Gardner v. New Jersey Pinelands Com'n

• Decision Date: 08 July 1988
• Citation: Gardner v. New Jersey Pinelands Com'n, 547 A.2d 725, 227 N.J.Super. 396 (N.J. Super. 1988)
• Parties: Hobart R. GARDNER, Plaintiff, v. NEW JERSEY PINELANDS COMMISSION, et al. Defendants.
• Court: New Jersey Superior Court

Page 396

227 N.J.Super. 396

547 A.2d 725

Hobart R. GARDNER, Plaintiff, v.NEW JERSEY PINELANDS COMMISSION, et al. Defendants.

Superior Court of New Jersey, Chancery Division Burlington County.

Decided July 8, 1988.

Patrick McAndrew, Morristown, for plaintiff(Brandt, Haughey, Penberthy, Lewis & Hyland, attorneys).

Mary C. Jacobson, Deputy Atty. Gen., for defendants.

WELLS, J.S.C.

This is an inverse condemnation action brought on verified complaint and order to show cause.I note at the outset that it should have been captioned in the Law Division.N.J.S.A. 20:3-5.Orleans Builders and Dev. v. Byrne, 186 N.J.Super. 432, 453 A.2d 200(App.Div.1982).Nonetheless, this court will decide it to avoid an unnecessary transfer.Cf.R.4:3-1(b).The present motion is one to dismiss for failure to exhaust administrative remedies and to state a claim upon which relief can be granted.Since matters outside the complaint itself have been submitted the court has treated the motion as one for summary judgment.At least, in part, the case is ripe for such disposition.

Before proceeding the court notes that this case is not an appeal from the final decision or action of a State Administrative Agency under R.2:2-3(a)(2).The case does not challenge the Pinelands Commission's procedure in adopting its second Comprehensive Management Plan or any decision or action under that plan.The action asserts that in certain material respects the Comprehensive Management Plan as embodied in N.J.A.C. 7:50-1 et seq;29 N.J.R. 2011 constitutes a partial taking of plaintiff's property.That allegation is cognizable here.Pfleger v. N.J. State Hwy Dept, 104 N.J.Super. 289, 250 A.2d 16(App.Div.1968).Cf.Montclair v. Twp. of Hughey, 222 N.J.Super. 441, 537 A.2d 692(App.Div.1987);Asbury Park Bd. of Education v. Murnick, 224 N.J.Super. 504, 540 A.2d 1318(App.Div.1988).

Plaintiff alleges that he is the owner of a 216.5 acre farm in Shamong Township which has been in his family since 1902.He presently raises and sells sod and the farm is mortgaged for over $200,000.Situate thereon are a two family house and related barns and outbuildings.The balance of the land is farmland or wooded.Over the years plaintiff has watched as zoning regulations applicable to his farm have become more and more stringent.

The gist of plaintiff's complaint is that with the Commission's adoption of its second Pinelands Comprehensive Management Plan (CMP) in November 1987the State crossed the line between permitted regulation of private property and a partial taking thereof.Plaintiff would agree to submit to the Commission a development plan using the density permitted under a provision of the CMP--one house per 40 acres.N.J.A.C. 7:50-5.24(a)3 He argues that the required exaction from him of a deed restriction against use for other than agricultural purposes as a condition of approval for such a plan constitutes a partial taking of his property for which just compensation should be paid.

More specifically, plaintiff alleges that prior to the enactment of the Pinelands Protection Act (Act)N.J.S.A. 13:18A-1 et seq, effective June 28, 1979, he was able, under Shamong's zoning ordinance, to subdivide his farm into about 200 building lots.Following the enactment of the Act and the promulgation of the first CMP his farm was included in the Agricultural Production Area whereunder the density of allowed housing was reduced to one home per ten acres.Under that CMP plaintiff began a development plan for a 17 lot "farmette"subdivision.Before those plans got very far, however, the Commission adopted a second CMP which identified certain permitted uses in Agricultural Production Areas including the following:

Residential dwelling units at a gross density of one unit per 40 acres, provided that the units shall be clustered in accordance with (c) below.N.J.A.C. 7:50-5.24(a)3.

Subparagraph (c) provides:

No residential dwelling unit shall be located on a lot of less than 3.2 acres: provided, however, that a municipality shall require the residential density assigned pursuant to N.J.A.C. 7:50-5.24(a)3 to be clustered on one acre lots ... The remainder of the parcel not assigned to individual residential lots shall be permanently dedicated for agricultural uses through recordation of a restriction on the deed to the property.N.J.A.C. 7:50-5.24(c)

The court finds, as plaintiff alleges, that these provisions effectively reduce the number of possible houses on his farm to five, clustered on one acre lots, and require a permanent dedication of his remaining property--nearly 98% of it--to farmland.Furthermore, the other clauses of N.J.A.C. 7:50-5.24 are as stringent as subparagraph (a)3.Section 5.24(a)(1) allows dwellings on 3.2 acres but the occupant must be "culturally linked" to "the essential character of the Pinelands,"5.32(a)3i-iii, and "cannot have developed a dwelling unit within the previous five years."5.32(a)2.Section 5.24(a)2i-iv permits one house per 10 acres but is conditioned upon active farm use .. Another condition, as in the case of "culturally linked" housing, requires that a residential lot must not have been "subdivided from the property within the previous five years."5.24(a)2v.These provisions relating to housing and the other uses permitted in the Agricultural Production Area ¹ effectively limit the development of vacant land to agricultural uses or uses closely allied therewith or accessory thereto.

The Commission's affidavits, submitted by its Assistant Directors for Planning and Management and for Development Review, track the almost 10 year history of the comprehensive regulatory scheme adopted by the Commission under the aegis of the Act.Beginning in 1982 a significant issue under discussion was "whether, and under what conditions, non-farm housing should be permitted in Agricultural Production Areas."Stokes Affidavit, Paragraph 5.Apparently, under the first CMP "the Commission experience with the agricultural housing provision suggested that it was evolving into a 10 acre subdivision requirement with no guarantee that farm uses would continue after construction."Stokes Affidavit, Paragraph 6.The Commission staff recommended a two-prong approach to correct this perceived problem with the CMP:

A large-lot program was endorsed that would allow a housing density of 1 unit per 40 acres, with a requirement that the homes be located on one acre lots.The Subcommittee also decided that the existing farm-related housing provision in the CMP should be strengthened to ensure that the housing be accessory to an active agricultural operation.Stokes Affidavit, Paragraph 6.

... Our report went on to state that the Commission's general practice when clustering was to require that the remainder of the property be subject to a perpetual deed restriction to protect it from future development.

Eventually the Commission adopted the approach which is now found embodied in the provisions quoted on pages 726-727, supra.

The test for when a regulatory action by government amounts to a taking is reasonably well settled in this State.In Morris County Land v. Parsippany-Troy Hills, 40 N.J. 539, 557, 193 A.2d 232(1963)the court said that a taking occurs when the regulation "so restricts the use that the land cannot practically be utilized for any reasonable purpose or when the only permitted uses are those to which the property is not adapted or which are economically unfeasible."The test has been used with arguable consistency.CompareMorris County, supra, Lomarch Corp v. Mayor of Englewood, 51 N.J. 108, 237 A.2d 881(1968)andSheerr v. Evesham Twp., 184 N.J.Super. 11, 51-56, 445 A.2d 46(Law Div.1982) where a taking was found with E. Rutherford Ind. Pk v. State, 119 N.J.Super. 352, 291 A.2d 588(Law Div.1972);Cappture Realty Corp v. Bd of Adj Elmwood Park, 126 N.J.Super. 200, 216-17, 313 A.2d 624(Law Div.1973)Sands Point Harbor, Inc. v. Sullivan, 136 N.J.Super. 436, 440, 346 A.2d 612(App.Div.1975);American Dredging Company v. State, 161 N.J.Super. 504, 391 A.2d 1256(Chan.Div.1978);Usdin v. DEP, 137 N.J.Super. 311, 414 A.2d 280(1980), where no taking was found.In a comprehensive review of these cases and many others Judge Haines, in Sheerr, supra, summarized his reasons for finding a taking in that case as follows:

[The Evesham regulations] go too far, destroy beneficial use, deny any reasonable return on the property and fail to advance a legitimate municipal interest.

When the public good is balanced against the private harm, the harm far outweighs the good.No doubt the public will benefit if the Sheerr property is kept in its natural state since its trees will provide an appealing vista.No other public benefit is shown to exist.The public cannot use the property: it is privately owned.On the other hand, the property has been greatly depreciated in value and denied the opportunity for any realistic use.The regulations do not represent a valid exercise of the police power; they are not "reasonable in degree and ... necessary to the physically harmonious growth of land use in the municipality, [serving] the overall public interest of the community."Harrington Glen, supra52 N.J. at 32[243 A.2d 233].They fall clearly with the rule of Morris Cty. Land, which held that restricting the use of land to open space was a taking.

The court concludes that Sheerr and the other "taking"cases are distinguishable from the instant case.Regulation in this case has not crossed the line.Analysis must commence with the finding that the Commission is vested with plenary authority to regulate development in the Pinelands.This authority encompasses the power, almost identical to that of municipalities, to zone property.N.J.S.A. 13:18A-8.Cf.N.J.S.A. 40:55D-62 et seq.Indeed, the authority of municipalities located within the Pinelands to establish minimum zoning standards is for all practical purposes preempted by the Commission at...