IN RE APPLICATION OF ROBERT T. WINZINGER INC

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APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

IN RE APPLICATION OF

ROBERT T. WINZINGER, INC.

December 22, 2014

 

Argued October 16, 2014 Decided

Before Judges Alvarez, Maven, and Carroll.

On appeal from the New Jersey Pinelands Commission, No. PC4-13-17.

Richard M. Hluchan argued the cause for appellant, Robert T. Winzinger, Inc. (Hyland Levin LLP, attorneys; Mr. Hluchan, of counsel and on the briefs).

Kristen D. Heinzerling, Deputy Attorney General, argued the cause for respondent New Jersey Pinelands Commission (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Heinzerling, on the brief).

PER CURIAM

Robert T. Winzinger, Inc. (Winzinger) appeals from the June 13, 2013 resolution adopted by the New Jersey Pinelands Commission (Commission) denying its application to resume resource extraction activities on its property. The resolution followed an earlier executive director's report opining that Winzinger's proposed sand mining operation on its Woodland Township property would result in irreversible, adverse impact to local populations of northern pine snakes, a threatened and endangered species, found throughout the 117-acre survey area surrounding the thirty acres proposed to be mined. We affirm, concluding that although Winzinger's business is "grandfathered" in as a preexisting use, it must nonetheless "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." Robert T. Winzinger, Inc. v. Pinelands Comm'n, No. A6032-04 (App. Div. June 5, 2006) (slip op. at 8).

I

By way of background, Winzinger purchased the subject 285acre site in 1975, and obtained a permit from Woodland Township to mine the property for sand and gravel. The site is located in the preservation area district of the Pinelands National Preserve. Pursuant to N.J.A.C. 7:50-6.65(a), Winzinger registered its mining operation with the Commission prior to January 21, 1981. N.J.A.C. 7:506.65 provides that no resource extraction operations, such as those conducted by Winzinger, are permitted in the preservation area district unless they were registered with the Commission on or before that date. After litigation in the early 1980s, the Commission issued a two-year permit for Winzinger to continue its mining operations on the property. It did so until November 1984, when the two-year permit expired.

When Winzinger applied to resume its operations in 2001, the Commission initially denied the application on the basis that the enterprise had been abandoned. After years of litigation, we reversed the Commission's denial, concluding that "the Commission's conditioning of appellant's grandfathered mining use upon proof of zoning concepts found nowhere in the applicable regulations[, nor] referenced on its communications with appellant, is fundamentally unfair." Winzinger, supra, slip. op. at 9. As we have said, we also noted that Winzinger was required to "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." Id. at 8.

On February 13, 2007, when Winzinger submitted an application to resume mining operations on thirty acres of the property, the Commission requested the applicant conduct a threatened and endangered species survey. The survey established that the activity would result in "irreversible, adverse impacts to local populations of [n]orthern [p]ine [s]nakes." The Commission's Pineland Comprehensive Management Plan (CMP), N.J.A.C. 7:50-1.1 to 10.35, among other things, requires that any mining operations in the Pinelands be conducted in accordance with the threatened and endangered animal species protection standard, N.J.A.C. 7:50-6.33. Additionally, such compliance is required by the Woodland Township land use ordinance.

On February 21, 2012, Woodland Township's Land Development Board passed a resolution granting a mining permit to Winzinger subject to the Commission's approval of a northern pine snake habitat protection and management plan. No such plan has been submitted to the Commission. The issues regarding threatened and endangered species were not specifically raised in any of the prior proceedings.1 The record does not reveal whether the site conditions were different at the time of the application, or any other reason for the omission of even any mention by any party of the protection standard.

II

Judicial review of administrative decisions is limited. In re Taylor, 158 N.J. 644, 656 (1999). An appellate court "will not reverse an agency's decision unless: (1) it was arbitrary, capricious, or unreasonable; (2) it violated express or implied legislative policies; (3) it offended the State or Federal Constitution; or (4) the findings on which it 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 (2007).

The reviewing court generally gives "substantial deference to the interpretation an agency gives to a statute that the agency is charged with enforcing." R & R Mktg., LLC v. Brown-Forman Corp., 158 N.J. 170, 175 (1999) (internal quotation and citation omitted). But this court is "in no way bound by the agency's interpretation of a statute or its determination of a strictly legal issue." Norfolk S. Ry. Co. v. Intermodal Props., LLC, 215 N.J. 142, 165 (2013) (internal quotation and citation omitted). In determining the meaning of a statute, the court must "look first to the plain language of the statute, seeking further guidance only to the extent that the Legislature's intent cannot be derived from the words that it has chosen." Pizzullo v. N.J. Mfrs. Ins. Co., 196 N.J. 251, 264 (2008).

A.

In 1978, the Legislature enacted the Pinelands Protection Act (PPA), which established the Commission. N.J.S.A. 13:18A-1 to -58. The Act also called for the Commission to establish the CMP to properly implement a preservation program for the Pinelands. N.J.S.A. 13:18A-8; see also Gardner v. N.J. Pinelands Comm'n, 125 N.J. 193, 198-201 (1991) (detailing the history and significance of the Commission). The CMP is intended "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 of the Pinelands." N.J.A.C. 7:50-1.3.

Subchapter six of the CMP outlines the management programs and minimum standards governing development and land use of the Pinelands. N.J.A.C. 7:50-6. Part six of subchapter six specifically pertains to resource extraction. N.J.A.C. 7:50-6.61 to -6.69. The purpose of part six is "to ensure that extraction activities do not adversely affect long-term ecological values in the Pinelands." N.J.A.C. 7:50-6.61.

Under part six, resource extraction activities must comply with (1) the general limitations found in N.J.A.C. 7:50-6.63 and (2) the standards for resource extraction and restoration found within N.J.A.C. 7:50-6.68 and -6.69. Extraction operations that occur within the preservation area district are subject to additional limitations found within N.J.A.C. 7:50-6.65, also known as the "grandfather" provision. Where resource extraction activities are authorized, the Commission generally issues permits for a two-year period. N.J.A.C. 7:50-6.64(a).

Resource extraction activity on land located anywhere in the Pinelands is subject to the "general limitations" section of subchapter six, part six, which provides

(a) Except as expressly authorized in [the CMP], 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 [the CMP] or from complying with the standards of this subchapter [N.J.A.C. 7:50-6].

[N.J.A.C. 7:50-6.63.]

Prior to 1994, subsection (b) of the general limitations provision did not explicitly require resource extractions to comply with the standards of subchapter six, but rather contained language similar to that of the grandfather provision. The pre-amendment version of this statute provided in relevant part

(b) No resource extraction operations shall be permitted in the Preservation Area District . . . 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.

[ 26 N.J.R. 165, 188 (Jan. 3, 1994).]

The Commission noted that the purpose of the 1994 amendments was both to better protect the Pinelands environment and to provide regulatory clarity. 26 N.J.R. 165(a) (Jan. 3, 1994).

Property located within the preservation area district, however, is subject to additional limitations under N.J.A.C. 7:50-6.65. The Legislature has determined that the preservation area district is "especially vulnerable to environmental degradation" and thus subject to "more stringent restrictions on the development and use of land." N.J.S.A. 13:18A-2. Generally, resource extraction is not permitted on land within the preservation area district unless it was registered with the Commission before the January 21, 1981 deadline. The grandfather provision provides in relevant part

(a) No resource extraction operations shall be permitted in the Preservation Area District . . . 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.

. . . .

(c) Resource extraction operations shall be considered nonconforming uses in the Preservation Area District . . . and, as such, shall be subject to the requirements of N.J.A.C. 7:50-5.2(a).

[N.J.A.C. 7:50-6.65.]

Sections -6.65(c) and -5.2(a) were added to the CMP in 2007. See 39 N.J.R. 1970(a) (May 21, 2007); 39 N.J.R. 5077(b) (Dec. 3, 2007). The Commission's purpose in enacting the 2007 amendments was to make nonconforming uses2 subject to abandonment regulations. Ibid. The Commission noted that its goal "has been and will continue to be the ultimate cessation of nonconforming uses throughout the Pinelands." 39 N.J.R. 1970(a).

N.J.A.C. 7:50-5.2 contains additional requirements for all preexisting nonconforming uses of property in the Pinelands. Section -5.2(a) pertains to the continuation of a preexisting nonconforming use, while sections -5.2(b) and -5.2(c) concern expansions and alterations of nonconforming uses. The general premise of section -5.2 is that nonconforming uses are permitted to continue, so long as they have not been abandoned. The statute provides in relevant part

(a) Notwithstanding the use restrictions contained in [N.J.A.C. 7:50-5.21 to -5.37], a municipality may permit the continuation of any nonconforming use, provided that such use is not abandoned, and further provided that no such use shall be expanded, altered, or changed to another nonconforming use, except as provided in (b) and (c) below.

(b) Notwithstanding the use restrictions contained in [N.J.A.C. 7:50-5.21 to -5.37], a municipality may permit the expansion or alteration of any nonconforming use existing on January 14, 1981 . . . provided that

1. The use was not abandoned or terminated subsequent to January 14, 1981;

2. The expansion or alteration of the use is in accordance with all of the minimum standards of N.J.A.C. 7:50-6;

. . . .

(c) A municipality may include in its ordinance a provision which, notwithstanding the use restrictions contained in [N.J.A.C. 7:50-5.21 to -5.37], permits a change in any nonconforming use existing on January 14, 1981 . . . provided that

1. The use was not abandoned or terminated subsequent to January 14, 1981;

2. The new use is in accordance with all of the minimum standards of N.J.A.C. 7:50-6 . . . .

[N.J.A.C. 7:50-5.2.]

The heart of Winzinger's points on appeal is that it need not comply with CMP requirements which came into effect after January 21, 1981, the filing date for registration of mining operations continuing under the Commission's grandfather provision. It is undisputed that Winzinger is subject to the resource extraction standards set forth in N.J.A.C. 7:50-6.65, 5.2, -6.68, and -6.69.3 It is also undisputed that Winzinger's proposed mining operation violates the threatened and endangered species provision, N.J.A.C. 7:50-6.33, as virtually the entire property is inhabited by northern pine snakes. For the reasons that follow, we conclude that Winzinger's preexisting resource extraction operation is subject to the threatened and endangered species provision.

The "general limitations" provision of subchapter six, part six (resource extraction) of the CMP provides "[n]othing in this Part shall be construed to authorize resource extraction activities without . . . complying with the standards of this subchapter." N.J.A.C. 7:50-6.63(b) (emphasis added). The grandfather provision is found within "this Part," while the threatened and endangered species regulation is located in "this subchapter." Thus, on its face, the general limitations provision requires that grandfathered mining activities must comply with the threatened and endangered species standard.

It can be inferred from the general limitations provision's title, along with its location in part six (resource extraction) of the CMP, that it is intended to set forth general restrictions on all resource extraction activities in the Pinelands. Nothing in the grandfather provision, or any other provision of the CMP for that matter, explicitly exempts preexisting resource mining operations from compliance with general limitations. Rather, the grandfather provision merely states that since the CMP no longer permits resource extractions in the preservation area of the Pinelands, any preexisting mining use is nonconforming.

The fact that a nonconforming use in the preservation area is permitted does not preclude the Commission from regulating the activity in such a manner as to fulfill its obligation "to promote orderly development of the Pinelands so as to preserve . . . ecological . . . resources . . . ." N.J.A.C. 7:50-1.3. See also N.J.S.A. 13:18A-8. For example, though the grandfather provision does not reference N.J.A.C. 7:50-6.68 or -6.69, Winzinger concedes that as we earlier found, its property is subject to these requirements. Winzinger, supra, slip op. at 8. It would be inconsistent, not to say arbitrary, to subject preexisting mining operations to some but not all of the provisions in subchapter six, part six.

Winzinger argues that the general limitations provision is merely a blanket provision stating the obvious. Relying on principles of statutory construction that regulations be construed in pari materia, as a unitary and harmonious whole, and that specific rules prevail over general rules, Winzinger reasons that this general provision must yield to the other more specific provisions such as the grandfather clause. See Marino v. Marino, 200 N.J. 315, 330 (2009); Scott v. Dep't of Corrs., 416 N.J. Super. 512, 519 (App. Div. 2010). We do not agree with the premise, however, that the general limitations section cannot be construed as a harmonious whole with the grandfather provision.

As we previously discussed, the plain language of the general limitations provision is specific and does not conflict with, or need to yield to, the grandfather provision. The CMP's stated purposes and objectives clarify any ambiguity in the plain language of the relevant regulations. The CMP recognizes that threatened and endangered animal species "constitute an important part of the essential ecological character of the Pinelands that requires careful management and protection." N.J.A.C. 7:50-6.31. Similarly, the Legislature acknowledged in passing the PPA

that the pinelands area . . . provide[s] a unique habitat for a wide diversity of rare, threatened, and endangered plant and animal species . . . that the continued viability of such area and resources is threatened by pressures for residential, commercial[,] and industrial development; that the protection of such area and resources is in the interests of the people of this State and of the Nation . . . .

. . . .

The Legislature further finds and declares that the current pace of random and uncoordinated development and construction in the pinelands area poses an immediate threat to the resources thereof, especially to the survival of rare, threatened[,] and endangered plant and animal species and the habitat thereof, . . . and, that, . . . it is necessary to impose certain interim limitations upon the local approval of applications for development in the preservation area, and upon certain State and local approvals in the pinelands area, all as hereinafter provided.

[N.J.S.A. 13:18A-2 (emphasis added).]

To permit Winzinger to engage in resource extraction that endangers threatened wildlife would be inconsistent with the CMP's purpose.

B.

Winzinger's remaining arguments are equally unavailing. Winzinger points out that N.J.A.C. 7:50-5.2(a) does not specifically reference compliance with subchapter six, in contrast with sections 5.2(b) and -5.2(c), and asserts that this evidences the Commission's intention that grandfathered uses be exempted from subchapter six. That interpretation would result in fewer restrictions on grandfathered activities in the preservation area compared to other areas in the Pinelands. This interpretation conflicts with the Legislature's express purpose in creating the preservation area, which is subject to stricter regulation. See N.J.S.A. 13:18A-2. Preexisting resource extraction operations in the preservation area are governed by (1) the general limitations on resource extraction (N.J.A.C. 7:50-6.63) and (2) the additional special limitations in the grandfather clause (N.J.A.C. 7:50-6.65), which triggers the limitations on preexisting nonconforming uses (N.J.A.C. 7:50-5.2). Therefore, regardless of section -5.2(a)'s requirements, preexisting resource extractions must comply with subchapter six by way of section 6.63(b).

C.

Finally, Winzinger asserts that the Commission's failure to previously enforce the threatened and endangered species policy to the site is consequential. Although the record is devoid of any mention of the issue in earlier litigation, it does not follow that the Commission is therefore unable to enforce an otherwise lawful requirement. A public entity is not precluded or estopped from enforcing a regulation merely because there has been laxity in its enforcement. See Newark Council No. 21 v. James, 318 N.J. Super. 208, 217 (App. Div. 1999); Abrahams v. Civil Serv. Comm'n, 65 N.J. 61, 75 (1974); Kennedy v. Newark, 29 N.J. 178, 192 (1959).

We find that the Commission's interpretation of the CMP was not arbitrary, capricious, or unreasonable. It appropriately enforces legislative policies the agency is required to advance, offends no constitutional right, and is based on substantial, credible evidence in the record. See Univ. Cottage Club of Princeton, supra, 191 N.J. at 48.

Affirmed.

1 At the first hearing before the Office of Administrative Law, however, Winzinger stipulated that it would abide by certain wetlands buffer and other management standards in the CMP.

2 A nonconforming use is defined as "a use or activity, which was lawful prior to the adoption or amendment of [the CMP], but which fails to conform to the requirements of the municipal zoning district and/or Pinelands management area in which it is located by reasons of adoption or amendment of [the CMP]." N.J.A.C. 7:50-2.11.

3 The parties agree that despite the cessation of actual mining operations years ago, the operations will not be considered to have been abandoned.