November 19, 2018

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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In a recent unpublished decision, Peg Leg Webb, LLC v. New Jersey Pinelands Commission, A-4016-15T4 (Unpub.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.

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Michael J. Gross, Giordano Law Firm, Environmental Attorney
Shareholder/Managing Partner

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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Mr. Schneider, co-chair of the Litigation Practice Area, focuses his practice in environmental, redevelopment, land use, regulatory, real estate and affordable housing law, and litigation. Mr. Schneider also handles a wide variety of redevelopment matters as well as corporate and commercial litigation. In addition to handling major litigation before both the state and federal courts and the Office of Administrative Law, he has extensive experience before the New Jersey Supreme Court and the Appellate Division.

Steven M. Dalton, Giordano Law Firm, Environmental Attorney

Mr. Dalton's primary practice is in Environmental Law. Mr. Dalton is able to utilize his background in environmental sciences to anticipate, understand and address the issues that his clients confront. He assists business and individual clients in state and federal environmental permitting, regulatory compliance, solid and hazardous waste remediation, underground storage tank compliance, land use matters and related civil and appellate litigation. Mr. Dalton has experience in handling litigation before COAH to preserve water and sewer for affordable housing developments and in...

Marc D. Policastro, Giordano Law Firm, Business Attorney

Mr. Policastro is a transactional, business attorney, who focuses his practice in development, redevelopment, environmental compliance cases, corporate transactional matters, land use, zoning and business counseling. Admitted to practice in New Jersey and New York, he has represented numerous national developers, manufacturers, cogeneration facilities and utilities, automobile dealerships, lenders, borrowers and municipal boards in myriad land use contexts, including commercial and residential development and due diligence matters. He also focuses on complex remediation cases and general...

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Of Counsel

Steven J. Corodemus focuses his practice on government affairs, transactional, and real estate development. As Chairman of the law firm’s Government Affairs Department, he seeks to identify expeditious resolution of client issues at all levels of government. He also works to assure clear and direct communications between his clients and government representatives. Furthermore he provides guidance to his clients through the administrative and legislative processes. He also counsels clients on anti pay to play compliance for clients doing business with federal, state, county and municipal...