Opinion
DOCKET NO. A-1464-10T3
07-27-2012
D.D. RESIDENTIAL LTD. PARTNERSHIP, Petitioner-Appellant, v. NEW JERSEY PINELANDS COMMISSION, Respondent-Respondent.
Stephen R. Nehmad argued the cause for appellant (Nehmad Perillo & Davis, P.C., attorneys; Mr. Nehmad, on the brief). Mark Collier, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Collier, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino, Ashrafi and Fasciale.
On appeal from the New Jersey Pinelands Commission, Docket No. 1981-0562.001.
Stephen R. Nehmad argued the cause for appellant (Nehmad Perillo & Davis, P.C., attorneys; Mr. Nehmad, on the brief).
Mark Collier, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Collier, on the brief). PER CURIAM
Appellant D.D. Residential Ltd. Partnership (D.D.) is the owner of the Hamilton Greene apartment complex in Hamilton Township, Atlantic County. The 140-acre property is located in the Pinelands National Reserve, within the jurisdiction of respondent New Jersey Pinelands Commission. In the 1980s, D.D.'s predecessor obtained land use and site plan approvals to build 676 residential units in five phases of construction. Three of the phases were completed, and certificates of occupancy were issued for 416 apartments that are now legally occupied.
The protections of the land use and site plan approvals against zoning changes expired at the end of 1996. In 2004, the Hamilton Township Planning Board granted an extension of the prior approvals so that D.D. can build the two additional phases of the complex comprising 220 new apartments in accordance with prior density regulations. In this appeal, D.D. challenges the final decision of the Pinelands Commission issued on October 8, 2010, invalidating that extension.
A primary issue before us concerns interpretation and application of N.J.S.A. 40:55D-52b, a provision of the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -99, that authorizes extensions in time of prior land use approvals. Intertwined with that issue is whether the Pinelands Commission had legal authority to review and disapprove the extension granted to D.D.
We hold that N.J.S.A. 40:55D-52b and the Hamilton Township ordinance that contains language identical to that statute do not permit the extension that the Planning Board granted to D.D. We also hold that the Pinelands Commission acted within its statutory authority in setting aside the land use approvals. We affirm the decision of the Pinelands Commission.
I.
A. The Pinelands National Reserve
The Pinelands National Reserve was established by Congress in 1978 in recognition of the unique and fragile ecology of the New Jersey Pinelands. See Gardner v. N.J. Pinelands Comm'n, 125 N.J. 193, 198-200 (1991) (detailing history and significance of "the New Jersey Pine Barrens, or Pinelands"). The New Jersey Legislature enacted the Pinelands Protection Act, N.J.S.A. 13:18A-1 to -29, by which it created the Pinelands Commission, N.J.S.A. 13:18A-4. The Commission was charged with developing a Comprehensive Management Plan (the Management Plan), which is mandated by The National Parks and Recreation Act of 1978, 16 U.S.C. § 471i. The objective of the Management Plan, N.J.A.C. 7:50-1.1 to -10.35, is "to promote orderly development of the Pinelands so as to preserve and protect the significant and unique natural, ecological, agricultural, archaeological, historical, scenic, cultural and recreational resources," N.J.A.C. 7:50-1.3. The Commission was also charged with regulating all development activity within the Pinelands National Reserve. N.J.S.A. 13:18A-4 to -9, -27, -29; N.J.A.C. 7:50-8.1.
In Gardner, supra, 125 N.J. at 201-02, the Court explained the role of the Commission in land use decisions:
Initially, the Commission assumed all power to exercise traditional zoning functions within the Pinelands, promulgating minimum land-use standards under the [Management Plan]. Thereafter, . . . municipalities were required to conform their master plans and zoning ordinances to the [Management Plan] and to have such plans and ordinances approved by the Commission. If a . . . municipality fails to conform to the [Management Plan], the Commission will continue to exercise direct control over local land use.
[Citations omitted.]
As part of the Management Plan, the Legislature created the Pinelands Development Credit (PD Credit) program. N.J.S.A. 13:18A-30 to -54. The purpose of the program is to provide property owners in the most ecologically sensitive areas of the Pinelands with financial recompense for loss of beneficial uses of their property by transferring development rights to other property owners. N.J.A.C. 7:50-5.41. Parts of the Pinelands that were designated as Regional Growth Areas under the Management Plan could be used for more intense development with the use of PD Credits. N.J.A.C. 7:50-5.43, -5.45; see N.J.S.A. 13:18A-31. The appropriate number of PD Credits would enable a developer building in a Regional Growth Area to increase by approximately fifty percent the density allowable under a municipality's zoning ordinance. N.J.A.C. 7:50-5.28, -5.43, -5.45. For example, if a municipal zoning ordinance in a Regional Growth Area permits one home per acre, a developer can purchase and redeem a sufficient number of PD Credits to increase the density of its development to one-and-a-half homes per acre.
The Commission considers parts of Hamilton Township to be prime targets for PD Credit use. That is, the Commission seeks to steer controlled development to areas of Hamilton Township that are suited for development and thus to avoid development in more environmentally sensitive areas of the Pinelands. See N.J.S.A. 13:18A-31.
In 1985, the Commission certified Hamilton Township's master plan and land use ordinance as conforming to the Management Plan. Under the township's zoning ordinance, a developer could obtain approval for a Planned Unit Residential Development (PURD) at a gross density of 4.75 dwelling units per acre or 7.2 dwelling units per acre with PD Credits. B. The Hamilton Greene Development
The Hamilton Greene apartment complex is located within a zoning district designated as a Regional Growth Area - Intensive under the Management Plan and the zoning ordinance of Hamilton Township. In 1986 and 1987, D.D.'s predecessor in title obtained from the township's Planning Board subdivision and final site plan approvals for all five phases of the Hamilton Greene complex. The approved plans called for a PURD under the municipal zoning ordinance in effect at that time. In 1988 and 1990, the Commission approved the Planning Board's granting of the subdivision and site plan approvals for all five phases of the development project. Over the next several years, D.D.'s predecessor constructed Phases I through III comprising 416 rental apartments. Phases IV and V remained unbuilt but approved for an additional 260 units.
In April 1992, the Planning Board granted D.D.'s predecessor a one-year extension of its PURD site plan approvals for Phases IV and V. In August 1992, the Legislature enacted the Permit Extension Act, N.J.S.A. 40:55D-130 to -136.6, by which the duration of site plan approvals was automatically extended to December 31, 1994. In December 1994, the Legislature amended the Permit Extension Act and extended site plan approvals to December 31, 1996. Consequently, the site plan approvals for Phases IV and V of the Hamilton Greene development, at the higher gross densities, remained in effect by operation of the law until December 31, 1996.
In 1995, D.D. acquired title to the Hamilton Greene apartment complex and the development rights of the prior owner for approximately $19 million. D.D. did not take any immediate action to proceed with construction of the final two phases of the development project or to seek additional extensions. C. Amendment of Hamilton Township's Land Use Ordinances
As the years passed after the Commission's 1985 certification of Hamilton Township's master plan and zoning ordinance, it became apparent that relatively few PD Credits were being purchased and redeemed for development in the township. In the early 2000s, Hamilton Township reported that only eight percent of new dwelling units built in the township had required use of PD Credits. New construction in the township was not providing a market for PD Credits and thus the protection of other sensitive areas of the Pinelands as intended by the Management Plan.
The Commission and township officials determined that developers were not utilizing PD Credits because of the extra cost and also because the township's Planning Board was granting many extensions of PURD approvals and allowing developers to amend previously approved PURD site plans. In other words, developers were finding satisfactory ways to develop land without having to purchase and redeem PD Credits.
Hamilton Township began considering amendments of its master plan and land use ordinance to reduce development densities. Township officials entered into a dialogue with the Commission to determine how to reduce densities while not undermining the use of PD Credits to protect other sensitive areas of the Pinelands. The township proposed eliminating PURDs as a permitted use to reduce allowable densities. The Commission responded that eliminating PURDs would require the township also to cease approving substantial revisions to existing PURD site plans so that the newly proposed density restrictions would apply to lapsed PURD approvals.
In 2001 and 2002, the township adopted a series of amendments to its zoning ordinance by which it eliminated PURDs as a permitted use and reduced the allowable density for residential uses, including planned developments. Among the issues considered at the time of the township's zoning amendments was whether the rights of developers that had received prior approvals should be "grandfathered" under a "sunset provision" of an amended ordinance. After a hearing regarding the proposed new ordinance, the Commission issued findings of fact stating that vested PURD approvals would not be affected by the new ordinance but lapsed PURD approvals where no construction activity had occurred would be subject to the township's new zoning ordinance. The township considered the Commission's findings with respect to vesting and lapse of approvals and decided not to include a "sunset provision" in the amended ordinance.
The Commission and the township also reached a "mutual understanding" that "substantial change of an approved site plan constitutes simultaneous abandonment of an earlier plan, and thus now requires consideration under the new ordinance provisions." This understanding was an effort to comply with the requirement of the Management Plan that a reduction in allowable densities not interfere with the use of PD Credits. N.J.A.C. 7:50-5.28a(7).
The township's new zoning ordinance eliminated PURD as a permitted use and reduced the gross density for planned developments to 1.6 dwelling units per acre or 2.5 dwelling units per acre with PD Credits. The Commission certified the amended ordinance as conforming to the Management Plan. D. The Dispute
In April 2002, D.D. submitted an application to the Planning Board pursuant to township ordinance § 203-107 for an extension of its prior PURD approvals that had expired at the end of 1996. The township ordinance, like N.J.S.A. 40:55D-52b,authorizes the Planning Board to protect a developer from changes in land use regulations for a reasonable period of time. D.D. sought to apply the zoning regulations that were in effect at the time of the initial 1980s approvals to construction of Phases IV and V in the 2000s.
The ordinance, Hamilton Twp., N.J., Ordinance § 203-107 (Aug. 17, 1992), is essentially identical in wording to N.J.S.A. 40:55D-52.
In August 2002, the Planning Board held a hearing and considered proofs in accordance with N.J.S.A. 40:55D-52b and ordinance § 203-107. Petitioner conceded there had been no construction activity on the property in the prior ten years. During the hearing, the Planning Board's attorney suggested an extension might be granted if D.D. agreed to amend its site plan to reduce the density of the development. D.D. did not agree to do so. The Planning Board voted to deny D.D.'s application for an extension of the prior approvals.
Through communications of the attorneys, D.D. advised the Planning Board that it intended to litigate denial of its application for an extension. In the face of possible litigation, the Planning Board decided not to memorialize its vote denying the extension (in violation of N.J.S.A. 40:55D-10g and N.J.A.C. 7:50-4.35e) and instead to attempt to settle the dispute with D.D.
By means of negotiations conducted in non-public executive sessions, the Planning Board and D.D. eventually reached agreement on the terms of extending the prior approvals. A representative of the Commission attended some of the negotiations and allegedly did not voice opposition to the proposed settlement. D.D. agreed to reduce the number of new apartments it would build from 260 to 220, to reduce the size of the buildings, to eliminate all three-bedroom apartments, to reduce impervious surfaces, and to alter the storm water system, street widths, sidewalks, and curbs to bring them into compliance with requirements under the Residential Site Improvement Standards Act (RSIS), N.J.S.A. 40:55D-40.1 to -40.7, enacted in the 1990s after the prior approvals.
In April 2004, the Planning Board voted to reopen the August 2002 public hearing, and then it voted to grant a thirty-six month extension of prior PURD zoning approvals, the extension to run from the date its decision would be memorialized by resolution. The Planning Board approved an amended site plan for the final two phases of the project on several conditions, including acquisition and redemption of sufficient PD Credits. The Board's conditional approval was memorialized and adopted by resolution dated May 6, 2004. The three-year extension, therefore, would run to May 6, 2007. E. Intervention by the Commission
From June 2004 to February 2007, the Commission communicated with D.D. demanding documentation so that it could review the Planning Board's action of May 6, 2004. See N.J.A.C. 7:50-4.40. In March 2007, D.D. submitted the required documents. On March 23, 2007, the Commission issued a "call-up" letter advising D.D. that a compliance hearing would be held to determine whether the Planning Board's decision conformed with the minimum requirements of the Management Plan. The letter raised four issues, only one of which remains in dispute on this appeal:
Whether the proposed development is consistent with the residential density
requirements for the [Growth Area - Intensive] zoning district as set forth in Hamilton Township's certified land use ordinances and with the overall density requirements in a Regional Growth Area as set forth in N.J.A.C. 7:50-5.28(a) . . . .
. . . .
Based upon the permitted density in the [Growth Area - Intensive] zoning district, the proposed development of 220 dwelling units on this parcel requires the purchase of 45.75 Pinelands Development Credits. The applicant has not provided documentation that the requisite . . . Credits have been purchased and redeemed.
In January 2008, D.D. requested that the proceedings be transferred to the Office of Administrative Law for a hearing. Before an Administrative Law Judge (ALJ), the parties established much of the record by means of stipulated facts. On March 16 and April 6, 2010, the ALJ heard additional evidence in the form of testimony from D.D.'s attorney, from an employee of the company that manages Hamilton Greene, and from the Executive Director of the Commission.
In his July 16, 2010 decision, the ALJ framed the issue as whether the Planning Board had authority under N.J.S.A. 40:55D-52b to extend the PURD approvals at the previous higher density after D.D. had substantially modified the site plan for the final two phases of the project. The ALJ concluded that the Planning Board had exceeded its authority by granting an extension of prior approvals under ordinance § 203-107B and N.J.S.A. 40:55D-52b, that D.D. had abandoned its zoning protections under the original 1987 site plan by submitting a substantially modified site plan in 2004, and that the need for PD Credits must be calculated under the township's land use ordinance in effect in 2004. The ALJ described as "problematic" the question of "[w]hether interpretation of [MLUL] falls within the purview of the Pinelands Commission," but he also concluded that the "Commission has authority to determine the number of [PD Credits that D.D.] must purchase in order to develop its project." The ALJ entered an order on July 16, 2010, directing D.D. to purchase a total of 45.75 PD Credits to develop Phases IV and V of Hamilton Greene.
By spring 2007, D.D. had purchased 20.5 PD Credits through the Pinelands Development Bank. An additional 25.25 PD Credits were therefore required to comply with the ALJ's decision. At a cost of $60,000 per credit, the additional expense to D.D. would be approximately $1.5 million.
After the parties filed exceptions to the ALJ's decision, the Commission issued a forty-seven page final decision on October 8, 2010, modifying the ALJ's initial decision. The Commission invalidated the Planning Board's granting of an extension and approval for construction of Phases IV and V but declined to designate without further information the number of PD Credits that D.D. would need to construct 220 new residential units. The Commission concluded that the township Planning Board's action violated the Management Plan and the township's certified land use ordinance in four ways: (1) the Planning Board violated N.J.A.C. 7:50-5.47 by approving D.D.'s application for development before D.D. had actually acquired and redeemed the requisite PD Credits; (2) it violated township ordinance § 203-107 by failing to backdate the three-year extension of zoning protections to the prior expiration date, December 31, 1996; (3) the certified land use ordinance of the township does not permit the Planning Board to extend PURD zoning protection for a final site plan that has been substantially modified; and (4) the Planning Board's decision interfered with the Management Plan's objective of encouraging the use of PD Credits.
Challenging the Commission's decision and reasoning, D.D. filed this appeal.
II.
Having reviewed the record and considered the several arguments of the parties, we are essentially in agreement with much of the written decision of the Commission dated October 8, 2010.
We first acknowledge our limited standard of review of an administrative agency's final decision. In re Taylor, 158 N.J. 644, 656-57 (1999); Public Serv. Elec. & Gas Co. v. N.J. Dep't of Envtl. Prot., 101 N.J. 95, 103 (1985). We will reverse a decision of an administrative agency only if it is contrary to law or arbitrary, capricious, or unreasonable. See Brady v. Bd. of Rev., 152 N.J. 197, 210-11 (1997). A strong presumption of reasonableness is given to the agency's decision. Smith v. Ricci, 89 N.J. 514, 525, appeal dism. sub nom. Smith v. Brandt, 459 U.S. 962, 103 S. Ct. 286, 74 L. Ed. 2d 272 (1982).
"Appellate courts must defer to an agency's expertise and superior knowledge of a particular field. Thus, if substantial credible evidence supports an agency's conclusion, a court may not substitute its own judgment for the agency's even though the court might have reached a different result." Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992) (citations omitted). We "intervene only in those rare circumstances in which an agency action is clearly inconsistent with its statutory mission or with other State policy." George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994).
Furthermore, "[a]n administrative agency's interpretation of statutes and regulations within its implementing and enforcing responsibility is ordinarily entitled to our deference." In re Appeal by Progressive Cas. Ins. Co., 307 N.J. Super. 93, 102 (App. Div. 1997). Nonetheless, we are not bound by the agency's opinions on purely legal questions. Levine v. State, Dep't of Transp., 338 N.J. Super. 28, 32 (App. Div. 2001); see Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). More specifically, we are not bound by an agency's interpretation of a statute, Mayflower Secs. Co., Inc. v. Bureau of Secs., 64 N.J. 85, 93 (1973), or a local ordinance, Wyzykowski v. Rizas, 132 N.J. 509, 518 (1993), "when that interpretation is inaccurate or contrary to legislative objectives." G.S. v. Dep't of Human Servs., 157 N.J. 161, 170 (1999).
Applying these standards of review, we begin by confirming that the Commission was authorized to review the Planning Board's action of May 6, 2004, as a "final municipal . . . approval . . . of [an] application for development in the pinelands area. . . ." N.J.S.A. 13:18A-15. Under the Management Plan, "[a]pplication for development" means "any application, filed with any permitting agency, for any approval, authorization or permit which is a prerequisite to initiating development in the Pinelands . . . ." N.J.A.C. 7:50-2.11. D.D.'s application for an extension of prior approvals was such an application that was a prerequisite to initiating development in the Pinelands. The Commission had authority to review it and determine whether it complied with the Management Plan.
We find merit in at least three of the four grounds upon which the Commission reached its decision invalidating the Planning Board's action of May 6, 2004. As the second listed ground, the Commission concluded that the three-year extension of prior land use and site plan approvals did not comply with township ordinance § 203-107 because it was not backdated to the expiration date of the prior approvals, December 31, 1996. The township ordinance, like N.J.S.A. 40:55D-52, permits extensions of approvals even when a request for an extension is submitted after the expiration of the prior approval. But the statute and ordinance require explicitly that extensions "shall begin on what would otherwise be the expiration date." N.J.S.A. 40:55D-52c; Hamilton Twp., N.J., Ordinance § 203-107 (Aug. 17, 1992). Here, the approved three-year extension was designated to run from May 6, 2004, more than seven years and four months after the expiration of the prior approvals.
The reference to expiration date does not mean that the MLUL sets a specified period during which zoning and site plan approvals are in effect. It means that the statutory protections for the developer against changes in zoning and regulatory laws expire after the designated time. See Cox & Koenig, N.J. Zoning and Land Use Administration, §§ 15-5.2, -5.3 at 376-85 (2012).
D.D. argues that the departure from the statutory and ordinance requirements is only "form over substance" because the Planning Board was authorized by the statute and the ordinance to grant an extension of any length in time. We disagree that the express legislative requirement that the extension begin at the prior expiration date of the approvals has no substantive effect. In fact, we read the requirement as a measure designed to prevent what occurred in this case, namely, the re-granting of long-expired approvals by means of a statute and ordinance not intended to be used in that manner.
Subsection a of N.J.S.A. 40:55D-52 and the township ordinance provide routinely for a two-year period of protection against zoning and site plan changes, and they also allow up to three one-year extensions of protection under the prior approvals. Thus, zoning and site plan approvals may in all cases remain effective for a total of five years with the approval of the local board.
Subsection b of the statute and the ordinance provide more flexibility for larger development projects. For a planned residential development of more than fifty acres, such as Hamilton Greene, subsection b permits an extension "longer than two years, as shall be determined by the planning board to be reasonable taking into consideration" several enumerated factors described in the statute and ordinance, including "economic conditions." N.J.S.A. 40:55D-52b; Hamilton Twp., N.J., Ordinance § 203-107(B) (Aug. 17, 1992). Although subsection b does not set a time limit for extensions, the time period must nevertheless be "reasonable." Furthermore, any extension of more than five years requires that public notice of the application for an extension be provided in accordance with N.J.S.A. 40:55D-12a.
D.D.'s argument that the Planning Board could have designated December 31, 1996 as the beginning of the extension requires us to conclude that an extension of more than ten years and four months would be reasonable for parts of a project that sat idle for some fifteen years. Whether or not such an extension would be reasonable, the Planning Board did not grant an extension of more than ten years, and it did not justify an extension of that length by its resolution of May 6, 2004. The Planning Board granted a three-year period of protection for zoning and site plan approvals based on a substantially amended site plan. The May 6, 2004 resolution is, in fact, the granting of approval for a new site plan rather than a decision of the Planning Board pertaining to extension of prior approvals in accordance with the requirements of N.J.S.A. 40:55D-52b and ordinance § 203-107(B).
The statute and the ordinance were not intended to grant unbounded authority to a local board to grant approvals under prior laws and regulatory provisions, or to extend prior approvals indefinitely to avoid changes in zoning or building regulations. Such a reading of the statute and ordinance would tie the hands of future planning boards and other local officials, possibly in the face of substantial changing circumstances in the locality and new requirements of sound planning and construction.
The subsections of the statute and ordinance must be read together — the five-year maximum for extensions under subsection a, the indeterminate but "reasonable" period of extension permitted under subsection b, and the requirement under subsection c of the statute that the extension begin on the date of prior expiration. These subsections work together to prevent precisely what D.D. and the Planning Board attempted to do in this case — substitute an extension of zoning and site plan approvals under N.J.S.A. 40:55D-52 and the ordinance for new approvals that were necessary because the prior approvals had expired many years earlier. Here, the Planning Board never determined that an effective ten-year-plus extension of the prior zoning and site plan approvals (from December 31, 1996 through May 6, 2007) was a reasonable extension under N.J.S.A. 40:55D-52b or ordinance § 203-107(B).
The Commission did not explicitly analyze the issue as we have done, but its finding that the Planning Board's action violated the township's own ordinance by failing to run the three-year extension from the expiration of the prior approvals effectively concludes, as we do, that the lengthy extension was not authorized by the statute or the ordinance. Cf. Isko v. Planning Bd. of Livingston, 51 N.J. 162, 175 (1968) (appellate court may affirm based on grounds other than those relied upon by a lower tribunal); Grow Co. v. Chokshi, 403 N.J. Super. 443, 467 n.8 (App. Div. 2008) (same); Khalil v. Motwani, 376 N.J. Super. 496, 499 (App. Div. 2005) (same).
We need not specifically address D.D.'s argument, or the ALJ's concern, that the Commission lacked legal authority to set aside the Planning Board's decision on the ground that it did not comply with the MLUL. Because the Hamilton Township ordinance was identical in content to the relevant provisions of the MLUL, and the ordinance is indisputably subject to the authority of the Commission and was certified by the Commission as being in conformity with the Management Plan, N.J.A.C. 7:50-3.38, -4.40, the Commission clearly had authority to review the Planning Board's compliance with the township's own ordinance.
We also agree with the Commission's third and fourth stated reasons for rejecting the development approval: that the site plan that was approved in May 2004 differed significantly from the site plan that had been approved in the 1980s and that the 2004 approval interfered with the Management Plan's objective of encouraging the use of PD Credits. D.D. argues that the 2004 changes were the result of demands made by the Planning Board and in fact were intended to bring the PURD development more into compliance with current standards as part of the terms of the settlement it reached with the Planning Board.
This argument ignores the significant effect of the Planning Board's action on a primary objective of the Pinelands Protection Act and the Management Plan. By reaching agreement through settlement negotiations to implement the prior gross density regulations, the Planning Board's action subverted the Commission's goal of preserving the Pinelands against development in other more sensitive areas. It interfered with the Commission's efforts to compel developers in the Regional Growth Areas to purchase and redeem PD Credits that would benefit the areas of the Pinelands to be protected against development. See N.J.A.C. 7:50-5.28a(7)(i).
D.D.'s amended site plan satisfied the objective of the township to reduce density and to bring Phases IV and V into compliance with current regulations, but it also avoided D.D.'s obligation to obtain more PD Credits. Under the prior density regulations, D.D. would not need the number of PD Credits it needs under the current zoning ordinance to build 220 new apartments. The changes in the site plan, therefore, were contrary to the objectives of the Management Plan to create a market for PD Credits and thus to help preserve other areas of the Pinelands. See N.J.S.A. 13:18A-31.
We briefly address the remaining reason stated in the Commission's decision, that D.D. did not obtain and redeem PD Credits before the Planning Board granted approval on May 6, 2004, as required by N.J.A.C. 7:50-5.47c. It may be that the conditional approval of the extension granted by the Planning Board complied with the cited regulation so long as D.D. obtained the required PD Credits before any building permits were issued. We decline to address whether conditional zoning and site plan approvals satisfy the regulation pending review and ultimate approval of the development plan by the Commission. The parties have not addressed in the context of these facts application of N.J.S.A. 13:18A-30 to -54 and N.J.A.C. 3:42-3.1 to -3.6, pertaining to operation of the Pinelands Development Credit Bank, and we see no reason to resolve the issue in this opinion.
N.J.A.C. 7:50-5.47c states in part:
No development involving the use of Pinelands Development Credits shall be approved by a local permitting agency until the developer has provided the Commission and the municipality in which the parcel of land to be developed is located with evidence of his ownership and redemption of the requisite Pinelands Development Credits; provided, however, that a municipality may grant general development plan, preliminary subdivision or preliminary site plan approval conditioned upon such evidence being presented as a prerequisite to final subdivision or site plan approval. For such a final subdivision or site plan, the developer shall provide evidence of Pinelands Development Credit ownership and redemption to secure the same proportion of lots or residential units as was approved for Pinelands Development Credit use in the preliminary approval or, as appropriate, the general development plan. . . . Redemption of the requisite Pinelands Development Credits shall occur in accordance with N.J.A.C. 3:42-3.6 prior to the memorialization of the resolution granting final subdivision or final site plan approval, or if no such approval is required, prior to the issuance of any construction permits.
In sum, we hold that the Pinelands Commission acted within its authority in setting aside the development approval granted by the Hamilton Township Planning Board on May 6, 2004. We conclude, as did the Commission, that the Planning Board misapplied N.J.S.A. 40:55D-52 and township ordinance § 203-107 when it granted an extension of protections under zoning and site plan approvals that had expired more than seven years earlier.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION