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12 N.J.A.R. 92

Third New Jersey Corporation (Richard and Barbara Fetske) v. Pinelands Commission
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Citation: 12 N.J.A.R. 92
Decision Date: 1989
Synopsis: Petitioner appealed the recommendation of the executive director of the Pinelands Commission that its request for a waiver of strict compliance with the Pinelands Comprehensive Management Plan be denied. The matter was transmitted to the Office of Administrative Law for a hearing. Petitioner requested a waiver of seasonal high water table require- ments in order to develop a single family dwelling on its lot. The lot was originally part of a larger parcel owned by petitioner that was subdivided in 1984. The Pinelands Commission contended that the application for a waiver must be evaluated on the basis of the original larger parcel because all contiguous lands in common ownership on or after January 14, 1981 must be considered in determining whether the subject parcel has a beneficial use. According to the Commission, because the entire parcel could have a beneficial use, the waiver must be denied. The administrative law judge assigned to the case granted respon- dent's motion to dismiss. Petitioner did not establish grounds for granting a waiver. If the lot does not have a beneficial use, it is a result of the subdivision. In order to be the basis of a waiver, lack of beneficial use may not result from an action or inaction of the applicant. In addition, the judge rejected petitioner's argument that State of New Jersey 93 the Pinelands Commission should have advised petitioner that the subdivided parcel was unusable for a dwelling. A person of ordinary prudence would have drawn that conclusion from testimony by the assistant director of the Commission at a meeting of the Southampton Township Planning Board. Upon review, this initial decision was adopted by the Pinelands Commission. The original overall parcel had a beneficial use. Any hardship that now exists is the result of the subdivision, not the characteristics of the subject lot. N.J.A.C. 7:50-4.66(a)1iii precludes granting a waiver if the hardship is a result of the actions or inactions of the applicant, including the transfer of contiguous lands. Therefore, the petitioner did not qualify for a waiver. The Pinelands Commission also noted that it is under no legal obligation to notify an applicant that a proposed development, such as a subdivision, will preclude future potential development of a parcel. Robert A. DelSordo, Esq., for petitioner Paul H. Schneider, Deputy Attorney General, for respondent (W. Cary Edwards, Attorney General of New Jersey, attorney)
Rule(s) Cited: 7:50-4.66 7:50-6.84(a)4iv