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1 N.J.A.R. 261

Pinelands Commission; Atlantic Utility Construction Co. v
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Citation: 1 N.J.A.R. 261
Decision Date: 1980
Agency: PINELANDS COMMISSION
Synopsis: In seeking to develop property located in the 'Protection Area' of the Pinelands, as that area is defined by N.J.S.A. 13:18A-a et seq., Atlantic Construction Co. sought to challenge the constitutional validity of the Pinelands Protection Act and/or the subsequently developed Interim Rules. The Pinelands Commission objected to the consideration of these issues by an administrative law judge on the ground that the judge lacked jurisdiction to consider and rule upon the constitutional facial validity of statutes and regulations. The Commission argued that the only proper procedure for a challenge to a duly adopted regulation was by review in the Appellate Division and that a review of such issues by an administrative law judge would usurp the function of the Attorney General and the courts. In reaching his decision on this jurisdiction question, the administrative held that the 'label' placed on an issue as either legal or constitutional was not of particular concern in determining what forum should initially adjudicate an issue. Of more concern were 'considerations of relative delay and expense, the necessity of taking evidence and making factual determinations therefor, the nature of the agency and the extent of judgment, discretion and expertise involved, and such other pertinent factors as may clearly serve to aid in determining whether, on balance, the interests of justice dictate the extraordinary course of bypassing the administrative remedies made available by the Legislature.' Railway Express, at 14 I. The judge reasoned that in the normal course of events the preferred method for initially determining all issues of law and fact in the administrative field is within the administrative forum itself and noted that such a position was well within the accepted doctrines of exhaustion of remedies and the single controversy rules. While acknowledging that purely 'legal' cases should be brought in the courts, the administrative law judge argued that in cases where a facial attack is coupled with other issues, the issues should initially be considered in the administrative forum. Nor did the judge feel that the Rule of Court (R. 2:2-3), which places review of final agency decisions and the validity of agency regulations in the Appellate Division, barred his consideration of the validity of the regulations, since the Rule serves only to channel litigation in the judicial branch and not to bar initial agency considerations of the validity of an agency regulation. The administrative law judge rejected the arguments that he was unable to consider the question of validity since the Pinelands Commission was bound to follow the advice of the Attorney General in applying its regulations and the agency itself lacked the power to decide questions concerning the validity of its enabling statute. The judge pointed out that while it was certainly true that the Attorney General properly exercised this function on a day-to-day basis, once a matter became contested and was before an administrative law judge, the Attorney General's function shifted from an advisor to an advocate whose arguments need not necessarily be accepted. N.J.S.A. 52:17A-4 clearly recognizes that during the adjudication phase of agency activity, the Attorney General plays no binding advisory role. The judge observed that even if an agency felt it lacked the power to actually refuse to enforce a statute because of its unconstitutionality or other invalidity, there was nothing inappropriate in an administrative law judge or an agency expressing its opinion for future consideration by the courts. The Commission argued that the judge could not consider the validity question since it had 'delegated to and delineated for the Office of Administrative Law which issues it needs determined in order to make such a final determination' and the validity of the issue was not among them was rejected by the judge. The judge noted that where an agency head does not exercise the right to hear a case, all of that case is transmitted to the OAL for hearing. The fact that an agency may not wish an issue decided does not preclude the administrative law judge from considering it since there may be other issues which must be determined in order to provide a complete consideration of all relevant matters. Accordingly, the judge concluded that he was.free to consider the constitutionality of the statute and regulations and directed the hearing would be conducted in light of this determination. David Weiss, Esq., and Lewis Kurland, Esq., for Petitioner William H. Loreritz, Deputy Attorney General, for Respondent (John J. Degnan, Attorney General of New Jersey, Attorney) State of New Jersey 263
Citation Tracker modified-Pinelands Comm.; affirmed -App. Div., A-456-80, 3/18/82 (unreported) [Updated through 1991]