argue that the court erred in granting the motion for summary judgment brought by Pachoango Associates and DEVEL, L.C., the predecessors to Iva Samost, the property owner, and Mainline Realty, Inc., the developer (collectively, the developers) on the basis that appellants lacked standing under the Environmental Rights Act, N.J.S.A. 2A:35A-1 to -14 (ERA), to pursue this action for an alleged violation of the Endangered and Nongame Species Conservation Act, N.J.S.A. 23:2A-1 to -13 (ENSCA), and on the basis that the court lacked subject matter jurisdiction. We affirm both appeals.

We recite the relevant facts. In 1988, the Evesham Township Planning Board granted preliminary approval to build a portion of the development, located south of Hopewell Road, which was ultimately to include 300 single-family homes on approximately 700 acres.

On May 31, 1988, the Commission issued a "call-up" letter, or notice of a review, pursuant to N.J.A.C. 7:50-4.37(a), to the predecessor to the developers, setting forth its intention to review the preliminary approval to determine whether it was in compliance with the Comprehensive Management Plan (CMP). N.J.A.C. 7:50-1.8 to 7.11. The CMP includes regulations designed to protect the Pinelands endangered animal species, and provides in part that: [n]o development shall be carried out unless it is designed to avoid irreversible adverse impacts on habitats that are critical to the survival of any local populations of those threatened or endangered animal species designated by the Department of Environmental Protection [DEP] pursuant to N.J.S.A. 23:2A-1 et seq. [N.J.A.C. 7:50-6.33.] The protection of endangered species was one of the concerns delineated in the call-up letter, but there was no mention of timber rattlesnakes because the environmental reports submitted during the review process made no reference to a population of that species.

Litigation ensued. The case was ultimately settled on January 19, 1993, and, in June 1994, the Evesham Planning Board granted final approval of sections I and II of the development. Thereafter, the predecessor to the developers constructed 103 homes.

In July 1998, the predecessor to the developers applied for and received final approval from the Planning Board for sections III, IV, and V. As a result of confirmed sightings of timber rattlesnakes, on October 21, 1998, the Commission again issued a call-up pursuant to N.J.A.C. 7:50-4.40(a) (Commission review following final local approval) to review the county and local Planning Board final approvals, based in part on the Commission's determination that the presence of the rattlesnakes raised an issue of compliance with the CMP, specifically N.J.A.C. 7:50-6.33. No further development could go forward pending completion of the Commission's review and approval. N.J.A.C. 7:50-4.40(c). The developers requested a hearing before the Office of Administrative Law (OAL) pursuant to N.J.A.C. 7:50-4.41. In November 1998, the predecessor to the developers also filed a complaint in Superior Court, Pachoango v. N.J. Pinelands Comm'n, challenging the Commission's authority to call-up the final approvals on the grounds that the 1993 settlement had resolved all endangered species issues. In addition, the developers sought just compensation for a temporary or permanent taking of property. In February 1999, the court granted appellants' application to intervene in the lawsuit, ordered the matter remanded to the Commission for further consideration, and placed the takings claim on the inactive list pending resolution by the Commission. Meanwhile, appellants filed a counterclaim alleging that the settlement violated ENSCA.

The Commission referred the matter to the OAL. In April 1999, Pachoango Associates conveyed its interest in the development to the developers, and the developers intervened in both the OAL and Law Division matters.

On April 21, 2000, the developers, DEP, Evesham Township, the Commission, and appellants entered into a partial settlement agreement releasing thirty-seven lots in sections III and IV from the Commission's call-up letter. The parties continued to debate various alternative plans designed to reach a comprehensive settlement that would protect the population of timber rattlesnakes, including the placement of a "snake-proof" barrier fence along the Kettle Run Creek, a stream running through the development, and the construction of a series of underground culverts or tunnels beneath a road in the development which crossed the corridor that linked the snakes' denning area to their foraging area. The parties also discussed reducing the overall size of the development, and the conveyance to the DEP by the developers of 1200 acres, some of which were contiguous to the development.

On October 10, 2000, appellants submitted to the Commission a notebook containing data of sightings of timber rattlesnakes within the development, and reports by Howard K. Reinert, an Associate Professor of Biology, and Robert T. Zappalorti, Executive Director of Herpetological Associates. In a certification accompanying his report, Reinert, a herpetologist, expressed his opposition to any further development on the basis that the remaining undeveloped portions represented "critical habitat" for the local population of timber rattlesnakes. In a subsequent report, Reinert discussed the effectiveness of fences and tunnels, indicating that there was "no scientific evidence" to show whether the snakes could be diverted from their established activity ranges without a negative impact upon their individual survival. He found the use of ...


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