ROBERT T. WINZINGER, INC. v. THE PINELANDS COMMISSION

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6032-04T56032-04T5

ROBERT T. WINZINGER, INC.,

Petitioner-Appellant,

v.

THE PINELANDS COMMISSION,

Respondent-Respondent.

 
 

Argued May 17, 2006 - Decided June 5, 2006

Before Judges Conley, Winkelstein and Sapp-Peterson.

On appeal from the New Jersey Pinelands Commission.

Richard M. Hluchan argued the cause for appellant (Ballard Spahr Andrews & Ingersoll, attorneys; Mr. Hluchan, of counsel; Amy M. Trojecki, on the brief).

Ellen Barney Balint, Deputy Attorney General, argued the cause for respondent (Zulima V. Farber, Attorney General, attorney; Jean Reilly, Deputy Attorney General, of counsel; Ms. Balint, on the brief).

PER CURIAM

Appellant appeals the determination by the Pinelands Commission (Commission) that, pursuant to nonconforming use and abandonment zoning concepts, the grandfathered mining operation on its 284.36 acre property located in Woodland Township, Burlington County, had been abandoned. Its mining permit, therefore, was denied. The property is located in the Pinelands Preservation Area, N.J.S.A. 13:18A-11(b), and is subject to the Commission's authority under the Pinelands Protection Act, N.J.S.A. 13:18A-1 to -29. It is undisputed that the governing regulations do not impose the zoning concepts of nonconforming use and abandonment. It is also undisputed that, but for these concepts, the mining operation would qualify for a permit, subject to compliance with the Commission's resource extraction standards. Although we reverse, we do not go so far as to conclude that in other circumstances the Commission could not, in considering an application for a permit for a grandfathered use, utilize zoning concepts of nonconforming use and abandonment. See generally Gardner v. N.J. Pinelands Comm'n, 125 N.J. 193, 201-02 (1991). But under the particular circumstances here, we are convinced the Commission's determination is fundamentally unfair.

The background to the present dispute is important. Appellant, Robert T. Winzinger, Inc., is a family-owned contracting and construction business. The property at issue was purchased in 1975 to conduct sand and gravel mining for use in appellant's construction business. The Commission was not then in existence. Appellant obtained a permit from Woodland Township to mine the property for sand and gravel.

The Commission was created in 1979. Pursuant to its statutory authority and mandate, it promulgated regulations that collectively make up the Pinelands Comprehensive Management Plan (CMP). N.J.A.C. 7:50-1.1 to -10.30. In the early 1980's, a dispute arose between appellant and the Commission concerning whether it was entitled to continue resource extraction operations on the property when the Commission denied its 1981 development plan seeking approval for the existing mining operations and construction of a sand plant.

The matter was referred to the Office of Administrative Law. After a hearing, the Administrative Law Judge (ALJ) issued an initial decision, concluding that appellant was entitled to continue sand and gravel mining on the property because it satisfied the requirements of the CMP. The ALJ found that appellant "was authorized by and operating under a valid municipal permit prior to February 8, 1979, and the existence and validity of that permit was stipulated." The ALJ also acknowledged that "the parties stipulated that [appellant] had registered its operation with the Pinelands Commission on or before January 21, 1981." Finally, the ALJ found as a fact that "[t]he area of extraction authorized by Woodland Township permit number 108, dated April 24, 1975, was and is the entire 285-acre parcel, subject to any restriction placed upon it by valid Woodland Township land use ordinance . . . ."

Thereafter, on November 5, 1982, the Commission affirmed the ALJ's initial decision. The Commission allowed appellant to continue its mining operations finding that while the CMP "is designed to eliminate resource extraction operations in the Preservation Area District[,] [it] allow[s] existing resource extraction operations to continue to the extent authorized prior to February 8, 1979. . . . " Specifically, the Commission concluded that appellant "received a municipal permit for the resource extraction operation prior to February 8, 1979," and, because it had "registered this resource extraction operation with the Pinelands Commission prior to January 21, 1981," it was entitled to continue the operation. The ensuing permit was for two years. See N.J.A.C. 7:50-6.64(a).

In November 1984, the two-year permit expired. In 1987, appellant submitted an application for development to the Commission to resume resource extraction activities. In response to this, on July 1, 1987, the Commission wrote to appellant stating that the application for resource extraction was incomplete. The letter instructed that: "No extraction activities may occur until you complete an application with the Commission and receive all the necessary approvals." The letter then set forth in detail what information was required "to complete your application to renew your resource extraction permit . . . ." It also advised that: "In most cases an extraction operation may gain approval to operate" if certain standards were complied with. Finally, the letter advised that "If this information is not provided within 30 days of the date of this letter, your application will be considered to be inactive." But it added: "After your application is placed on the inactive list, you may reopen it at any time by submitting the requested information."

On July 22, 1987, the Commission wrote to petitioner's contractor, listing the additional information that was required to complete the application to renew the resource extraction permit. Again, the Commission advised in the letter that if the application was not completed, it would be placed on an inactive list. Nonetheless, it advised: "you may reopen it at any time by submitting the requested information."

On March 23, 1990, the Commission wrote Heidi Winzinger stating: "As indicated by our July 1, 1987 correspon dence . . . , [your] permit expired on November 5, 1984. No resource extraction activities can occur onsite until an appli cation for development has been completed with the Commission and all necessary approvals obtained pursuant to the provisions of the Pinelands Comprehensive Management Plan." But, consistent with the prior correspondence, the Commission invited: "If you wish to re-activate your application for a resource extraction, please indicate this in writing."

In none of these communications, nor in an October 1991 communication concerning allocation of Pinelands Development Credits (PDCs), did the Commission even suggest that appellant's right to mine the property, subject to satisfying the applicable resource extraction standards, could be lost by way of nonconforming use and abandonment zoning concepts.

Neither do the pertinent regulations. N.J.A.C. 7:50-6.63 provides:

(a) Except as expressly authorized in this [Pinelands Comprehensive Management] Plan, the extraction or mining of mineral resources other than sand, gravel, clay and ilmenite is prohibited.

(b) Nothing in this Part shall be construed to authorize resource extraction activities without receiving permits pursuant to this Plan or from complying with the standards of this subchapter.

[Emphasis added.]

Under N.J.A.C. 7:50-6.64(a), where sand or gravel mining is authorized, permits are generally issued for two years, although there is a municipal option under N.J.A.C. 7:50-6.64(a)(1) for five years.

N.J.A.C. 7:50-6.65, titled "Specific limitations in the Preservation Area," directly concerns appellant's property as it is located in the Preservation Area. It provides in pertinent part:

(a) No resource extraction operations shall be permitted in the Preservation Area District or Special Agricultural Production Areas other than those operations which were registered with the Pinelands Commission on or before January 21, 1981 and received all necessary development permits for resource extraction on or before December 31, 1985.

[Emphasis added.]

There is no dispute that appellant's property falls within the "grandfather" provision of subsection (a) and satisfies its requirements. Contrast Uncle v. N.J. Pinelands Comm'n, 275 N.J. Super. 82, 88-89 (App. Div. 1994). Of course, appellant must comply with the permit process and satisfy the resource extraction and restoration standards set forth in N.J.A.C. 7:50-6.68 and -6.69. But, important to our resolution of this appeal, given the Commission's course of dealing with appellant, is the absence of any further limitations or restrictions, aside from what can be imposed through the permitting process, that would trigger application of nonconforming use and abandonment zoning concepts. We think this is especially critical, given the fact that the regulations do address these concepts but only in the context of "the expansion or alteration of any use existing on January 14, 1981 that is currently nonconforming . . . ." N.J.A.C. 7:50-5.2(a). There is no contention here that this regulation applies, as the Commission concedes appellant's application is not for an expansion or alteration of the mining use.

Thus, as the ALJ observed, appellant's "interpretation of the various correspondence . . . by the Commission indicating the permit application could be reopened at any time would be the only logical interpretation," lulled it into a false sense of security. In rejecting his conclusion that appellant was "entitled to continue resource extraction operations pursuant to N.J.A.C. 7:50-6.65, subject to complying with the standards set forth at N.J.A.C. 7:50-6.68 and N.J.A.C. 7:50-6.69," the Commission did not address this. It simply imposed upon appellant a burden to prove that it had not abandoned its nonconforming use, rejecting the ALJ's additional conclusion to the contrary, and found that:

the applicant has not met its burden to demonstrate through its actions that its intent to mine the property after the cessation of the use for seventeen years was "continuing and definite." The Commission also finds that the applicant did not demonstrate sufficient "objective manifestations" of its intention to continue mining during the seventeen years of the cessation of the mining operations. The Commission also finds that ten years of the Applicant's silence offers no manifestation of intent to mine especially since during those ten years there was no use on the property that did not conform to the zoning requirements of the CMP.

All of this may be so, and would be entitled to our deference, e.g., In re Distrib. of Liquid Assets, 168 N.J. 1, 10-11 (2001); In re N.J. Pinelands Comm'n Resolution, 356 N.J. Super. 363, 372 (App. Div.), certif. denied, 176 N.J. 281 (2003), but for the particular circumstances we have previously set forth. Given these circumstances, we think the Commission's conditioning of appellant's grandfathered mining use upon proof of zoning concepts found nowhere in the applicable regulations not to mention not referenced on its communications with appellant, is fundamentally unfair. Cf. Bower v. Bd. of Educ., 149 N.J. 416, 433 (1997) ("We frequently have recognized the administrative-law principle that 'fairness requires that an administrative agency use its rulemaking power to establish the standards it intends to enforce by adjudication[.]'") (quoting Dept. of Law v. Titan Constr. Co., 102 N.J. 1, 14 (1985)); Dept. of Envtl. Prot. v. Stavola, 103 N.J. 425, 436 n.2 (1986). And see New Concepts for Living, Inc. v. City of Hackensack, 376 N.J. Super. 394, 403-04 (App. Div. 2005).

Reversed.

 

In Gardner v. N.J. Pinelands Comm'n, supra, 125 N.J. at 203, the Court explained:

The Commission . . . created a development-rights transfer program, under which it would award Pinelands Development Credits (PDCs) to landowners for recording permanent deed restrictions on their property limiting the land to specific uses set forth in the CMP. See . . . N.J.A.C. 7:50-5.41 to -5.47 (current version). The PDC program seeks to channel development by permitting holders of PDCs to transfer them to owners who wish to increase densities in specially-designated Regional Growth Areas. N.J.S.A. 13:18A-31; N.J.A.C. 7:50-5.41, -5.45. . . .

(continued)

(continued)

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A-6032-04T5

June 5, 2006