The opinion of the court was delivered by
The primary issue presented on this appeal is whether a provision of the Watershed Protection Act (L. 1988, c. 163 as amended by L. 1990, c. 19) which places limitations on the conveyance of watershed property continues to be valid. We have concluded that the moratorium is still in effect and is a factor to be considered in valuing watershed land for tax purposes.
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The case arose out of the filing of four real property tax appeals by the City of Newark that contested the assessment of Newark’s watershed property in the Township of Hardyston. The subject parcels are located in the Pequannock Watershed and are part of the 35,000 acre Newark watershed property located in Passaic, Sussex and Morris counties. They are designated as Block 20, Lot 32;
At the heart of the appeals is Hardyston’s contention (advanced in a motion for partial summary judgment in the Tax Court) that the moratorium in the Act should not be considered in determining the true value of Newark’s watershed property. Seven other taxing districts joined the motion in support of Hardyston, and the Attorney General intervened on behalf of the Department of Environmental Protection (DEP) in defense of the continued vitality of the moratorium. Judge Pizzuto denied Hardyston’s motion, affirming the continued viability of the Act. Thereafter a trial was held before Judge Lasser who determined the true value and proper assessments of the four parcels, discounting the value because of the moratorium. Hardyston appeals.
II
It is undisputed that the purpose behind the passage of the Watershed Protection Act was to “safeguard the interests of water quality, open space, recreation and conservation.” [In re Petition of Hackensack Water Co. to the Watershed Property Review Bd., 249 N.J.Super. 164, 173,
DEP was further directed to transmit its study, upon completion, to the Governor, the BPU and the Legislature. The Act provided for exemptions from the moratorium, but only upon a showing “that there is a compelling public need for the conveyance of the property, that the denial of the exemption would result in extraordinary hardship, or that the sale or development of the watershed property is otherwise consistent with the purposes of this act.” Applications for exemptions under the Moratorium Act were made subject to consideration by the Keview Board, which was created by the Act, consisting of the Commissioner of DEP, the Commissioner of the Department of Community Affairs and the President of the BPU.
According to a news release from the office of Governor Kean dated November 17, 1988, “[tjhe legislation was introduced to protect 287 acres in Bergen County owned by the Hackensack Water Company from sale and development.” The release also quoted the Governor as stating that “[pjreservation of open space is a top environmental priority of this Administration.”
The resoluteness with whieh the Legislature intended the moratorium to be enforced may be gathered from the narrow limitations placed upon exemptions____ [EJxemptions may be granted only where there is a “compelling public need,” “extraordinary hardship,” or where it can be shown that the conveyance will be “otherwise consistent with the purposes of this act.” While the exemption under review is based on a finding that the conveyance will be consistent with the purposes of the act, the use of words like “compelling public need,” and “extraordinary hardship,” in the same sentence reveal the stringency under which Hackensack seeks its exemption must be applied.
In re Petition of Hackensack Water Co. to the Watershed Property Review Bd., supra, 249 N.J.Super. at 169-170, 173,592 A.2d 250 .
The 1988 version of the Act stated:
For a period of eighteen months commencing on the effective date of this Act, no municipality, municipal utilities authority or public utility shall convey any land utilized for the purpose of the protection of a public water supply on the effective date of this Act____
The DEP undertook preparation of its report in conjunction with the Cook College, Department of Environmental Resources (Department). In the Report to Governor Thomas H. Kean, the New Jersey State Legislature, and the Board, of Public Utilities: Evaluation and Recommendations Concerning Buffer Zones Around Public Water Supply Reservoirs (December 1989), the
that until such time that a multi-zone buffer regulatory program is in effect for watershed associated with water supply reservoirs, tributaries and intakes, that no lands currently be conveyed unless it can be demonstrated that the intended use of the property would not result in measurable, calculable or predictable degradation of the existing water quality of the water supply reservoir, tributary, or intake waters.
[Ibid, (emphasis added) ]
Based on this report, the Department recommended that the Legislature adopt a system-wide set of controls with a broader scope than buffer zones alone.
In 1990, when the eighteen month period referred to in the 1988 Act was about to expire, the Legislature adopted L. 1990, c. 19 § 1, which amended the statute to read in part:
No municipality, municipal utilities authority or public utility shall convey any land utilized for the purpose of the protection of a public water supply prior to the adoption by the Department of Environmental Protection of the rules and regulations establishing buffer zones for all watershed lands associated with public water supply reservoirs for the purpose of protecting drinking water quality required pursuant to the “Watershed Protection Act,” P.L.-, c._____ (now before the Legislature as Senate Bill No. 2339 of 1990).
The Legislature specifically acknowledged the DEP report in a statement to a companion bill to the moratorium extension:
The Department of Environmental Protection recently completed the study evaluating the effectiveness of establishing buffer zones around public water supply reservoirs for the protecting drinking water quality required pursuant to section 3 of P.L. 1988, c. 163. In its report to the Governor, the Board of Public Utilities, and the Legislature, the DEP recommends that the Legislature enact legislation that would require the department to adopt rules and regulations establishing appropriate and effective buffer zones for all watersheds associated with water supply reservoirs, tributaries, and intakes. Further, the department strongly*393 recommends that the moratorium should continue until the buffer zone regulatory program is in place.
[Reprinted at N.J.S.A. 48:3-7].
Neither Senate Bill Number 2339 of 1990, nor any similar legislation was ever enacted although the Legislature has continued to wrestle with the problem. In the 1992-1993 legislative session, for example, nine watershed bills were introduced. Currently there are a number of bills regarding this issue. One bill would extend the moratorium (SB 808) and three would repeal it. (SB 1393, AB 2218, AB 1003). According to a recent newspaper article, legislators are working on a compromise to continue the moratorium while aiding tiny municipalities, such as Hardyston, that have been forced to pay relatively large tax refunds because of it. At a September 13, 1995, legislative hearing on the watershed moratorium issue, a representative from DEP declared the Department’s opposition to “simply lifting the watershed moratorium at this time.”
Ill
On appeal, Hardyston claims that the moratorium on transfer of watershed property under the Act has expired by its own terms as a result of the fact that neither Senate Bill No. 2339 of 1990 nor any similar legislation was ever enacted. Newark and the Attorney General counter that the moratorium was in effect on each of the assessment dates in question because a law designed to deal with important public policy goals must remain in effect if, as here, such an objective was reflected in the legislative intent.
In ruling on this issue, Judge Pizzuto stated:
Given that the legislature was concerned with the protection of such an important resource as the public water supply in choosing between the alternatives that the legislature intended its moratorium to lapse or that the legislature intended its moratorium to continue for a reasonable period of time until a permanent program could be implemented I have very little difficulty in concluding that the legislature wished the moratorium to continue until in cooperation with the executive branch it had finished the job.
[T]he legislature has expressed its intention ... to continue the moratorium in place subject to the case by case exemption provisions controlled by adequately*394 expressed standards until such time as the permanent program providing for the establishment of buffer zones can be completed. While there may ultimately be some limitation on the capacity of the legislature to continue an interim arrangement of this kind in effect I do not believe that in the circumstances of this case there is any basis to conclude that the ... limitation should be thought to apply here.
[T]he question continues to be under active review in both the executive and the legislative branches.
We agree with this analysis.
It is undisputed that a statute may be made contingent upon the happening of a future event. State v. Strong Oil Co., Inc.,
Generally, a remedial statute will be construed to include cases within its spirit or reason, although technically outside its letter, when necessary to effectuate the legislative intent. 82 C.J.S. Statutes, § 388 at 921 (1953). Where the drafters of a statute did not consider or contemplate a specific situation, a court should interpret the enactment consonant with the probable intent of the drafters, had the situation at hand been anticipated. AMN, Inc. v. South Brunswick Tp. Rent Leveling Bd., 93 N.J. 518, 525,
In addition, with respect to amendatory legislation, courts will not construe a statute in a manner that will render the amendments futile and abortive if that result can possibly be avoided. Evans v. Ross, 57 N.J.Super. 223, 229,
By enacting the 1990 legislation near the expiration of the eighteen-month moratorium, the Legislature clearly intended the moratorium to continue. To be sure, the Legislature specifically referred to legislation then under consideration in the 1990 amendment. But a fair reading of the Act indicates that that reference was only for the purpose of spelling out authorization pursuant to which the DEP would enact “rules and regulations establishing buffer zones for all watershed lands.” The adoption of the rules and regulations was the pivotal action on which the continuing vitality of the moratorium depended.
The Legislature is still wrestling with the problem of watershed protection. This issue is politically sensitive because it pits a matter of general concern (protection of watershed land and the water sources) against both the property rights of watershed owners and the taxing interests of municipal entities in which watershed land exists. Thus, the fact that no easy resolution has occurred is neither a surprise nor a signal that the moratorium was meant to expire.
The Legislature’s objectives remain the same today as they were when the Watershed Protection Act was conceived.
IV
We turn next to Hardyston’s challenge to Judge Lasser’s decision as to the true value and proper assessments of the parcels. In his opinion, Judge Lasser adopted Judge Pizzuto’s
The statute exists and would not be ignored by prospective purchasers and sellers. Therefore, I find that as of each of the assessing dates for the tax years 1991 through 1994, there should be a discount from the market value of the property to reflect the effect of the existence of the moratorium on the market for watershed property. This discount reflects the possibility of obtaining approval from the Watershed Review Board within a reasonable period of time as well as the costs which must be incurred during the period and the risk of restrictions on the use of the land. I find that this discount should be 10% for a three year period or a discount rate of .751315.
We affirm this conclusion. Clearly, the moratorium is not the type of temporary restraint which only creates a transitory absence of market. As such, it must be considered in determining true value. Newark v. Township of Jefferson, 13 N.J. Tax 217 (App.Div.1992), certif. denied, 133 N.J. 430,
Hardyston’s exhaustion argument is equally unpersuasive. There is neither legal nor logical support for the notion that, in order to establish a reduction in value of its property as a result of the Watershed Act, a taxpayer must first apply to the Review Board for an exemption from the moratorium, even where the taxpayer has no intention of transferring the land.
We turn finally to Hardyston’s constitutional arguments. Because they were not raised below, we need not address these issues. Nieder v. Royal Indemnity Ins. Co., 62 N.J. 229, 234,
As to Hardyston’s overbreadth argument, we observe that the overbreadth doctrine is generally restricted to limitations on First Amendment rights which are not present here. State v. Lee, 96 N.J. 156, 165,
Finally, we reject Hardyston’s special legislation claim. Hardyston’s suggestion that the Act singles out watershed property for special tax treatment is plainly wrong. What is involved here is a government-imposed restriction, contained in a uniform act, which may be considered in arriving at the true value of property. This does not constitute special tax treatment within the meaning of New Jersey State League of Municipalities v. Kimmelman, 105 N.J. 422,
Affirmed.
Notes
20 acres at the North end of Block 20 are not in the watershed.
