ANDREW PETRELLA v. NEW JERSEY PINELANDS COMMISSION

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2970-04T12970-04T1

ANDREW PETRELLA,

Appellant,

v.

NEW JERSEY PINELANDS COMMISSION,

Respondent.

__________________________________________________________

 

Argued May 23, 2006 - Decided November 3, 2006

Before Judges Lefelt and R. B. Coleman.

On appeal from the New Jersey Pinelands Commission, Resolution No. PC4-05-11.

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

Brian Weeks, Deputy Attorney General, argued the cause for respondent (Zulima Farber, Attorney General, attorney; Patrick DeAlmeida, Assistant Attorney General, of counsel; Mr. Weeks, on the brief).

PER CURIAM

Appellant, Andrew Petrella, appeals from the Pinelands Commission's denial on February 10, 2005, of his application for a waiver of strict compliance with the Pinelands Comprehensive Management Plan (CMP). He argues that the Commission's denial of his application in connection with the proposed development of one single family dwelling on approximately 11.8 acres in Upper Township, Cape May County, constituted an unconstitutional exaction. Appellant contends the Commission demanded that twenty-four acres of contiguous undeveloped property be joined in his application, and that the joining of such other properties, which he did not own, meant the owners of those properties had veto power over his land use application.

The New Jersey Pinelands Commission has primary responsibility for planning in the Pinelands, and it developed the CMP as a blueprint for land use in the area. Gardner v. N.J. Pinelands Comm'n, 125 N.J. 193, 201 (1991). No development can be approved within the Pinelands unless it conforms with the CMP, except that 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).

A waiver application based on extraordinary hardship must include all property in common ownership on or after July 14, 1981, the effective date of the act. N.J.A.C. 7:50-4.63(a)(2) and (b)(1). Here, appellant's property was in common ownership with three other properties as of the effective date. The waiver standards were already in effect at the time the original parcel was fragmented and sold to the various purchasers, including appellant.

Based on that common ownership, the lots were treated as one overall parcel for purposes of development. Due to appellant's failure to include the three other parcels within his application, his application to build a single family dwelling was denied.

"Courts have only a limited role to play in reviewing the actions of other branches of government." In the Matter of Musick, 143 N.J. 206, 216 (1996). When reviewing administrative actions, courts can intervene only when the action is clearly inconsistent with the agency's statutory mission or other state policy. Ibid. The waiver provisions seek to avoid fragmentation of the Pinelands and to prevent unintended adverse effects upon the environmental resources of the Pinelands and of developments that deviate from the standards of the CMP. Nearly the entire portion of the parcel owned by appellant consists of wetlands or wetland transition areas. Thus, the Commission was acting wholly within its mission and purpose to discourage development within the Pinelands. Appellant failed to comply with N.J.A.C. 7:50-4.63, the standards for granting a waiver of strict compliance, and the Commission was constrained to deny his application.

Appellant contends no individualized assessment was conducted by the Commission in determining that the required dedication of additional land was related both to the nature and extent of the impact of the proposed development. However, at the January 14, 2005 Commission meeting, appellant's attorney rejected a Commission member's suggestion that the matter be referred to the Office of Administrative Law for a hearing, stating that "[t]here are no facts in dispute."

Appellant argues the conditions imposed in connection with an approval for development of property are a constitutional exaction and thus must have an essential nexus to the permitted use and be in "rough proportionality" to the anticipated impacts of the proposed development. However, no constitutional exaction exists here, as the Commission never required appellant to acquire the land that had been held in common ownership as of July 14, 1981. Instead, the Commission consistently stated that it was unlikely that a development permit would be issued; it never directed appellant to buy the adjoining lots. Although the regulations limited the use appellant could make of his property, they did not require him to deed any portion of his lot to the State. Compare Dolan v. City of Tigard, 512 U.S. 374, 114 S. Ct. 2309, 129 L. Ed. 2d 304 (1994) (property owners required to permanently dedicate a portion of their land to the public); Nollan v. California Coastal Comm'n, 483 U.S. 825, 107 S. Ct. 3141, 97 L. Ed. 2d 677 (1987).

Furthermore, appellant failed to demonstrate that the property is incapable of having a minimum beneficial use, particularly in light of the possibility that appellant could use the property in the Upper Township Density Transfer Program authorized under the CMP.

While it is unfortunate that appellant would have been permitted to proceed with this development if the property had not been in common ownership as of the effective date of the CMP, the Commission did not act in an unconstitutional manner in applying its own regulation. Moreover, appellant could not have had a genuine expectation that he could develop without strictly complying with the regulations affecting the Pinelands or qualifying for a waiver of strict compliance.

Affirmed.

 

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A-2970-04T1

November 3, 2006