Lead Opinion
The opinion of the Court was delivered by
The central issue in this case is whether the application of state regulations that limit the use of land in an environmentally-sensitive area constitutes an unconstitutional taking of private property. The regulations strictly limit residential development on such land and require that all remaining undeveloped acreage be subject to a recorded deed restriction limiting it to agriculture and related uses. A farmer contends that the application of this regulatory scheme to his farm effects a partial taking of his property without compensation.
Hobart Gardner lived and worked for almost seventy years on a 217-acre farm that had been owned by his family since 1902. The farm is located in Shamong Township, Burlington County, a part of the pinelands region subject to the regulations. Gardner, now deceased, and his son, who lives on the farm today, cultivated sod and grain. The farm includes a two-family house, barns, and out-buildings.
When confronted with the regulations, Gardner sought compensation, claiming that the land-use restrictions resulted in an unlawful taking of his property. After the State refused payment, Gardner, on February 7, 1988, initiated this action for inverse condemnation against the Commissioner of the Department of Environmental Protection and the New Jersey Pine-lands Commission (Commission), which had promulgated the regulations. Gardner also contended that the regulations constituted an unlawful exaction and a denial of equal protection. He did not assert that the Pinelands Protection Act and the
The trial court granted summary judgment for defendants on the claim for inverse condemnation, finding that the overall zoning plan to protect agriculture was a permissible exercise of the State’s regulatory power, and, further, that neither the zoning regulation nor the deed restriction was an impermissible taking or exaction. 227 N.J. Super. 396, 402-06, 408, 547 A.2d 725; (Ch.Div.1988). The court permitted Gardner to advance an equal protection claim by the filing of an amended complaint, id. at 409, 547 A.2d 725, and subsequently granted summary judgment for defendants on that claim as well. The Appellate Division affirmed the judgments substantially on the basis of the lower court’s reasoning. 235 N.J.Super. 382,
I
The value of the unique ecological, economic, and cultural features of the New Jersey Pine Barrens, or Pinelands, has been recognized for decades. E.g., L. 1971, c. 417 (creating Pinelands Environmental Council; repealed by L. 1979, c. 111). Protection of the area, however, did not begin in earnest until Congress enacted the National Parks and Recreation Act of 1978, Pub.L. No. 95-625, 92 Stat. 3492 (codified at 16 U.S.C.A. § 47 li), establishing over one-million acres as the Pinelands National Reserve. The Pinelands were the first natural resource to be protected by the innovative “national reserve” program. Designed to conserve areas of ecological sensitivity, natural beauty, and cultural importance, the national reserve
Congress chose the Pinelands as the first protected site with good reason. New Jersey is the most densely populated state in the nation and lies at the midpoint of the emerging megalopolis that extends from Boston to Richmond. Statistical Abstracts of the United States, 1990 at 21; J. McPhee, The Pine Barrens 4-5 (1981). The central corridor of the state between New York and Philadelphia has been described as “one great compression of industrial shapes, industrial sounds, industrial air, and thousands and thousands of houses webbing over the spaces between the factories.” J. McPhee, supra, at 4. Astride that corridor in central and southern New Jersey is the Pinelands.
The pristine nature of the Pinelands sharply contrasts with its contiguous, dense urban and industrial surroundings. A “wilderness” of pine-oak forests and wild and scenic rivers, the Pinelands harbors a “wide variety of rare, threatened and endangered plant and animal species,” and encompasses “many other significant and unique ecological, historical, recreational, and other resources.” Senate Committee Statement, supra; J. McPhee, supra, at 4-5. The region overlies the vast, seventeen-trillion gallon Cohansey aquifer, “one of the largest virtually untapped sources of pure water in the world.” Senate Committee Statement, supra; see J. McPhee, supra, at 13-16. There has been very little development within the Pinelands; there are no major retail centers, and developed property comprises only one to two percent of the land in most areas. New
In recent years, anxiety over the loss of farming and the fragile ecology of the Pinelands has produced increasingly stringent federal and state regulation. Both the federal and the implementing state legislation make clear that conservation, preservation, and protection are the principal ends of governmental regulation of land use in the Pinelands. The federal statute states its purpose is “to protect, preserve and enhance the significant values of the land and water resources of the Pinelands area.” 16 U.S.C.A. § 471i(b)(1). Similarly, the New Jersey Pinelands Protection Act (Act), L. 1979, c. 11; N.J.S.A. 13:18A-1 to 29, declares that its goals are, among others, to protect, preserve, continue, and expand agriculture and horticulture and to discourage piecemeal and scattered development within the Pinelands. N.J.S.A. 13:18A-9b. The Act stresses preservation of the region:
[T]he continued viability of [the Pinelands] area and resources is threatened by pressures for residential, commercial and industrial development * * * [T]he protection of such area and resources is in the interests of the people of this State and of the Nation * ’ *.
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The Legislature further finds and declares that the current pace of random and uncoordinated development and construction in the pinelands area poses an immediate threat to the resources thereof, especially to the survival of rare, threatened, and endangered plant and animal species and the habitat thereof, and to the maintenance of the existing high quality of surface and ground waters; that such development and construction increase the risk and extent of destruction of life and property which could be caused by the natural cycle of forest fires in this unique area * * *. [N.J.S.A. 13:18A-2.]
The Act authorizes the designation of “protection areas” for promotion of agriculture, horticulture, and “appropriate patterns of compatible residential, commercial and industrial development in or adjacent to areas already utilized for such pur
In keeping with the paramount objective of both federal and state governments, i.e., protecting the Pinelands from overdevelopment and consequent ecological degradation, the plan for the Pinelands National Reserve calls for the full participation of federal, state, county, and municipal authorities. 16 U.S.C.A. § 471i(b), (d), (f)(4), (g), (h). To ensure that pressures for development do not overwhelm the need for preservation, actions of the lower levels of government that do not conform to that objective can be pre-empted by a higher authority.
The federal statute directs the Governor of New Jersey to create a planning commission. 16 U.S.C.A. § 471i(d). The New Jersey Pinelands Commission (the “Commission”) is the instrumentality envisaged by federal and state law as having primary responsibility for planning in the Pinelands. N.J.S.A. 13:18A-4. Its charge is to develop a “comprehensive management plan” (CMP) to serve as the land-use blueprint for the region, subject to the approval of the federal Secretary of the Interior. 16 U.S.C.A. § 471i(d), (f), and (g); N.J.S.A. 13:18A-4, -5, -8, -9. To assist the State’s efforts, the federal government provides funds for planning and land acquisition, which are subject to repayment if the State does not properly implement a preservation program. 16 U.S.C.A. § 471i(g)(5), (g)(6), (k).
A similar system of incentives to cooperate, reinforced by the power to pre-empt, characterizes the relations between the State and local governments under the Act. Initially, the Commission assumed all power to exercise traditional zoning functions within the Pinelands, promulgating minimum land-use standards under the CMP. N.J.S.A. 13:18A-8, -10. Thereafter, counties and municipalities were required to conform
In developing the CMP, the Commission has been directed to “[rjecognize existing economic activities within the area and provide for protection and enhancement of such activities as farming, forestry, proprietary recreational facilities, and those indigenous industries and commercial and residential developments which are consistent with such purposes and provisions.” N.J.S.A. 13:18A-8(d)(3). To those ends, the Commission has been given broad authority to invoke
a variety of land and water protection and management techniques, including but not limited to, zoning and regulation derived from State and local police powers, development and use standards, permit systems, acquisition of conservation easements and other interest [sic] in land, * * * transfer of development rights, dedication of private lands for recreation or conservation purposes and any other appropriate method of land and water protection and management which will help meet the goals and carry out the policies of the management plan. [N.J.S.A. 13:18A-8(d)(l).]
Reflecting the aims of the federal and state statutes, the goals of the CMP include the “continuation and expansion of agricultural and horticultural uses.” N.J.S.A. 13:18A-9(b)(3). The original CMP, adopted by the Commission in November 1980, stressed that agriculture contributes both to the unique characteristics of the Pinelands and to the environment “by creating open space, terrestrial and aquatic habitats, and wildlife feeding areas.” Comprehensive Management Plan, supra, at 242. It also stated that suburban development contributes to “an unfavorable economic environment for farmers through escalating taxes, enactment of inhibiting local ordinances, and increased trespassing and vandalism.” Ibid. Consequently, the original CMP called for several programs to accomplish the objective of agricultural preservation. It identified eight “Pinelands Management Areas” of varying ecological sensitivity, including a Preservation Area District, Forest Ar
The original CMP restricted residential development in Agricultural Production Areas, reserving them primarily for farm and farm-related purposes. Section 5-304 of the plan allowed residential units on lots with 3.2 acres as long as the applicant met certain stringent conditions. The original CMP also permitted ten-acre residential zoning, that is, one residential unit per ten acres, “provided that the dwelling unit is accessory to an active agricultural operation, and is intended for the use of the owners or employees of the agricultural operation.”
The Commission further created a development-rights transfer program, under which it would award Pinelands Development Credits (PDCs) to landowners for recording permanent deed restrictions on their property limiting the land to specific uses set forth in the CMP. See Comprehensive Management Plan, supra, at 210-12 and sections 5-401 to -407; N.J.A.C. 7:50-5.41 to -5.47 (current version). The PDC program seeks to channel development ?by permitting holders of PDCs to transfer them to owners who wish to increase densities in specially-designated Regional Growth Areas. N.J.S.A. 13:18A-31; N.J.A. C. 7:50-5.41, -5.45. PDCs may be sold privately at market prices; according to the Assistant Director for Development Review at the Commission, Burlington County has a PDC bank that routinely pays $10,000 per credit. A landowner in an Uplands Agricultural Production Area — the designation that apparently includes the Gardner farm — receives two PDCs per thirty-nine acres. N.J.A.C. 7:50-5.43(b)(2)(i).
In the fall of 1987, Gardner explored the possibility of subdividing his property into fourteen to seventeen ten-acre “farmettes” in accordance with the CMP option allowing one farm-related residential unit per ten acres of land. Before the application was submitted, the Commission completed a periodic revision and amendment of the CMP, as required by the Act. N.J.S.A. 13:18A-8. The Commission determined, according to
The revised CMP permits only three options for residential development of farmland in Agricultural Production Areas: (1) second-generation Pinelands residents or persons whose livelihood depends on traditional Pinelands economic activities may build homes on 3.2-acre lots, N.J.A.C. 7:50-5.24(a)(1), -5.32; (2) a home may be constructed on a ten-acre lot for an operator or employee of the farm, but that option may be exercised only once every five years, N.J.A.C. 7:50-5.24(a)(2); or (3) homes may be constructed at a density of one unit per forty acres, but only if the residences are clustered on one-acre lots and the remaining thirty-nine acres allocated to each residence are permanently dedicated to agricultural! use by a recorded deed restriction, N.J.A.C. 7:50-5.24(a)(3), -5.24(c). The restriction of residential development to forty-acre tracts prompted the filing of Gardner’s complaint.
II
Land use regulations span a wide spectrum, from conventional zoning, e.g., Village of Euclid v. Ambler Realty, 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926); Cobble Close Farm v. Board of Adjustment, 10 N.J. 442, 92 A.2d 4 (1952), to particularized restrictions on property with special characteristics, e.g., Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978) (Penn Central). The Pine-lands Protection Act virtually fills the entire spectrum. It imposes comprehensive and complex regulatory land-use controls over an extensive geographic region with distinctive natural, economic, cultural, and historic characteristics.
A
There is not the slightest quarrel that the Act substantially advances several interrelated legitimate and important public purposes. We need refer only to the Legislature’s declaration of the Act’s objective: to protect the Pinelands, an area providing “a unique habitat for a wide variety of rare, threatened and endangered plant and animal species” and containing “significant and unique * * * resources.” Protection of
The preservation of agriculture and farmland constitutes a valid governmental goal. N.J. Const, art. VIII, § 1, para. 1(b) (lands used for agriculture or horticulture entitled to favorable tax treatment); see Boundary Drive Assocs. v. Shrewsbury Township Bd. of Supervisors, 507 Pa. 481,
The Act further advances a valid public purpose by preventing or reducing harm to the public. That is exemplified most dramatically by its measures to safeguard the environment and protect the water supply by severely limiting development. The Legislature specifically determined that “pressures for residential, commercial and industrial development” and the “current pace of random and uncoordinated development” pose an “immediate threat” to a region of vital public importance. N.J.S.A. 13:18A-2.
The health, safety1 and morals or general welfare may be promoted by prohibiting certain uses of land. See Penn Central, supra, 438 U.S. at 125-27, 98 S.Ct. at 2659-61, 57 L.Ed.2d at 649-50; see also Keystone Bituminous Coal v. DeBenedictis, 480 U.S. 470, 107 S.Ct. 1232, 94 L.Ed.2d 472 (1987) (upholding restrictions against removal of coal to prevent mine subsidence); Goldblatt v. Town of Hempstead, 369 U.S. 590, 82 S.Ct. 987, 8 L.Ed.2d 130 (1962) (upholding ordinance prohibiting excavation within two feet of groundwater level); Miller v. Sehoene, 276 U.S. 272, 48 S.Ct. 246, 72 L.Ed. 568 (1928) (upholding destruction of disease-carrying cedar trees to protect apple orchards). The prevention of damage to the environment constitutes a particularly strong justification for prohibiting inimical uses. E.g., New Jersey Sports & Exposition Auth. v. McCrane, 61 N.J. 1, 63,
That land itself is a diminishing resource cannot be overemphasized. See Holmdel Builders v. Township of Holmdel, 121 N.J. 550, 565-66,
Plaintiff argues that the regulatory scheme does not fulfill its public purposes in a lawful manner, relying heavily on the Supreme Court’s 1987 decision in Nollan v. California Coastal Commission, 483 U.S. 825, 107 S.Ct. 3141,
The restriction in Nollan was in the nature of a classic easement or servitude. By authorizing physical access to the beach, it sought to advance a goal collateral to the underlying governmental purpose of preserving visual access to the beach. Here, the underlying regulation limiting residential development on forty-acre tracts restricted predominantly to agriculture directly furthers the central purposes of the Act. The required deed restriction is a constituent part of the regulatory scheme, imposing use limitations substantially identical to the underlying regulation; it does not constitute a burden that is unrelated to the essential purposes of the regulatory scheme. See also, e.g., Rector of St. Bartholomew’s Church v. City of New York,
We are satisfied that the Act and the regulations implementing it substantially advance legitimate and important governmental objectives.
B
The critical remaining question is whether the regulations impair to an impermissible degree valuable property rights and interests. Diminution of land value itself does not constitute a taking. E.g., Village of Euclid, supra, 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303. Similarly, impairment of the marketability of land alone does not effect a taking. Littman, supra, 115 N.J. at 163, 557 A.2d 314; see Kirby Forest Indus, v. United States, 467 U.S. 1, 15, 104 S.Ct. 2187, 2196,
Plaintiff acknowledges that preserving agriculture is a legitimate governmental objective that can be achieved through land-use regulation. He contends, nonetheless, that the land-use regulations, including the required deed restrictions of the revised CMP, interfere to an intolerable degree with his right
In Penn Central, New York City had enacted a landmarks preservation ordinance, requiring approval from the Landmarks Preservation Commission for exterior alterations. Id. at 109-12, 98 S.Ct. at 2651-54,
Plaintiffs claim fails under the Penn Central analysis. The CMP does not change or prohibit an existing use of the land when applied to plaintiffs farm. See id. at 129, 98 S.Ct. at
Plaintiff also cites Morris County Land Improvement Co. v. Parsippany-Troy Hills Township, 40 N.J. 539,
The regulations are not for a limited period of time; they may endure indefinitely, and, in view of the public stake in the ecological integrity of the Pinelands, there is no likelihood that this regulatory scheme will end in the foreseeable future. Further, any difference in the market value of the property based on the potential longevity of the deed restriction, in contrast to the duration of the regulations, is purely conjectural and unmeasurable. In any event, if the underlying regulations were changed or were to predecease the deed restrictions, that would seriously undermine the validity and enforceability of the deed restrictions. More importantly, the restrictive covenant differs from the Nollan easement because it does not impair plaintiffs right to exclude others from his land, arguably a more fundamental element of the bundle of property rights than even the freedom to use property as desired. Compare Nollan; supra, 483 U.S. 825, 107 S.Ct. 3141,
In sum, plaintiff retains several viable, economically-beneficial uses of his land under the revised CMP. That those uses do not equal the former maximum value of the land in a less- or un-regulated state is not dispositive, for there exists no constitutional right to the most profitable use of property. We
Ill
Plaintiff contends that the regulations constitute a form of illegal “exaction,” in effect requiring Pinelands farmers to pay the costs of zoning benefits for the public at large. He relies on a line of cases addressing the imposition of subdivision exactions, particularly Longridge Builders v. Planning Board, 52 N.J. 348,
Plaintiffs reliance on Longridge Builders is misplaced. On a conceptual level, applying the nexus requirement that governs responsibility for off-site improvements in connection with a single private development to a comprehensive environmental protection scheme that limits the use of land is difficult, if not impossible. Cf. Holmdel Builders Ass’n, supra, 121 N.J. at 572,
Furthermore, unlike exactions for off-site improvements that unfairly or disproportionately penalize a developer and benefit the general public, the uniform land-use restrictions in the CMP are part of a comprehensive scheme. The CMP creates eight areas within the vast Pinelands region, prescribing different landuses according to the environmental, ecological, economic, and cultural characteristics of the respective areas. The CMP distributes and allocates the economic burdens among all property owners in order to promote the public good. Cf. Agins, supra, 447 U.S. at 262, 100 S.Ct. at 2142,
We find Grand Land inapposite. The zoning authority is part of the police power; that power “enables a municipality to take such actions ‘as it may deem necessary and proper for the good government, order and protection of persons and property, and for the preservation of the public health, safety and welfare of the municipality and its inhabitants.’ ” Holmdel Builders Ass’n, supra, 121 N.J. at 568,
Plaintiff finally contends that the CMP deprives him of equal protection of the law under the New Jersey Constitution because he is subject to more severe restrictions and receives less benefits than farmers participating in the easement program under the Right to Farm Act, N.J.S.A. 4:1C-1 to -10, and the Agriculture Retention and Development Act, N.J.S.A. 4:1C-11 to -48. Those acts created the State Agricultural Development Committee (SADC), see N.J.S.A. 4:1C-4, and authorized it, in cooperation with county agriculture development boards, to buy development easements restricting land to agricultural uses, N.J.S.A. 4:1C-5, -8, -24. The program is completely voluntary on both sides; the State does not exercise its eminent domain power, nor must it buy the easement if a farmer wishes to sell. Although the SADC may purchase easements on farmland throughout the state, the value of the easement necessar-' ily is limited by the use the owner otherwise could make of the land and therefore depends in large part on applicable land-use restrictions. N.J.S.A. 4:1C-31c.
Although the phrase “equal protection” does not appear in the New Jersey Constitution, this Court has recognized that article I, paragraph 1 of the state constitution protects against “ ‘the unequal treatment of those who should be treated alike.’ ” Barone v. Department of Human Servs., 107 N.J. 355, 367,
The revised CMP does not deny plaintiff equal protection of the laws. Plaintiff does not contend that he belongs to a suspect or semi-suspect class. The right at issue here also is not a fundamental right because 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. See supra at 210-216,
IV
The judgment below is affirmed.
Concurrence Opinion
concurring.
I concur with the Court’s judgment that the regulations enacted pursuant to the Pinelands Protection Act, N.J.S.A. 13:18A-1 to -29, do not effect a taking of plaintiff’s property. As noted by the Court, ante at 197-198,
Although the constitutional requirement that an exercise of the police power may not be unreasonable, arbitrary, or capricious has remained the same, the criteria for making that determination are not static. Rather, they vary “with changing needs and conditions pertaining to the public health, safety, morals, or general welfare.” Schmidt v. Board of Adjustment, supra, 9 N.J. at 414-15,
The deed restriction required by the regulations as a condition of an owner’s right to develop property consistent with the Pinelands regulatory scheme is indeed unique. In effect, it operates as a mandate that farmland property be used for farmland in perpetuity, even if the underlying zoning has changed. The Court expresses its concern about the enforceability of the restriction in the event of a zoning change. Ante at 214-216, 593 A.2d at 262.
Although the Court concludes that the regulatory scheme requiring plaintiff to deed-restrict his land in order to develop five residential lots does not effect a taking, that holding is not conclusive on the issue whether the New Jersey Pinelands Commission’s regulations violate principles of substantive due process. Resolution of that issue would involve a determination, based on a plenary hearing, whether plaintiff is being treated unfairly or discriminatorily, considering various factors including the need for the restrictions, other available methods of attaining the State’s public purpose, and the treatment of similarly-situated parcels. Cf. Schmidt v. Board of Adjustment, supra, 9 N.J. at 416, 88 A.2d 607 (“Restraints upon property cannot be unreasonable or unduly discriminatory * * * [or] go[] beyond the public need.”).
Justice STEIN concurs in the result.
For affirmance — Chief Justice WILENTZ, and Justices CLIFFORD, HANDLER, POLLOCK, GARIBALDI and STEIN — 6.
Opposed — None.