#8 Genova Burns’ 30th Anniversary Countdown of the Most Influential Cases, Events and Laws

HISTORY:

In 1978, the U.S. Congress passed the National Parks and Recreation Act, which declared the New Jersey Pine Barrens the first National Reserve and authorized the creation of a planning entity to determine the use of the land in the Pinelands National Reserve. In 1979, under the leadership of then Governor Brendan T. Byrne, the New Jersey Pinelands Protection Act was enacted into law.

The New Jersey Pinelands Protection Act implemented the National Parks by establishing the New Jersey Pinelands Commission to preserve, protect, and enhance the natural and cultural resources of the Pinelands National Reserve. The Act required that the Commission adopt a Comprehensive Management Plan (CMP) to regulate development in the Pinelands. The Commission put rules in effect to regulate development in the Pinelands, while encouraging compatible economic and human activities consistent with its purpose.

“Today, more than ever, we are a society that is consistently focused on the environment. Political leaders are regularly called upon to consider far-reaching and long-term legislation on environmental sustainability and related issues,” said William F. Harrison, Esq., Partner at Genova Burns. “To that end, the Pinelands Protection Act and the CMP still stand as a prime and early example of how government protections, at the state and federal level, can make a positive and lasting effect on environmental sustainability.”

The Pinelands National Reserve is approximately 1.1 million acres and spans portions of seven counties and all or part of 56 municipalities. It occupies 22% of New Jersey's land area and it is the largest body of open space on the Mid-Atlantic seaboard between Richmond and Boston. Altogether the Pinelands cover all or parts of 56 municipalities and parts of seven counties. Today, nearly half the Pinelands area — about 450,000 acres — has been permanently preserved as open space.

The Pinelands is home to dozens of threatened and endangered plant and animal species. The Kirkwood-Cohansey aquifer system in the Pinelands contains an estimated 17 trillion gallons of some of the purest water in the country. The aquifer is particularly vulnerable to pollution due to the sandy soils in the Pinelands. Protecting the water quality of this aquifer and the unique flora and fauna of the Pinelands from the impacts of development were among the primary purposes of enacting the Pinelands legislation.

On November 25, 1967, the New Yorker published the first part of a two-part series, written by John McPhee, about the Pine Barrens. He described the view from a fire tower, which he said was of countless hundreds of square miles of wilderness as far as the eye could see. McPhee described the area as the last expanse of wilderness in what he believed would become an unbroken city from Boston, Mass. to Richmond, Va. In his second article, he wrote that he hoped the land would become a national reserve, but with the fear that forests, in general, were headed for extinction. McPhee’s brother had been a classmate of the future Governor Byrne at both Princeton University and Harvard Law School, and, according to Byrne, McPhee and his words in the New Yorker had a major impact on him.

In his 1977 re-election campaign, Byrne argued for strong controls over development in the Pinelands region. In mid-1977, he established the Pinelands Review Committee to outline the boundaries of the Pinelands and developed a plan to preserve it. After winning the election, he pushed for legislation to protect the Pinelands. State action was slow and federal action wound up coming first.

Congressional leaders, including then Democratic U.S. Rep. (and later New Jersey Governor) James Florio, introduced a bill requiring the state to create a “land management commission” with oversight over development in the Pinelands and declared that the Pinelands would be the first National Reserve. This proposed legislation was included in the National Parks and Recreation Act in late 1978. In early 1979, Governor Byrne created the Pinelands Planning Commission through Executive Order. The order also imposed restrictions on approvals of permits for development in the Pinelands.

Byrne’s actions were an unprecedented use of gubernatorial power and was immediately challenged in court by builders. The Governor's advisors and the Attorney General doubted that the order would outlast legal challenge, but it did put pressure on the legislature to approve the establishment of a permanent Pinelands Commission to override municipal land-use decisions. In June of 1979 the Pinelands Protection Act (the “Act”) was enacted into law and the lawsuit challenging the Governor Byrne’s Executive Order was dismissed as moot by the New Jersey Supreme Court.

REGULATORY SUMMARY:

The Act required the Pinelands Commission to develop a Comprehensive Management Plan (CMP) controlling land use in the Pinelands. The CMP was adopted by the Commission in 1980 and approved by the U.S. Secretary of the Interior, Cecil D. Andrus, the following January. The Act required that county and municipal master plans and land use ordinances, be brought into conformance with the CMP. In the Pinelands Area, all county and municipal master plans and land use ordinances have been certified by the Pinelands Commission as being in conformance with the CMP.

The Act separates the Pinelands Area into the Preservation Area and the Protection Area. The Preservation Area consists of about 39 percent of the total Pinelands Area and contains large tracts of relatively unbroken forest (designated as Preservation Area District) and the New Jersey berry industry (designated as Special Agricultural Production Areas). Development is highly restricted in the Preservation Area-limited to small existing villages and infill areas.

The Protection Area contains a mix of large forested areas that were similar to the Preservation Area, farmland, subdivisions, adult communities, and towns. In recognition of the differences within the Protection Area, the Commission established 5 different management areas within the Protection Area: Forest Areas; Agricultural Production Areas; Rural Development Areas; Pinelands Towns and Villages; and Regional Growth Areas. Densities range from 1 dwelling unit per 17 acres of uplands in the Forest Area to 3.5 units per acre in more developed Regional Growth Area municipalities. If the overall density in the management area was maintained, municipalities were given the flexibility to establish different zoning districts with different densities within the management area.

Recognizing the restrictions on development in the Preservation Area District and in the Agricultural Production Areas, the CMP established the Pinelands Development Credit program. Pinelands Development Credits are allocated to landowners in the Preservation Area District. Once the land is deed restricted from further development, these Credits can be sold to developers in Regional Growth Areas who can use the Credits to build at a higher density. Over 52,000 acres have been permanently preserved through the Pinelands Development Credit program.

The Commission also established the Military and Federal Installation Area as a management area in recognition of the presence of the Joint Base McGuire Dix Lakehurst and the Federal Aviation Administration Technical Center in the Pinelands. Uses associated with those facilities are allowed in that management area.

In addition to regulations concerning the permitted uses in the various management areas, the CMP also establishes environmental standards that all development must meet. These regulations include protections of wetlands, water quality, threatened and endangered species, cultural resources, scenic resources and air quality. Use of Pinelands native vegetation is required for landscaping.

Numerous legal challenges to the CMP were brought after its adoption. Federal and State courts uniformly upheld the validity of the CMP. The CMP has successfully directed significant growth to areas that are suitable for growth while maintaining to this day the large contiguous forested area in the remainder of the Pinelands.