JACK O'BRIEN v. WOODLAND TOWNSHIP JOINT LAND USE BOARD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3577-09T3

JACK O'BRIEN,

Plaintiff-Appellant,

vs.

WOODLAND TOWNSHIP JOINT LAND

USE BOARD, THE TOWNSHIP OF

WOODLAND, and NEW JERSEY

PINELANDS COMMISSION,

Defendants-Respondents.

__________________________________

December 14, 2010

Argued: November 4, 2010 - Decided:

Before Judges Cuff, Sapp-Peterson, and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-354-09.

Patrick F. McAndrew argued the cause for appellant.

Daniel R. Kehler argued the cause for respondent Woodland Township Joint Land Use Board (McCrink, Kehler & McCrink, attorneys; Mr. Kehler, on the brief).

Anthony T. Drollas, Jr., argued the cause for respondent Township of Woodland (Capehart Scatchard, P.A., attorneys; Mr. Drollas, on the brief).

Mark A. Collier, Deputy Attorney General, argued the cause for respondent New Jersey Pinelands Commission (Paula T. Dow, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Amy C. Donlon, Deputy Attorney General, on the brief).

PER CURIAM

This is a prerogative writs matter. Plaintiff Jack O'Brien, the owner of a 39.55 acre parcel of property in the Township of Woodland (Woodland), filed a complaint in lieu of prerogative writs to review the denial of his application to subdivide his property to allow construction of three new single-family homes. He appeals from the order upholding the denial and dismissing his complaint. We affirm.

Plaintiff purchased the 39.55 acre lot in Woodland in September 1996. The property contained a single-family house. Plaintiff planned to subdivide the property to create three additional residential lots and erect three additional single-family homes on each of the new lots.

Woodland is located entirely in the Preservation Area District (PAD) of the Pinelands National Preserve (Pinelands); plaintiff's property is located in Woodland's residential infill development (R-ID) district. The PAD is an area of the Pinelands considered "especially vulnerable to environmental degradation" and subject to "more stringent restrictions on the development and use of land . . . ." N.J.S.A. 13:18A-2. The Comprehensive Management Plan (CMP), adopted by the Pinelands Commission, governs development in the Pinelands. It prohibits new residential or commercial construction in the PAD, except in designated "infill areas" if the lot on which the new house or commercial structure to be erected existed as of January 14, 1981,1 and is at least one acre in size. N.J.A.C. 7:50-5.22(b)7. The CMP also allows residential construction in the PAD in accordance with the cultural housing provisions of N.J.A.C. 7:50-5.32.

The zoning ordinance adopted by Woodland and approved by the Pinelands Commission, N.J.S.A. 13:18A-12, created a residential infill area. Consistent with the CMP, the Woodland ordinance allows additional residential development in an infill area, if the lot on which the house is to be erected existed on a date well before plaintiff purchased the property, or if several undersized lots can be assembled to meet the minimum lot size in the R-ID district. The ordinance also allows additional residential construction, if the property owner qualifies for the cultural housing exception.

Defendant Woodland Township Joint Land Use Board (Board) addressed plaintiff's application for an interpretation of the R-ID zoning requirements. Plaintiff asked whether "they prohibit subdivision" and whether the Board would consider a variance. In its December 16, 2008 Resolution, the Board instructed plaintiff that the proposed subdivision was not permitted.

Plaintiff filed an application for a variance from the terms of the zoning ordinance. In its February 17, 2009 Resolution, the Board denied the requested variance. The Board held that the requested variance to permit subdivision of the single 39.55 acre lot into four single-family residential lots was "inconsistent with" the zoning ordinance.

Plaintiff filed a complaint in lieu of prerogative writs. The parties presented the matter to Judge Bookbinder on cross-motions for summary judgment. By order dated March 22, 2010, Judge Bookbinder denied plaintiff's motion for summary judgment but granted defendants' motions for summary judgment. In doing so, the judge upheld the constitutionality of Article XIV of the Woodland zoning ordinance, approved the interpretation of the ordinance rendered by the Board, and upheld the denial by the Board of the variance sought by plaintiff. In deciding these motions, Judge Bookbinder initially issued a tentative decision. He has also submitted a supplemental letter opinion pursuant to Rule 2:5-1(b).

On appeal, plaintiff argues that the zoning ordinance does not clearly preclude subdivisions to create new conforming lots. He also argues that the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, does not permit any municipal body to prohibit subdivision of property. Plaintiff also argues that the decision to deny the variance to create four conforming lots is incorrect and improperly influenced by the advice of the Board's consulting engineer.

We affirm substantially for the reasons expressed by Judge Bookbinder in his tentative decision and his supplemental letter opinion. We add the following brief comments.

Woodland and plaintiff's property is located within one of the most environmentally sensitive areas of the State. The Pinelands Protection Act (the Act), N.J.S.A. 13:18A-1 to -58, regulates all residential, commercial and industrial activities within the Pinelands. The Pinelands Commission adopted a CMP, N.J.A.C. 7:50, to govern development within the Pinelands. The CMP is implemented through local municipal master plans and land use ordinances. Here, the Pinelands Commission certified that Woodland's zoning ordinance complied with the CMP.

Section 26 of the Act, codified as N.J.S.A. 13:18A-27, expressly provides that any law, rule, or regulation, including the MLUL, must yield to the Act or the CMP. Uncle v. N.J. Pinelands Comm'n, 275 N.J. Super. 82, 90 (App. Div. 1994). In other words, the overarching authority governing the Woodland zoning ordinance is the CMP authorized by the Act, see N.J.S.A. 13:18A-2 and -9.c, not the MLUL. Moreover, the Court upheld the constitutionality of the Act and the CMP almost twenty years ago. Gardner v. N.J. Pinelands Comm'n, 125 N.J. 193, 208-10 (1991).

Finally, although the CMP does prohibit conventional residential subdivisions in the PAD, N.J.A.C. 7:50-5.22(a) and (b), it does not prohibit all subdivisions. To be sure, subdivisions are strictly regulated; yet they are allowed in those cases in which the purpose of the infill area would not be frustrated. Here, however, plaintiff did not meet the strict requirements to allow a subdivision.

Affirmed.

1 This is the effective date of the CMP.