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9 N.J.A.R. 167

Pinelands Commission, New Jersey; Cicoria, Edward and Catherine v
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Citation: 9 N.J.A.R. 167
Decision Date: 1986
Agency: PINELANDS COMMISSION
Synopsis: Petitioners appealed from the denial of their application for a waiver of strict compliance with the provisions of the Pinelands Com- prehensive Management Plan, N.J.A.C. 7:504.66. While the administrative law judge assigned to the case found petitioners' argument compelling, he concluded that the extraordinary hardship required for a waiver had not been established. The judge rejected the notion that an extraordinary hardship would be worked upon petitioners if they were required to leave the land as it is without building their retirement home or to use it for an agricultural purpose, which their age and health prevented them from doing, since neither were found to be an extraordinary hardship within the meaning of N.J.S.A. 7:50-4.66. Specifically, petitioners had failed to show that their property was not capable of yielding a reasonable return if used for its present use or developed as authorized by the plan; and, that this inability resulted from unique circumstances peculiar to that property which: (1) do not apply to or affect other property in the immediate vicinity; (2) relate to or arise out of the characteristics of the subject property rather than the personal situation of the applicant; and (3) are not the result of any action or inaction by the applicant or the owner of his prede- cessors in title. Nor had petitioners demonstrated the required good faith reliance on any valid municipal development approval nor estab- lished a compelling public need. Petitioners also attacked the constitutionality of that part of the Plan which permits the construction of residential dwelling units by members of two-generation extended families who have resided in the Pinelands for at least 20 years. The petitioners argued that such a provision was discriminatory. Since the matter did involve a facial attack on the constitutionality of a regulation and was not coupled with other issues, the judge determined that the Office of Adminis- trative Law was not the appropriate forum to resolve that issue. He did note however, that such a provision would not violate the equal protection provision of the State Constitution in that it is reasonably intended to serve the purpose of protecting the essential character of the Pinelands by benefiting those who have a long residential attach- ment to it. Accordingly, the appeal from the denial of the waiver of strict compliance was dismissed. Upon review, this initial decision was adopted by the Pinelands Commission. Edward and Catherine Cicoria, petitioners, pro se Priscilla E. Hayes, Deputy Attorney General, for respondent (W. Cary Edwards, Attorney General of New Jersey, attorney)
Rule(s) Cited: 7:50-4.66 7:50-4.66(a) 1 7:50-5.31(b) 
Citation Tracker rejected-Dept. of Health; affirmed -App. Div., A-213-85, 4/20/87 (unreported) [Updated through 1991]