City of Newark v. Township of Hardyston
| Citation | 285 N.J.Super. 385,667 A.2d 193 |
| Parties | CITY OF NEWARK, Plaintiff-Respondent, and The State of New Jersey, Department of Environmental Protection, Intervenor-Respondent, v. TOWNSHIP OF HARDYSTON, Defendant-Appellant. |
| Decision Date | 13 November 1995 |
| Court | New Jersey Superior Court – Appellate Division |
Kevin D. Kelly, Newton, for appellant (Kelly, Gaus & Holub, attorneys; Mr. Kelly, on the brief).
Philip S. Elberg, Newark, for respondent (Medvin & Elberg, attorneys; Mr. Elberg and Edna Y. Baugh, of counsel, and on the brief).
Caroline Vachier, Deputy Attorney General, Newark, for intervenor-respondent (Deborah T. Poritz, Trenton, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, Newark, of counsel; Lorenza Evans, Deputy Attorney General, Roseland, on the brief).
Before Judges LONG, MUIR, Jr. and BROCHIN.
The opinion of the court was delivered by
LONG, P.J.A.D.
The primary issue presented on this appeal is whether a provision of the Watershed Protection Act (L. 1988, c. 163 L. 1990, c. 19) which places limitations on the conveyance of watershed property continues to be valid. We have concluded that the moratorium is still in effect and is a factor to be considered in valuing watershed land for tax purposes.
The case arose out of the filing of four real property tax appeals by the City of Newark that contested the assessment of Newark's watershed property in the Township of Hardyston. The subject parcels are located in the Pequannock Watershed and are part of the 35,000 acre Newark watershed property located in Passaic, Sussex and Morris counties. They are designated as Block 20, Lot 32; 1 Block 36, Lot 9.01; Block 37, Lot 2; and Block 38, Lot 3 on the Hardyston Township tax map. The watershed designation arises out of the fact that rainfall travels from the parcels to the Pequannock River and then to the Charlottesburg Reservoir. The property is characterized by steep slopes, wetlands, rare species and soil limitations. These conditions, along with resulting environmental constraints, render less than fifteen percent of the land suitable for development.
The property is located in the Minimum Impact Development zone of Hardyston which permits cluster development of detached single-family dwellings with a maximum density of .2 units per acre. The parties and the Tax Court agreed that the highest and best use of the four parcels is to develop them for single-family residential use as if they were one parcel. Newark has no plans for development.
At the heart of the appeals is Hardyston's contention (advanced in a motion for partial summary judgment in the Tax Court) that the moratorium in the Act should not be considered in determining the true value of Newark's watershed property. Seven other taxing districts joined the motion in support of Hardyston, and the Attorney General intervened on behalf of the Department of Environmental Protection (DEP) in defense of the continued vitality of the moratorium. Judge Pizzuto denied Hardyston's motion, affirming the continued viability of the Act. Thereafter a trial was held before Judge Lasser who determined the true value and proper assessments of the four parcels, discounting the value because of the moratorium. Hardyston appeals.
It is undisputed that the purpose behind the passage of the Watershed Protection Act was to "safeguard the interests of water quality, open space, recreation and conservation." [In re Petition of Hackensack Water Co. to the Watershed Property Review Bd., 249 N.J.Super. 164, 173, 592 A.2d 250 (App.Div.), certif. denied, 127 N.J. 551, 606 A.2d 364 (1991).] The specific impetus for the Act was the threatened transfer of particular watershed property in Bergen County which alerted the Legislature to the need for watershed protection across the board. The vehicle chosen was a moratorium on the transfer of watershed lands, to permit time for the DEP to study and report on the need for and means to secure watershed protection. Included in the proposed study was an evaluation of the effectiveness of establishing buffer zones around public water supply reservoirs for the purpose of protecting drinking water quality.
DEP was further directed to transmit its study, upon completion, to the Governor, the BPU and the Legislature. The Act provided for exemptions from the moratorium, but only upon a showing "that there is a compelling public need for the conveyance of the property, that the denial of the exemption would result in extraordinary hardship, or that the sale or development of the watershed property is otherwise consistent with the purposes of this act." Applications for exemptions under the Moratorium Act were made subject to consideration by the Review Board, which was created by the Act, consisting of the Commissioner of DEP, the Commissioner of the Department of Community Affairs and the President of the BPU.
. . . . .
According to a news release from the office of Governor Kean dated November 17, 1988, "[t]he legislation was introduced to protect 287 acres in Bergen County owned by the Hackensack Water Company from sale and development." The release also quoted the Governor as stating that "[p]reservation of open space is a top environmental priority of this Administration."
. . . . .
The resoluteness with which the Legislature intended the moratorium to be enforced may be gathered from the narrow limitations placed upon exemptions.... [E]xemptions may be granted only where there is a "compelling public need," "extraordinary hardship," or where it can be shown that the conveyance will be "otherwise consistent with the purposes of this act." While the exemption under review is based on a finding that the conveyance will be consistent with the purposes of the act, the use of words like "compelling public need," and "extraordinary hardship," in the same sentence reveal the stringency under which Hackensack seeks its exemption must be applied.
The 1988 version of the Act stated:
For a period of eighteen months commencing on the effective date of this Act, no municipality, municipal utilities authority or public utility shall convey any land utilized for the purpose of the protection of a public water supply on the effective date of this Act....
The DEP undertook preparation of its report in conjunction with the Cook College, Department of Environmental Resources (Department). In the Report to Governor Thomas H. Kean, the New Jersey State Legislature, and the Board of Public Utilities: Evaluation and Recommendations Concerning Buffer Zones Around Public Water Supply Reservoirs (December 1989), the Department found that buffer zones around water supply reservoirs provide some protection for drinking water quality. The Report further urged application of multi-zone buffers around both water supply reservoirs and their contributing tributaries to enhance water quality protection. Report, supra, at i. Also recommended was further legislation requiring the adoption of regulations establishing appropriate and effective buffer zones for all watersheds associated with water supply reservoirs, tributaries and intake waters. Ibid. Finally, the Department recommended,
that until such time that a multi-zone buffer regulatory program is in effect for watershed associated with water supply reservoirs, tributaries and intakes, that no lands currently be conveyed unless it can be demonstrated that the intended use of the property would not result in measurable, calculable or predictable degradation of the existing water quality of the water supply reservoir, tributary, or intake waters.
[Ibid. (emphasis added) ]
Based on this report, the Department recommended that the Legislature adopt a system-wide set of controls with a broader scope than buffer zones alone.
In 1990, when the eighteen month period referred to in the 1988 Act was about to expire, the Legislature adopted L. 1990, c. 19 § 1, which amended the statute to read in part:
No municipality, municipal utilities authority or public utility shall convey any land utilized for the purpose of the protection of a public water supply prior to the adoption by the Department of Environmental Protection of the rules and regulations establishing buffer zones for all watershed lands associated with public water supply reservoirs for the purpose of protecting drinking water quality required pursuant to the "Watershed Protection Act," P.L. ----, c. ----.... (now before the Legislature as Senate Bill No. 2339 of 1990).
The Legislature specifically acknowledged the DEP report in a statement to a companion bill to the moratorium extension:
The Department of Environmental Protection recently completed the study evaluating the effectiveness of establishing buffer zones around public water supply reservoirs for the protecting drinking water quality required pursuant to section 3 of P.L. 1988, c. 163. In its report to the Governor, the Board of Public Utilities, and the Legislature, the DEP recommends that the Legislature enact legislation that would require the department to adopt rules and regulations establishing appropriate and effective buffer zones for all watersheds associated with water supply reservoirs, tributaries, and intakes. Further, the department strongly recommends that the moratorium should continue until the buffer zone regulatory program is in place.
[Reprinted at N.J.S.A.
48:3-7].
Neither Senate Bill Number 2339 of 1990, nor any similar legislation was ever enacted although the Legislature has continued to wrestle with the problem. In the 1992-1993 legislative session, for example, nine watershed bills were introduced. Currently there are a number of bills regarding this issue. One bill would extend the moratorium (SB 808) and three would repeal it. (SB 1393, AB 2218, AB 1003). According...
To continue reading
Request your trial