On appeal from the New Jersey Pinelands Commission, Docket No. 1981-0562.001.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino, Ashrafi and Fasciale.
Appellant D.D. Residential Ltd. Partnership (D.D.) is the owner of the Hamilton Greene apartment complex in Hamilton Township, Atlantic County. The 140-acre property is located in the Pinelands National Reserve, within the jurisdiction of respondent New Jersey Pinelands Commission. In the 1980s, D.D.'s predecessor obtained land use and site plan approvals to build 676 residential units in five phases of construction. Three of the phases were completed, and certificates of occupancy were issued for 416 apartments that are now legally occupied.
The protections of the land use and site plan approvals against zoning changes expired at the end of 1996. In 2004, the Hamilton Township Planning Board granted an extension of the prior approvals so that D.D. can build the two additional phases of the complex comprising 220 new apartments in accordance with prior density regulations. In this appeal, D.D. challenges the final decision of the Pinelands Commission issued on October 8, 2010, invalidating that extension.
A primary issue before us concerns interpretation and application of N.J.S.A. 40:55D-52b, a provision of the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -99, that authorizes extensions in time of prior land use approvals. Intertwined with that issue is whether the Pinelands Commission had legal authority to review and disapprove the extension granted to D.D.
We hold that N.J.S.A. 40:55D-52b and the Hamilton Township ordinance that contains language identical to that statute do not permit the extension that the Planning Board granted to D.D. We also hold that the Pinelands Commission acted within its statutory authority in setting aside the land use approvals. We affirm the decision of the Pinelands Commission.
A. The Pinelands National Reserve
The Pinelands National Reserve was established by Congress in 1978 in recognition of the unique and fragile ecology of the New Jersey Pinelands. See Gardner v. N.J. Pinelands Comm'n, 125 N.J. 193, 198-200 (1991) (detailing history and significance of "the New Jersey Pine Barrens, or Pinelands"). The New Jersey Legislature enacted the Pinelands Protection Act, N.J.S.A. 13:18A-1 to -29, by which it created the Pinelands Commission, N.J.S.A. 13:18A-4. The Commission was charged with developing a Comprehensive Management Plan (the Management Plan), which is mandated by The National Parks and Recreation Act of 1978, 16 U.S.C. § 471i. The objective of the Management Plan, N.J.A.C. 7:50-1.1 to -10.35, is "to promote orderly development of the Pinelands so as to preserve and protect the significant and unique natural, ecological, agricultural, archaeological, historical, scenic, cultural and recreational resources,"
N.J.A.C. 7:50-1.3. The Commission was also charged with regulating all development activity within the Pinelands National Reserve. N.J.S.A. 13:18A-4 to -9, -27, -29; N.J.A.C. 7:50-8.1.
In Gardner, supra, 125 N.J. at 201-02, the Court explained the role of the Commission in land use decisions:
Initially, the Commission assumed all power to exercise traditional zoning functions within the Pinelands, promulgating minimum land-use standards under the [Management Plan]. Thereafter, . . . municipalities were required to conform their master plans and zoning ordinances to the [Management Plan] and to have such plans and ordinances approved by the Commission. If a . . . municipality fails to conform to the [Management Plan], the Commission will continue to exercise direct control over local land use. [Citations omitted.]
As part of the Management Plan, the Legislature created the Pinelands Development Credit (PD Credit) program. N.J.S.A. 13:18A-30 to -54. The purpose of the program is to provide property owners in the most ecologically sensitive areas of the Pinelands with financial recompense for loss of beneficial uses of their property by transferring development rights to other property owners. N.J.A.C. 7:50-5.41. Parts of the Pinelands that were designated as Regional Growth Areas under the Management Plan could be used for more intense development with the use of PD Credits. N.J.A.C. 7:50-5.43, -5.45; see N.J.S.A. 13:18A-31. The appropriate number of PD Credits would enable a developer building in a Regional Growth Area to increase by approximately fifty percent the density allowable under a municipality's zoning ordinance. N.J.A.C. 7:50-5.28, -5.43, -5.45. For example, if a municipal zoning ordinance in a Regional Growth Area permits one home per acre, a developer can purchase and redeem a sufficient number of PD Credits to increase the density of its development to one-and-a-half homes per acre.
The Commission considers parts of Hamilton Township to be prime targets for PD Credit use. That is, the Commission seeks to steer controlled development to areas of Hamilton Township that are suited for development and thus to avoid development in more environmentally sensitive areas of the Pinelands. See N.J.S.A. 13:18A-31.
In 1985, the Commission certified Hamilton Township's master plan and land use ordinance as conforming to the Management Plan. Under the township's zoning ordinance, a developer could obtain approval for a Planned Unit Residential Development (PURD) at a gross density of 4.75 dwelling units per acre or 7.2 dwelling units per acre with PD Credits.
B. The Hamilton Greene Development
The Hamilton Greene apartment complex is located within a zoning district designated as a Regional Growth Area - Intensive under the Management Plan and the zoning ordinance of Hamilton Township. In 1986 and 1987, D.D.'s predecessor in title obtained from the township's Planning Board subdivision and final site plan approvals for all five phases of the Hamilton Greene complex. The approved plans called for a PURD under the municipal zoning ordinance in effect at that time. In 1988 and 1990, the Commission approved the Planning Board's granting of the subdivision and site plan approvals for all five phases of the development project. Over the next several ...