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In re Pinelands Commission Resolution No. PC4-04-74

May 30, 2007

IN THE MATTER OF THE PINELANDS COMMISSION RESOLUTION NO. PC4-04-74.


On appeal from the Resolution of the New Jersey Pinelands Commission No. PC4-04-74.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 8, 2007

Before Judges Axelrad and Gilroy.

The Pinelands Preservation Alliance and the New Jersey Audubon Society (collectively, the appellants) appeal from Resolution PC4-04-74 entered by the New Jersey Pinelands Commission (the Commission) on November 12, 2004, approving a settlement between the Commission and Ivelin, L.P., and Iva Samost (collectively, the Ivelin parties), owners of undeveloped portions of a subdivision known as the "Sanctuary" in Evesham Township. We affirm.

This is the appellants' second appeal challenging the Commission's settlement of a lawsuit arising from the Commission's obligation to assure compliance with its Comprehensive Management Plan (CMP), N.J.A.C. 7:50-1.11 to -7.11, specifically N.J.A.C. 7:50-6.33, that provides in pertinent part:

No 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 pursuant to N.J.S.A. 23:2A-1 et seq.

The first appeal concerned the Commission's review of local land use approvals for Sections III, IV, and V of the Sanctuary after sightings of endangered timber rattlesnakes were confirmed. In re New Jersey Pinelands Comm'n Resolution, 356 N.J. Super. 363 (App. Div.), certif. denied, 176 N.J. 281 (2003) (Sanctuary I). In Sanctuary I, appellants argued that the "Commission failed to make required findings; failed to identify the authority under which it acted; failed to comply with its own regulations; failed to comply with the CMP; and failed to comply with its decision in other cases." Id. at 372. We affirmed, determining that "the resolution [approving settlement] contain[ed] extensive findings to support the Commission's determinations." Ibid. We concluded "[t]he settlement was a practical solution for solving a problem that surfaced during the construction of the later phases of the development." Id. at 373.

On October 10, 2001, a dead juvenile Northern Pine Snake was found along John James Audubon Way, a newly-paved road within Section III of the Sanctuary. Northern Pine Snakes, a threatened species in New Jersey, had not previously been found in the Sanctuary. On November 5, 2001, the Commission conducted a pine snake survey of lots within Section III near where the dead snake was discovered. No other evidence of pine snakes was found. The Commission reached an agreement with the Ivelin parties and their builders that the Commission would conduct a survey of the area in the following spring, when any resident pine snakes would be out of hibernation.

From May to August 2002, the Commission conducted surveys of the area. On June 26, 2002, a Commission technician located a pine snake nesting burrow and accompanying snake tracks in Section III near Block 89.11, Lot 14, owned by developer Signature Homes at Forest Lakes, L.L.C., and Block 89.11, Lot 13, owned by developer Steliga Homes of Evesham, L.L.C. When Commission staff members next returned, the nesting site had been destroyed. The staff members freed a large pine snake that had been trapped within the collapsed burrow and removed ten eggs from the nest for incubation. Nineteen already-hatched pine snake eggs were also found, indicating that the area had been used for pine snake nesting in the past. A few weeks later, another possible pine snake burrow was found.*fn1 In August, surveys were conducted in Sections IV through and VIII of the subdivision. However, no other pine snakes were observed.

In November and December 2002, call-up letters, or notices of review, were issued by the Commission to Steliga and Signature Homes for certain lots in Section III to determine whether development of those lots would adversely affect the pine snake critical habitat.

In May 2003, Signature Homes filed a complaint and order to show cause seeking injunctive relief, arguing that the 2000 Sanctuary I settlement concerning timber rattlesnakes precluded further call-ups regarding all other species. The trial court dismissed the complaint, and we affirmed in an unpublished opinion. Signature Homes at Forest Lakes, LLC, v. New Jersey Pinelands Comm'n, No. A-4885-02T5 (App. Div.), appeal dismissed per stipulation, No. 56,069 (May 13, 2004). In May 2004, Signature Homes entered into a settlement agreement with the Commission and Township of Evesham pertaining to several lots, including Lots 15, 16 and 17 of Block 89.11, located in the vicinity of the pine snake burrow along John James Audubon Road. Among other matters, Signature Homes agreed to: 1) transfer title to Lot 15, the lot closest to the burrow, to the Sanctuary Homeowners Association; 2) enter a deed restriction and access agreement for Lot 16, Block 89.11, "in order to create a 30-foot-wide open space area on the side of this property that adjoins Lot 15. This deed restriction and access agreement shall prohibit the erection of any structures or improvements of any kind in this 30-foot-wide area"; and 3) grant the Commission access to the thirty-foot-wide area on Lot 16 "for the purpose of observing, monitoring, and/or managing any threatened or endangered plant or animal species found or located within this open space."

In the interim, Lots 13 and 14 of Section III, Block 89.11, near the nesting burrow, were still subject to the previously-issued call-up letters concerning whether development of those lots was consistent with preserving the pine snake critical habitat under N.J.A.C. 7:50-6.33. On December 24, 2003, the Ivelin parties filed an eleven-count complaint in the United States District Court of New Jersey against the Commission and New Jersey Department of Environmental Protection (NJDEP), alleging a violation of their federal and state constitutional rights and raising various contract and tort claims.

In October 2004, the Ivelin parties, the Commission, and the NJDEP reached a preliminary settlement. A brief, general description of the settlement agreement was noticed in a press release on October 29, 2004. The press release also notified the public that an informational meeting would take place on November 9, 2004, to address any concerns relating to the settlement, and that the Commission would consider the settlement at its November 12, 2004, public meeting. On November 9, 2004, the Commission's Executive Director presided over the public informational meeting. Notice of the meeting had been publicized in the aforementioned press release, advertised in local newspapers and on the Commission's web site, and a notice was sent to 176 homeowners within the Sanctuary. Also ...


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