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10 N.J.A.R. 24

Pinelands Commission; Pagnotti, Eugene and Margaret v
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Citation: 10 N.J.A.R. 24
Decision Date: 1987
Agency: PINELANDS COMMISSION
Synopsis: Petitioners sought a waiver of strict compliance from the Pinelands Comprehensive Management Plan to build a single family home on 2.37 acres of land located in a Rural Development Area of the Pinelands. The administrative law judge assigned to the case noted that the issues to be resolved in the case were: 1) Whether the petitioners had established that they would suffer an extraordinary hardship if the waiver were denied; and 2) In determining whether to grant the waiver, what, if any, consideration was to be given to the prior approval by the Pinelands Commission of the subdivision of a 4.37 acre lot of which the subject lot was a part. The judge found that prior approval had created the subject 2.37 acre lot along with two one acre lots. While the approval had per- reitted the development of a single family dwelling on each lot, it had precluded development of the subject lot because of a seasonable high water table. Subsequently, the prior owner of the parcel submitted an application for a waiver to permit development of a two lot subdivision of the subject parcel which was denied. The judge noted that N.J.A.C. 7:50-4.66(a)1 established the criteria for extraordinary hardship and that it contains no reference to the personal circumstances of the applicant but rather focused on the physical characteristics of the land and a consideration of the capability of the property's yielding a reasonable return. Here the judge found that the current application to develop the lot and the former application by the prior owner do not differ in any material way. The judge noted that when considering this property which was the subject of a former application for development approval and a waiver, one must look back at the history of the entire tract in order State of New Jersey 25 to determine how the property should be treated at this time. Under applicable policies of the Commission, all contiguous properties owned by an applicant must be considered in determining whether a reasonable rate of return can be obtain. ed. Under the prior owner, the subject lot, along with the other subdivided lots would have to have been considered in determining the rate of return. That being so, the original owner was unable to establish an extraordinary hard- ship based on an inability to obtain a reasonable rate of return. When the lot was sold to the present owners, they took it with the same disability attached. The judge noted that for them to claim a right to a waiver for this lot without considering the fact that the original owner had already been found to have been capable of obtaining a reasonable rate of return for the total property, including the subject lot, would permit this succeeding property owner greater right than the original owner. Accordingly, the judge concluded that petitioners application was denied by res judicata and should, therefore, be denied. Upon review this initial decision was appealed by the Pinelands Commission. Eugene and Margaret Pagnotti, petitioners, pro se Marty M. Judge, Deputy Attorney General, for respondent (W. Cary Edwards, Attorney General of New Jersey, attorney)
Rule(s) Cited: 7:50-4.66(a) 1