PEG LEG WEBB, LLC VS. NEW JERSEY PINELANDS COMMISSIONÂ (NEW JERSEY PINELANDS COMMISSION) ( 2017 )


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  •                         NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    This opinion shall not "constitute precedent or be binding upon any court."
    Although it is posted on the internet, this opinion is binding only on the
    parties in the case and its use in other cases is limited. R. 1:36-3.
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-4016-15T4
    PEG LEG WEBB, LLC,
    Petitioner-Appellant,
    v.
    NEW JERSEY PINELANDS
    COMMISSION,
    Respondent-Respondent.
    ______________________________________________
    Submitted September 11, 2017 – Decided October 11, 2017
    Before Judges Messano and O'Connor.
    On appeal from New Jersey Pinelands
    Commission, Docket No. 1984-0454.003.
    Gasiorowski & Holobinko attorneys for
    appellant (Mr. R.S. Gasiorowski, on the
    brief).
    Christopher S. Porrino, Attorney General,
    attorney for respondent (Melissa Dutton
    Schaffer, Assistant Attorney General, of
    counsel; Timothy P. Malone, Deputy Attorney
    General, on the brief).
    PER CURIAM
    The Jackson Township Planning Board granted preliminary
    site plan approval on the application of petitioner Peg Leg
    Webb, LLC to build a resource extraction facility on its
    property.    Respondent New Jersey Pinelands Commission (the
    Commission) "called up" or challenged that approval.    An
    Administrative Law Judge approved the Commission's action and in
    its final decision, the Commission adopted the ALJ's decision.
    Petitioner appeals from the Commission's final decision.       We
    affirm.
    I
    A
    In 1978, Congress established the Pinelands National
    Reserve (Pinelands) in order to protect the ecology within the
    Pinelands.    See Gardner v. N.J. Pinelands Comm'n, 
    125 N.J. 193
    ,
    198-200 (1991).    The New Jersey Legislature enacted the
    Pinelands Protection Act (Act), N.J.S.A. 13:18A-1 to -29, which
    created the Pinelands Commission to regulate all development
    activity within the Pinelands.    N.J.S.A. 13:18A-4 to -9, -27,
    -29; N.J.A.C. 7:50-8.1.    The Commission is a political
    subdivision of the State.    N.J.S.A. 13:18A-4l.
    As mandated by the National Parks and Recreation Act of
    1978, 16 U.S.C. § 471i, the Commission developed a Comprehensive
    Management Plan (CMP or Plan), which is a set of regulations
    2
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    that provide the minimum standards for development within the
    Pinelands.    See N.J.A.C. 7:50-1.1 to -7:50-10.35.    The objective
    of the CMP 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 "bears the ultimate responsibility for
    implementing and enforcing the provisions of the [Act and the
    CMP]."    N.J.A.C. 7:50-1.11.
    No development can be approved within the Pinelands unless
    it conforms with the CMP.1      In fact, it "shall be unlawful for
    any person to carry out any development in the Pinelands Area
    which does not conform to the minimum standards of [the] Plan."
    N.J.A.C. 7:50-1.4.    Although the Commission retains the ultimate
    responsibility for enforcing the Act and the CMP, see N.J.A.C.
    7:50-1.11, the Commission designated local governments as the
    "principal management entities" of the CMP.      N.J.A.C. 7:50-
    3.1(a).
    1
    The Commission is authorized to waive strict compliance if
    such waiver is necessary to alleviate extraordinary hardship or
    to satisfy a compelling public need, is consistent with the
    purposes of the enabling legislation, and would not result in
    substantial impairment of the resources of the Pinelands.
    N.J.S.A. 13:18A-10(c).
    3
    A-4016-15T4
    Consistent with this task, local governments are not
    permitted to approve any application for development within the
    Pinelands that does not conform to the provisions of the CMP.
    N.J.S.A. 13:18A-10.    In addition, each municipality with
    jurisdiction over land located within the Pinelands must ensure
    its ordinances conform to the minimum standards set forth in the
    CMP.   N.J.A.C. 7:50-3.31.   Moreover, the Commission must review
    such ordinances and certify those that are in compliance with
    the Plan.    N.J.A.C. 7:50-3.1.
    A municipality may grant an approval for development for
    any area in the municipality that is in the Pinelands, provided
    such approval is in "strict conformance" with the CMP and the
    certified ordinance.    N.J.A.C. 7:50-3.38.   If a municipality
    amends an ordinance, it shall not go into effect until the
    Commission either certifies the ordinance or determines the
    amendment does not affect its prior certification.    N.J.A.C.
    7:50-3.45(a).    Further, no development is permitted in the
    Pinelands unless the municipality's approval of the development
    plan is reviewed by the Commission and found to be in
    conformance with the CMP.    N.J.S.A. 13:18A-10(c); N.J.A.C. 7:50-
    4.2.
    Briefly, the commission's executive director reviews an
    application for development and, if the application is complete,
    4
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    issues a certificate of filing.         At that point, an applicant may
    file and a municipality may consider an application for
    development.    If a municipality approves a preliminary site
    plan, the municipality must notify the Commission.         N.J.A.C.
    7:50-4.35(d).
    The executive director then reviews the preliminary site
    plan.    N.J.A.C. 7:50-4.37(a), -4.38(a), and -4.40(a).       If the
    "the grant of preliminary approval raises substantial issues
    with respect to the conformance of the proposed development with
    the minimum standards of [the] Plan", the executive director
    shall "call up" the municipality's approval for a review by the
    Commission.    N.J.A.C. 7:50-4.37(a), -4.38(a); see also Matter of
    Petition of South Jersey Gas Co., 
    447 N.J. Super. 459
    , 476 (App.
    Div. 2016).    If the Commission disapproves of a preliminary
    approval, the municipality must revoke such approval and deny
    the application.    N.J.A.C. 7:50-4.38 (d)(1).
    B
    The facts are undisputed.       In 2003, a task force within
    the Commission recommended portions of Jackson Township be
    rezoned from "Rural Development" (RD) to "Forest Area" (FA).
    Resource extraction operations are not permitted in the FA zone
    but are permitted, as a conditional use, in the RD zone.
    5
    A-4016-15T4
    Consistent with the task force's recommendation, in 2005,
    Jackson Township adopted zoning ordinance 06-05, which rezoned
    certain property within the municipality from RD to FA.    The
    property that was rezoned is also located in the Pinelands.      The
    Commission subsequently certified this ordinance as conforming
    to the CMP; this action was not appealed.
    The owner of certain property rezoned as FA filed an action
    in lieu of prerogative writs in the Law Division, challenging
    the rezoning of his property from RD to FA.    The Commission was
    not a party to this action.   While that matter was pending in
    the Law Division, in 2006, petitioner acquired the property.       In
    2007, the court found the ordinance procedurally defective as
    applied to such property, invalidating the rezoning of such
    property from RD to FA.
    Specifically, the court found petitioner's predecessor in
    interest had not been afforded notice of the proposal to rezone
    his property, and the Jackson Township Planning Board (Planning
    Board) had not properly considered whether the rezoning of such
    property was substantially consistent with the municipality's
    master plan, see N.J.S.A. 40:55D-62.   The court ordered the
    municipality and its Planning Board to determine whether to
    rezone the property and, if they determined to do so, to provide
    proper notice to all interested parties.    The municipality did
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    not take any action until 2013, when it adopted ordinance 14-13,
    which readopted ordinance 06-05.    In the interim, the local
    zoning map continued to show the property was in the FA zone.
    In 2009, petitioner, determined to build a resource
    extraction facility on its property, provided the Commission
    with a copy of the application it intended to file with the
    Planning Board for site plan approval.    The Commission issued a
    certificate of filing, but advised petitioner the property on
    which it planned to build the extraction resource operation was
    in the Forest Area of the Pinelands and was not a permitted use.
    Notwithstanding, in 2011, petitioner submitted an
    application for preliminary major site plan approval for the
    proposed operation to the Planning Board.    In 2012, the Planning
    Board, which assumed the property was in the RD zone as a result
    of the court's decision, granted preliminary approval.    However,
    the Planning Board conditioned its approval upon petitioner not
    receiving a call up letter from the Commission.
    The executive director promptly reviewed and determined to
    call up the approval, notifying petitioner the approval raised
    substantial issues whether the proposed operation conformed to
    the CMP, and further advised the Commission would be reviewing
    the proposed development.   Petitioner requested a hearing, and
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    the matter was transferred to the Office of Administrative Law
    and assigned to an ALJ.
    After the parties filed competing motions for summary
    decision, the ALJ issued an initial decision finding in favor of
    the Commission.   In a lengthy opinion, the Commission adopted
    the ALJ's initial decision, finding the executive director's
    determination to call up the preliminary approval was correct
    because the approval raised substantial issues about the
    approval's conformance with the CMP.
    Citing N.J.S.A. 13:18A-10(c), the Commission concluded the
    executive director's determination was governed by the CMP and
    not a local ordinance, which cannot modify the CMP.    The
    Commission further observed the "land capability map," which
    depicts the different areas of land use within the Pinelands and
    is deemed part of the CMP, cannot be altered except in
    accordance with the regulations governing the Pinelands, which
    did not occur in this matter.
    The Commission acknowledged the court's decision
    invalidated ordinance 06-05, but determined such decision did
    not change the designation of the subject property from RD to FA
    on the CMP's land capability map.   Accordingly, the Commission
    continued to recognize the subject area as being in the FA zone.
    8
    A-4016-15T4
    Further, as the ordinance was inconsistent with the land
    capability map, the court's invalidation of 06-05 put the
    municipality out of compliance with the CMP.   Thus, the
    municipality was obligated to take the steps necessary to
    correct its non-compliance by either passing an ordinance
    readopting 06-05 or applying to the Commission for certification
    of the ordinance that governed the subject property before 06-05
    was adopted.
    In conclusion, because the subject property was within the
    Forest Area of the land capability map and resource extraction
    operations are not a permitted use in such area, the Commission
    found the executive director correctly determined the
    municipality's preliminary approval of the proposed site plan
    did not conform to the minimum standards of the CMP.    The
    director was required to determine whether a municipality's
    approval is in compliance with the CMP, not a local ordinance.
    Thus, it was appropriate for the executive director to find the
    municipality's preliminary approval "raised substantial issues
    whether the proposed operation conformed to the CMP," and to
    refer the matter to the Commission for review of the proposed
    development.
    9
    A-4016-15T4
    II
    On appeal, petitioner's principal contention is the subject
    property was, by virtue of the court's decision, in the RD zone
    when petitioner submitted and the municipality issued its
    preliminary approval for the application, because the ordinance
    in effect after 06-05 was invalidated put the subject property
    in this zone.   Thus, petitioner maintains, it was improper for
    the executive director to call up the municipality's approval.
    In support of its premise, petitioner relies upon N.J.S.A.
    40:55D-10.5 of the Municipal Land Use Law (MLUL), N.J.S.A.
    40:55D-1 to -163.   N.J.S.A. 40:55D-10.5 provides:
    Notwithstanding any provision of law to the
    contrary, those development regulations
    which are in effect on the date of
    submission of an application for development
    shall govern the review of that application
    for development and any decision made with
    regard to that application for development.
    Any provisions of an ordinance, except those
    relating to health and public safety, that
    are adopted subsequent to the date of
    submission of an application for
    development, shall not be applicable to that
    application for development.
    [Ibid.]
    Our role in reviewing an administrative agency's decision
    is limited.   Pub. Serv. Elec. & Gas Co. v. N.J. Dep't of Envtl.
    Prot., 
    101 N.J. 95
    , 103 (1985).    We will not reverse the
    agency's decision unless: (1) it was arbitrary, capricious, or
    10
    A-4016-15T4
    unreasonable; (2) it violated express or implied legislative
    policies; (3) it offended the State or Federal Constitution; or
    (4) the findings upon which the decision was based were not
    supported by substantial, credible evidence in the record.
    Univ. Cottage Club of Princeton N.J. Corp. v. N.J. Dep't of
    Envtl. Prot., 
    191 N.J. 38
    , 48-49 (2007).
    Having considered the record and petitioner's arguments on
    appeal, we affirm the Commission's final decision essentially
    for the same reasons set forth in its thorough and comprehensive
    opinion.    R. 2:11-3(e)(1)(D).   We make only the following brief
    comments.
    Our Legislature has made clear the Act and the regulations
    promulgated under it supersede the MLUL.    See N.J.S.A. 13:18A-
    27; see also Uncle v. N.J. Pinelands Comm'n, 
    275 N.J. Super. 82
    ,
    90 (App. Div. 1994).   To the extent the Act and these
    regulations are inconsistent with the MLUL, the former prevail.
    Petitioner argues its property was in the RD zone when it
    submitted and the Planning Board issued its decision on
    application.    However, that ordinance was not in compliance with
    the CMP, and the CMP trumps the ordinance.     Therefore, it was
    appropriate for the executive director to call up the
    municipality's approval of petitioner's application.
    11
    A-4016-15T4
    We have considered petitioner's remaining arguments and
    conclude they are without sufficient merit to warrant discussion
    in a written opinion.   R. 2:11-3(e)(1)(E).
    Affirmed.
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