November 20, 2017

November 20, 2017

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November 17, 2017

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Appellate Division Reaffirms Position that Pinelands Protection Act Supersedes the Municipal Land Use Law

In a recent unpublished decision, Peg Leg Webb, LLC v. New Jersey Pinelands Commission, A-4016-15T4 (Unpub. App. Div. October 11, 2017), a panel of the Superior Court of New Jersey, Appellate Division, reaffirmed that the Pinelands Protection Act (Act), as well as any regulations or authorities promulgated thereto, supersede any authority vested under the municipalities by the Municipal Land Use Law (MLUL).  Specifically, the court found that the Comprehensive Management Plan (CMP), adopted by the Pinelands Commission (Commission), supersedes a land use approval issued by a municipal planning board.

In this case, the Commission recommended that certain property in Jackson Township (Township) be rezoned from Rural Development (RD) to Forest Area (FA), which rezoning was subsequently adopted in 2005.  The Township’s rezoning was challenged and the trial court invalidated the rezoning for lack of proper procedure.  In 2012, the petitioner obtained preliminary site plan approval for a resource extraction facility from the Township’s Planning Board, which assumed the property was still zoned RD.  Importantly, resource extraction was a permitted conditional use in the RD zone, but not permitted within the FA zone.  The approval was examined by the Commission, which “called up” the approval for review.  After a hearing before an Administrative Law Judge (ALJ), the Commission adopted the ALJ’s decision, which held that the trial court’s invalidation of the municipal rezoning “did not change the designation of the subject property from RD to FA on the CMP’s land capability map.” (See p. 8).  Further, the Commission’s opinion found that the invalidation of the rezoning placed the municipality out of compliance with the CMP and the Township should have either passed another ordinance, or in the alternative, applied to the Commission for certification of the prior ordinance.  Accordingly, the Commission held that the approval was properly “called up” by the Commission.

The petitioner appealed the Commission’s decision to the Superior Court of New Jersey, Appellate Division.  In its decision, the court reaffirmed the legal precedent that “the Act and the regulations promulgated under it supersede the MLUL.” (See p. 11).  In doing so, the court found that “the ordinance was not in compliance with the CMP, and the CMP trumps the ordinance.” (See p. 11).

Donna A. McBarron, Melissa A. Clarke, and Connor E. Phalon aslo contributed to this article.

© 2017 Giordano, Halleran & Ciesla, P.C. All Rights Reserved

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Michael J. Gross, Giordano Law Firm, Environmental Attorney
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Mr. Gross, chair of the Environmental Law Practice Area, handles all aspects of New Jersey and federal environmental law, including permitting and litigation, CAFRA, sewage disposal and water supply, wetlands, riparian (tidelands) law, solid waste, flood hazard areas, siting of energy and other industrial facilities, site remediation, Pinelands, Highlands, cultural resources, stormwater, wastewater planning, water and air pollution. Mr. Gross also appears before planning and zoning boards and has handled complex construction litigation matters.

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