Court Confirms Pinelands Commission's Ordinance Review Procedure as Indispensible
By: Henry T. Chou, Esq.
The Appellate Division has determined that the provision of the Pinelands Protection Act requiring Pinelands Commission approval of municipal ordinances is a substantive review procedure that renders an unapproved ordinance invalid as a matter of law.
Under the Pinelands Protection Act, all municipalities located within the Pinelands Area must conform their ordinances and master plans to the standards of the Pinelands Commission's Comprehensive Regional Management Plan. The conformation process requires municipalities to submit all proposed ordinances to the Pinelands Commission for review and certification prior to adoption.
The issue in RG-2 Associates v. Jackson Township Planning Board involved a developer's application for General Development Approval of a 193-unit residential project in Jackson Township, a municipality located in the Pinelands Area. The application was made under a Jackson Township ordinance that, by inadvertence, had not been submitted to the Pinelands Commission for review and certification.
After the Planning Board held several hearings on the application and voted to approve it, the Pinelands Commission sent a letter to the Planning Board advising that the ordinance would have to be reviewed and certified by the Pinelands Commission in order to have legal effect. The letter prompted the Planning Board to withhold its adoption of a resolution of approval until such time that the Pinelands Commission certified the ordinance.
Thereafter, the Pinelands Commission did review and certify the ordinance, leading the Planning Board to place the matter of adopting a resolution of approval on the agenda of its next meeting. Before that meeting, however, the Naval Air Engineering Station in Lakehurst advised that it expected a significant increase in military aircraft traffic in the area and recommended that the Planning Board condition its approval of the development with a requirement that the developer notice potential homebuyers of the aircraft issue.
The developer objected to the newly proposed condition, arguing that the Planning Board could not reopen the proceedings after it had already voted to approve the development. Instead of entertaining the developer's objection, the Planning Board voted to deny adoption of the resolution of approval on the basis that it had no jurisdiction to conduct its earlier hearings because the Pinelands Commission had not approved the ordinance on which application was based. Thus, the Planning Board vacated its prior approval and reopened the application, including requiring new public notice of the application.
Subsequently, the developer filed a prerogative writ action, challenging the Planning Board's decision as arbitrary, capricious and unreasonable. One of the developer's primary arguments was that the Planning Board could not change its mind on the basis of a technicality involving the Pinelands Commission's review procedures.
The Law Division and Appellate Division both upheld the Planning Board's actions, holding that "the statutory requirement of Commission certification is clearly substantive and not procedural in nature." The Appellate Division explained that "[c]ertification involves neither a perfunctory review nor a mechanical filing....[r]ather, the Commission is statutorily enabled to certify the ordinance, certify it with conditions or reject the ordiannce." Thus, an ordinance subject to Commission review is not effective until certified and the fact that the Commission ultimately certified an ordinance that was the subject of a prior approval does not legitimize that approval.