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

NOT FOR PUBLICATION WITHOUT THE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
A-4016-15T4
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
A-4016-15T4
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
6
A-4016-15T4
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
7
A-4016-15T4
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.
12
A-4016-15T4