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.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 posted on the Commission's website was a five-page detailed summary of the proposed settlement agreement. The meeting was attended by approximately forty individuals, most of whom were local homeowners.
The proposed settlement agreement was addressed at the Commission's public meeting of November 12, 2004. Members of the public, including a representative of Pinelands Preservation Alliance, were given an opportunity to speak. The Commission's Executive Director presented a brief outline of the settlement terms and distributed copies of the resolution and settlement agreement to members of the public in attendance. At the conclusion of the meeting, the Commission adopted the resolution approving the settlement.
Under the settlement agreement, the Ivelin parties agreed to transfer Lot 14, the lot closest to the burrow, to the Sanctuary Homeowners Association. The Ivelin parties further agreed to restrict a 20-foot-wide area on Lot 13 from the erection of any structures, and granted the Commission access to that area for the "purpose of observing, monitoring, and/or managing any threatened or endangered plant or animal species found or located within this open space." The Ivelin parties also agreed that it would not object to any traffic calming measures implemented by Evesham Township or the Commission on James Audubon Way. In effect, the agreement permitted both John James Audubon Way and Georgia O'Keefe Way to remain open to traffic, with the Ivelin parties being responsible for installing culverts and fencing along Georgia O'Keefe Way in addition to replacing the old fencing with smooth, durable barriers. The primary reason for keeping Georgia O'Keefe Way open to traffic is due to public safety concerns: Georgia O'Keefe Way provides ingress and egress to and from the development via Hopewell Road. Lastly, the Ivelin parties agreed to contribute $75,000 to the Pinelands Commission for natural resource monitoring and planning activity within the Pinelands, although the funds cannot be used to conduct additional threatened and endangered species surveys at the Sanctuary.
Appellants, both of which objected to the settlement terms at the November 12, 2004 meeting, now appeal from the Commission's approval of the settlement.
On appeal, appellants argue:
THE RECORD CONTAINS UNCONTRADICTED EVIDENCE SHOWING THAT THE APPROVED DEVELOPMENT PLAN VIOLATES THE [COMPREHENSIVE MANAGEMENT PLAN'S] ENDANGERED SPECIES HABITAT PROTECTION RULE.
THE COMMISSION FAILED TO FIND THAT CRITICAL HABITATS WOULD BE PRESERVED.
A FINDING OF [COMPREHENSIVE MANAGEMENT PLAN] COMPLIANCE WOULD NOT BE SUPPORTED BY SUBSTANTIAL EVIDENCE.
THE SETTLEMENT PROCESS WAS INADEQUATE.
Appellate courts have a limited role in reviewing decisions of administrative agencies. In re Taylor, 158 N.J. 644, 656 (1999). An agency's decision must stand unless it is arbitrary, capricious, or unreasonable. In re Twp. of Warren, 132 N.J. 1, 26 (1993). As described in Sanctuary I, supra, 356 N.J. Super. at 372, our review is limited to three inquiries of whether: "1) the action violates express or implied legislative policies; 2) the record contains substantial evidence to support the agenc[y's] findings; and 3) in applying the legislative policy to the facts, the agency erred in reaching a conclusion that could not reasonably have been made on a showing of irrelevant factors." Courts will reverse an agency decision that is arbitrary, capricious, or unreasonable, or that is not supported by credible evidence in the record. Ibid. Courts "may not vacate an agency determination because of doubts as to its wisdom or because the record may support more than one result." Ibid. Stated another way, "we are obliged to give due deference to the view of those charged with the responsibility of implementing legislative programs. Ibid.
We have carefully reviewed the record in light of the arguments presented by appellants and determine that the arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We conclude that the Commission's actions in approving the settlement were supported by substantial evidence. R. 2:11-3(e)(1)(D). Nonetheless, we add the following comments.
Appellants contend that the resolution authorizing the settlement failed to contain sufficient findings of fact and conclusions of law. We disagree. The resolution and settlement agreement must be read together. The resolution describes the history of dispute, the measures required to address the preservation of the critical habitat, and determines that the measures described in the settlement agreement are "designed to protect habitat critical to the survival of the local population of the Northern Pine Snake that exists in the vicinity of the Sanctuary development." As in Sanctuary I, "[t]he settlement was a practical solution for solving a problem that surfaced during the construction of the latter phases of the development." Sanctuary I, supra, 356 N.J. Super. at 373.
Appellants also argue that the Commission failed to provide sufficient public notice of the November 12, 2004, meeting and that the resolution, approving the settlement agreement, was not on the Commission's agenda. We are satisfied that adequate notice was provided to the public concerning the proposed settlement agreement. On October 29, 2004, the Commission issued a press release, in which the Executive Director announced:
[T]hat he will be recommending a tentative settlement agreement regarding the Sanctuary housing development in Evesham Township to the Pinelands Commission at its November 12 meeting. At that time, the Commission may vote to authorize [the Executive Director] to execute the settlement agreement.
However, [the Executive Director] first will hold an informational meeting in Evesham to apprise area residents and other interested parties of the terms and conditions of the draft agreement.
The press release described a time and location of the informational meeting, the history of the matter, and key terms of the proposed settlement. The public was also referred to the Pinelands' website, where more details were available, including a five-page detailed summary of the settlement agreement. Although the settlement agreement was not listed on the agenda, the agenda did include a notice that the Commission would conduct a closed session to discuss litigation, reserving the right to reconvene into public session to take action on closed session items. During the public session, the settlement was discussed in detail, with copies of the proposed resolution and settlement agreement distributed to members of the public. We are satisfied that the public, including appellants, were adequately informed of the public meeting and of the terms of the settlement agreement.