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10 N.J.A.R. 14

Pinelands Commission; Colon, Edward and Patricia A. v
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Citation: 10 N.J.A.R. 14
Decision Date: 1987
Synopsis: Petitioners applied to the New Jersey Pinelands Commission for a waiver of strict compliance from the provisions of the Pinelands Comprehensive Management Plan in order to resubdivide two existing lots. The subdivision would enlarge one lot to encompass all structures currently on the two lots and would establish the second lot as a separate buildable lot for the purpose of constructing a single-family dwelling. The administrative law judge assigned to the case determined that since the seasonal high water table of the property is less than five feet below the natural ground surface and that since the proposed building site will be within 300 feet of inland wetlands, the proposed construction of the single family dwelling would be inconsistent with the requirements of the Plan pursuant to N.J.A.C. 7:50-6.84(a)3iii and 7:50-6.5(a)2. Accordingly petitioners' proposal would require a waiver. The judge noted that in order for petitioners to qualify for a waiver, they must establish that strict compliance with the plan would result in extraordinary hardship pursuant to N.J.A.C. 7:50-4.66(a)1.i. The judge noted that the Commission had in prior administrative decisions expressed a long-standing policy that contiguous lots under common ownership must be viewed together in any determination of extraordinary hardship. Accordingly, no consideration could be given to the marketability and fair market value of the second lot alone. Rather it would have to be determined if there would be a reasonable return from the second lot (in its undeveloped state) in the event it were included in a potential sale with the contiguous developed lot. The judge concluded the combined two lots were capable of yielding a reasonable return. The judge also noted that the reasons cited by petitioners for their desire to build on the second lot, although believable and compelling, were of a personal nature rather than related to the physical characteristic of the site and, as such, could not be considered as a basis for an extraordinary hardship. In addition, the predicament in which the petitioners found themselves was evidently due to their own inaction at the time the land was purchased and not to any opinion expressed by the Commission. Upon review, this initial decision was adopted by the New Jersey Pinelands Commission. Edward and Patricia A. Colon, petitioners, pro se Loraine Otis, Deputy Attorney General, for the respondent (W. Cary Edwards, Attorney General of New Jersey, attorney)
Rule(s) Cited: 7:50-4.66(a) 1 7:50-6.5(a)2 7:50-6.84(a)3iii