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Mendelsohn v. New Jersey Pinelands Commission

A-0258-02T3 (N.J. Super. App. Div. 2003) (Unpublished)

ZONING; PINELANDS COMMISSION; APPROVALS—Even though the Pinelands Commission appears to have statutory approval only to review final municipal approvals, reviews of preliminary approvals are warranted to alert landowners at an early stage regarding conformance of their plans to the Pinelands Comprehensive Management Plan.

A developer filed a development application before the Pinelands Commission seeking major subdivision approval. The Commission requested additional information, which the developer provided. The Commission then requested more information and then issued a certificate of filing to the developer. Such a certificate of filing is “a prerequiste for the municipality to undertake its review of the application.” While the municipal developer’s application was pending, the local planning board amended the Master Plan in a way that served to reduce the number of units that could be built on the developer’s property. The amendment was adopted by the governing body and certified by the Pinelands Commission to the local zoning board to be “consistent with the Comprehensive Management Plan.” Between the time that the municipality’s governing body adopted the rezoning plan and the time that the Commission certified the zoning plan, the Commission received notice that the municipality had granted preliminary major subdivision approval to the developer. It then wrote to the developer, advising it that the preliminary subdivision approval information was incomplete and requested additional information that was never furnished by the developer. Several months later, the Commission received notice of a conditional final subdivision approval advising the developer that this particular approval was incomplete and requested additional information, including a copy of the approved plans and a recorded copy of the declaration of covenants and restrictions. It then scheduled a public hearing to review the issues raised by the preliminary and final subdivision approval, “specifically the density requirements and the issue of Pinelands Development Credits.” After the hearings, the Commission approved the application for development, but required the redemption of 3.75 Pinelands Development Credits for the residential dwellings that exceeded the “by right” residential density in the district. The developer then filed suit, arguing that the Commission exceeded its statutory mandate in its review of the preliminary subdivision approval issued by the municipality. Its appeal pointed to the statutory authority granted to the Commission to review local approvals, emphasizing that the statute calls for commencing such reviews “within 15 days after any final municipality or county approval thereof… .” The Commission responded by pointing to regulations it adopted with respect to reviewing preliminary local approvals. By way of rebuttal, the developer contended that the regulations adopted by the Commission were in conflict with the statute.

The Appellate Division sided with the Commission, stating “[i]n deciding whether a particular regulation is statutorily authorized, a court ‘may look beyond the specific terms of the enabling act to the statutory policy sought to be achieved by examining the entire statute in light of its surroundings and objectives.’” The Court pointed out that there was no question that the developer had to have the development approved by the Commission. Further, local review and approval required a certificate of filing from the Commission. Information needed to obtain that certificate of filing was the same information that needed to be filed with the municipality. “In light of this requirement, [the Court did] not find persuasive [the developer’s] argument that the Commission’s review of preliminary local approvals [was] ultra vires.” Instead, the Court believed that such a review was warranted “to alert landowners at an early stage to any issues raised by a proposed development in regard to the conformance of the development with the minimum standards of this Plan[.]” Further, the review of the preliminary local subdivision approval was consistent with the Comprehensive Management Plan because that Plan requires “[a] coordination and consistency component which details the ways in which local, State, and Federal programs and policies may best be coordinated to promote the goals and policies of the management plan[.]”

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