Gardner v. New Jersey Pinelands Com'n

• Decision Date: 13 June 1989
• Citation: Gardner v. New Jersey Pinelands Com'n, 562 A.2d 812, 235 N.J.Super. 382 (N.J. Super. App. Div. 1989)
• Parties: Hobart R. GARDNER, Plaintiff-Appellant, v. NEW JERSEY PINELANDS COMMISSION, New Jersey Department of Environmental Protection, Commissioner of Environmental Protection and John Doe(s), Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 382

235 N.J.Super. 382

562 A.2d 812

Hobart R. GARDNER, Plaintiff-Appellant, v.NEW JERSEY PINELANDS COMMISSION, New Jersey Department of Environmental Protection, Commissioner of Environmental Protection and John Doe(s), Defendants-Respondents.

Superior Court of New Jersey Appellate Division.

Argued May 3, 1989.

Decided June 13, 1989.

Patrick F. McAndrew, for plaintiff-appellant(Brandt, Haughey, Penberthy, Lewis & Hyland, attorneys, Patrick F. McAndrew and Sandford F. Schmidt, Moorestown, on the brief).

Mary C. Jacobson, Deputy Atty. Gen., for defendants-respondents(Peter N. Perretti, Jr., Atty. Gen., attorney, James J. Ciancia, Asst. Atty. Gen., of counsel and Mary C. Jacobson, on the brief).

Before Judges GAULKIN, R.S. COHEN and ARNOLD M. STEIN.

PER CURIAM.

Plaintiff, a landowner, sought an order declaring that certain restrictions on development of his property contained in the Pinelands Comprehensive Management Plan constitute a partial taking and therefore require defendants to institute condemnation proceedings.The position plaintiff asserted in his complaint and at trial was correctly disposed of by Judge Wells.As to those matters we affirm essentially for the reasons set forth in his opinion, which is found at 227 N.J.Super. 396, 547 A.2d 725(Ch.Div.1988).

In the opinion, however, Judge Wells noted that there was "a late-blooming equal protection argument suggested in plaintiff's brief."Plaintiff took the judge's suggestion to amend his complaint to plead a cause of action under the equal protection clause.The amendment asserted that the Farmland Preservation Program, under the Right to Farm Act, N.J.S.A. 4:1C-1, et seq., is a statewide program under which the State pays persons situated similarly to plaintiff for development restrictions at fair market value; that no Pinelands acreage has been purchased; that, because regulations on the use of plaintiff's land already bar development, there is nothing for plaintiff to sell under the Program; that the difference in treatment is unjustified by any difference between Pinelands farmland and non-Pinelands farmland, and therefore plaintiff is denied the equal protection of the laws.

Judge Wells rendered an oral opinion.He noted that the attack before him was on the facial validity of the regulatory scheme; the Farmland Preservation Program was voluntary and applied to farms in the Pinelands.Plaintiff had made no application for inclusion of his lands in the Program, or...