ELR Citation: ELR 20155
No(s). A-15 (N.J. Jul 23, 1991)

The court holds that zoning regulations of a state commission that limit the use of land in an environmentally sensitive area protected under federal law do not constitute an unconstitutional taking of private property. Congress established the Pinelands National Reserve in New Jersey under the National Parks and Recreation Act, which mandated that New Jersey create a planning commission to take primary responsibility for developing a comprehensive management plan (CMP) to serve as the land use blueprint for the region. The commission's original CMP called for several programs to accomplish the objective of agricultural preservation, primarily by restricting residential development in agricultural production zones and preserving them for farm and farm-related purposes. After an affected landowner sought to subdivide his property into 14 to 17 10-acre farmettes in accordance with the CMP option allowing one farm-related residential unit per 10 acres of land, the commission revised the CMP to allow the construction of homes at a density of one unit per 40 acres, but only if the residences are clustered on one-acre lots and the remaining 39 acres are permanently dedicated to agricultural use by a recorded deed restriction. The court first holds that New Jersey's Pinelands Protection Act and the regulations promulgated pursuant to the Act substantially advance legitimate and important governmental objectives. The New Jersey Legislature declared the Act's objective to be the protection of the Pinelands, and the CMP reiterated that purpose, especially recognizing the importance of agriculture because of its capacity to contribute to the special character of the Pinelands and to the environment. The Act and the land use regulations directly advance agricultural preservation, particularly through the limitation of residential development of large-tract requirements and complementary deed restrictions on undeveloped, nonresidential land. The court next holds that the farmland and related use restrictions applicable to plaintiff's land pursuant to the revised CMP does not deprive plaintiff of the economic or beneficial use of all or most of his property, sufficiently diminish the value or profitability of his land, or otherwise interfere with his ownership interest to constitute a taking of property without just compensation. First, the revised CMP does not change or prohibit an existing use of plaintiff's land, since plaintiff may continue the existing, admittedly beneficial use of the property. Plaintiff may gainfully use all of his property, including the right to build five homes clustered together on the restricted land. Thus, there is no showing that the economic impact of the regulations interferes with distinct investment-backed expectations. That the uses to which plaintiff may put his land do not equal the former maximum value of the land in a less- or unregulated state is not dispositive, because there exists no constitutional right to the most profitable use of property. The court next holds that the regulations do not constitute an illegal exaction requiring all Pinelands farmers to pay the costs of zoning benefits for the public at large, since regulations that lawfully impose land use constraints on an ecologically sensitive area can validly disallow the development itself. If a developer cannot claim that a regulation effects an unlawful taking, it cannot claim that it constitutes an unlawful exaction. Both the zoning authority and the CMP derive from and fall within the police power. Finally, the court holds that the revised CMP does not deny plaintiff equal protection of the law under New Jersey's constitution because he is subject to more severe restrictions and receives less benefits than farmers participating in a easement program under New Jersey's Right to Farm Act. Plaintiff does not claim to belong to a suspect or semi-suspect class, nor is the right at issue here fundamental, since it involves only plaintiff's ability to use his property in the most profitable or economically valuable manner, not the right to derive some beneficial use of the property.

Counsel for Plaintiff-Appellant
Patrick F. McAndrew
Brandt, Haughey, Penberthy, Lewis & Hyland
240 W. State Highway 38, P.O. Box 331, Moorestown NJ 08057
(609) 235-1111

Counsel for Defendants-Respondents
Robert J. Del Tufo, Attorney General; Mary C. Jacobson, Deputy Attorney General
R.J.H. Justice Complex, CN 080, Trenton NJ 08625
(609) 292-4925

For affirmance — Chief Justice WILENTZ, and Justices CLIFFORD, HANDLER, POLLOCK, GARIBALDI, and STEIN — 6.

Opposed — None.