CITY OF NEWARK V. DEPT OF ENVIRONMENTAL PROTECTION
Case Date: 11/13/1995
Court: Superior Court of New Jersey
Docket No: none
|
SUPERIOR COURT OF NEW JERSEY
CITY OF NEWARK,
Plaintiff-Respondent,
and
THE STATE OF NEW JERSEY,
Intervenor-Respondent,
v.
TOWNSHIP OF HARDYSTON,
Defendant-Appellant.
________________________________________________
Argued September 20, l995 - Decided November
13, 1995
Before Judges Long, Muir and Brochin.
On appeal from a final judgment of the Tax
Court.
Kevin D. Kelly argued the cause for appellant
(Kelly, Gaus & Holub, attorneys; Mr. Kelly on
the brief).
Philip S. Elberg argued the cause for
respondent (Medvin & Elberg, attorneys; Mr.
Elberg and Edna Y. Baugh, of counsel and on
the brief).
Caroline Vachier, Deputy Attorney General,
argued the cause for intervenor-respondent
(Deborah T. Poritz, Attorney General,
attorney; Andrea M. Silkowitz, Assistant
Attorney General, of counsel; Lorenza Evans,
Deputy Attorney General, on the brief).
The opinion of the court was delivered by
LONG, P.J.A.D. The case arose out of the filing of four real property tax appeals by the City of Newark that contested the assessment of Newark's watershed property in the Township of Hardyston. The subject parcels are located in the Pequannock Watershed and are part of the 35,000 acre Newark watershed property located in Passaic, Sussex and Morris counties. They are designated as Block 20, Lot 32;See footnote 1 Block 36, Lot 9.01; Block 37, Lot 2; and Block 38, Lot 3 on the Hardyston Township tax map. The watershed designation arises out of the fact that rainfall travels from the parcels to the Pequannock River and then to the Charlottesburg Reservoir. The property is characterized by steep slopes, wetlands, rare species and soil limitations. These conditions, along with resulting environmental constraints, render less than fifteen percent of the land suitable for development. The property is located in the Minimum Impact Development zone of Hardyston which permits cluster development of detached single-family dwellings with a maximum density of .2 units per acre. The parties and the Tax Court agreed that the highest and best use of the four parcels is to develop them for single-family residential use as if they were one parcel. Newark has no plans for development. At the heart of the appeals is Hardyston's contention (advanced in a motion for partial summary judgment in the Tax Court) that the moratorium in the Act should not be considered in determining the true value of Newark's watershed property. Seven other taxing districts joined the motion in support of Hardyston, and the Attorney General intervened on behalf of the Department of Environmental Protection (DEP) in defense of the continued vitality of the moratorium. Judge Pizzuto denied Hardyston's motion, affirming the continued viability of the Act. Thereafter a trial was held before Judge Lasser who determined the true value and proper assessments of the four parcels, discounting the value because of the moratorium. Hardyston appeals. It is undisputed that the purpose behind the passage of the Watershed Protection Act was to "safeguard the interests of water quality, open space, recreation and conservation." [Petition of Hackensack Water Co. to Watershed Property Review Bd., 249 N.J. Super. 164, l73 (App. Div.), certif. denied, 127 N.J. 551 (1991).] The specific impetus for the Act was the threatened transfer of particular watershed property in Bergen County which alerted the Legislature to the need for watershed protection across the board.
The vehicle chosen was a moratorium on the transfer of watershed
lands, to permit time for the DEP to study and report on the need
for and means to secure watershed protection. Included in the
proposed study was an evaluation of the effectiveness of
establishing buffer zones around public water supply reservoirs for
the purpose of protecting drinking water quality.
. . . .
According to a news release from the
office of Governor Kean dated November 17,
1988, "[t]he legislation was introduced to
protect 287 acres in Bergen County owned by
the Hackensack Water Company from sale and
development." The release also quoted the
Governor as stating that "[p]reservation of
open space is a top environmental priority of
this Administration."
. . . . The resoluteness with which the Legislature intended the moratorium to be enforced may be gathered from the narrow limitations placed upon exemptions.... [E]xemptions may be granted only where there is a "compelling public need," "extraordinary hardship," or where it can be shown that the conveyance will be "otherwise consistent with
the purposes of this act." While the
exemption under review is based on a finding
that the conveyance will be consistent with
the purposes of the act, the use of words like
"compelling public need," and "extraordinary
hardship," in the same sentence reveal the
stringency under which Hackensack seeks its
exemption must be applied.
Petition of Hackensack Water Co.to Watershed
Property Review Bd., 249 N.J. Super. l69-l70,
l73.
The l988 version of the Act stated:
that until such time that a multi-zone buffer
regulatory program is in effect for watershed
associated with water supply reservoirs,
tributaries and intakes, that no lands
currently be conveyed unless it can be
demonstrated that the intended use of the
property would not result in measurable,
calculable or predictable degradation of the
existing water quality of the water supply
reservoir, tributary, or intake waters.
[Ibid. (emphasis added)]
Based on this report, the Department recommended that the
Legislature adopt a system-wide set of controls with a broader
scope than buffer zones alone.
to adopt rules and regulations establishing
appropriate and effective buffer zones for all
watersheds associated with water supply
reservoirs, tributaries, and intakes.
Further, the department strongly recommends
that the moratorium should continue until the
buffer zone regulatory program is in place.
[Reprinted at N.J.S.A. 48:3-7].
Neither Senate Bill Number 2339 of l990, nor any similar
legislation was ever enacted although the Legislature has continued
to wrestle with the problem. In the l992-l993 legislative session,
for example, nine watershed bills were introduced. Currently there
are a number of bills regarding this issue. One bill would extend
the moratorium (SB 808) and three would repeal it. (SB l393, AB
22l8, AB l003). According to a recent newspaper article,
legislators are working on a compromise to continue the moratorium
while aiding tiny municipalities, such as Hardyston, that have been
forced to pay relatively large tax refunds because of it. At a
September l3, l995, legislative hearing on the watershed moratorium
issue, a representative from DEP declared the Department's
opposition to "simply lifting the watershed moratorium at this
time." On appeal, Hardyston claims that the moratorium on transfer of watershed property under the Act has expired by its own terms as a result of the fact that neither Senate Bill No. 2339 of l990 nor any similar legislation was ever enacted. Newark and the Attorney General counter that the moratorium was in effect on each of the assessment dates in question because a law designed to deal with
important public policy goals must remain in effect if, as here,
such an objective was reflected in the legislative intent.
Given that the legislature was concerned with
the protection of such an important resource
as the public water supply in choosing between
the alternatives that the legislature intended
its moratorium to lapse or that the
legislature intended its moratorium to
continue for a reasonable period of time until
a permanent program could be implemented I
have very little difficulty in concluding that
the legislature wished the moratorium to
continue until in cooperation with the
executive branch it had finished the job.
[T]he legislature has expressed its intention
. . . to continue the moratorium in place
subject to the case by case exemption
provisions controlled by adequately expressed
standards until such time as the permanent
program providing for the establishment of
buffer zones can be completed. While there
may ultimately be some limitation on the
capacity of the legislature to continue an
interim arrangement of this kind in effect I
do not believe that in the circumstances of
this case there is any basis to conclude that
the . . . limitation should be thought to
apply here.
[T]he question continues to be under active
review in both the executive and the
legislative branches.
We agree with this analysis.
Legislature had declared "abnormally disrupted" at the time the
legislation was enacted), appeal dismissed,
451 N.Y.S.2d 437 (App.
Div. 1982). What is at issue in this appeal is whether that
statute remains valid if the contingency does not occur.
amendatory language, the court must look to the prior law, the
matters deemed to require correction, and the remedy enacted;
courts will not construe a clause in a statute in such a fashion as
to charge the Legislature with deliberately rendering impotent the
clear and unambiguously expressed intention of the whole act.
Asbury Park Press v. City of Asbury Park,
19 N.J. 183, 196 (1955). objective is the protection of the watershed which has been designated "a matter of grave concern" and "essential to the health, safety and well-being of all the citizens of New Jersey." The second objective is creating a comprehensive statewide policy while paying careful attention to regional differences, relative population density, levels of growth and development, and similar land use considerations in the implementation of a "multi-zone buffer approach to statewide watershed management." When the Legislature referenced S2339 in the moratorium extension, it anticipated that watershed protection would go forward with that bill as the means to achievement. That such protection did not occur, does not mean that all the activity which has taken place up to this point should be vitiated. Simply because the Legislature has not entirely completed its task does not mean that the incremental steps taken to date are unreasonable. See Jamouneau v. Harner, l 6 N.J. 500, 5l8, cert. denied 349 U.S. 904, 75 S.Ct. 580, 99 L.Ed.l24l (l955); Reiser v. Pension Commission, Passaic Cty., l47 N.J. Super. l68, l80 (Law Div. l976). An interpretation of the Act concluding that the moratorium has expired, would fly in the face of common sense, omit consideration of the breadth and importance of the legislative objectives, and render the l990 amendment futile. While the moratorium legislation was not a model of draftsmanship, it is plain to us that the Legislature intended the limit on the transfer of watershed lands to continue until a statewide watershed system is in place as recommended by the Department's Report. If the Legislature did not so intend, or if
it has a new view of watershed protection, it is free to say so.
We thus affirm Judge Pizzuto's conclusion that the moratorium in
the Watershed Act continues to be in force and effect. We turn next to Hardyston's challenge to Judge Lasser's decision as to the true value and proper assessments of the parcels. In his opinion, Judge Lasser adopted Judge Pizzuto's finding that the moratorium continues. Hardyston argued and continues to argue that the moratorium does not affect the value of watershed land. Judge Lasser disagreed: The statute exists and would not be ignored by prospective purchasers and sellers. Therefore, I find that as of each of the assessing dates for the tax years 1991 through 1994, there should be a discount from the market value of the property to reflect the effect of the existence of the moratorium on the market for watershed property. This discount reflects the possibility of obtaining approval from the Watershed Review Board within a reasonable period of time as well as the costs which must be incurred during the period and the risk of restrictions on the use of the land. I find that this discount should be 10" for a three year period or a discount rate of .751315.
We affirm this conclusion. Clearly, the moratorium is not the type
of temporary restraint which only creates a transitory absence of
market. As such, it must be considered in determining true value.
Newark v. Township of Jefferson,
13 N.J. Tax 217 (App. Div. 1992),
certif. denied,
133 N.J. 430 (1993).
of the Watershed Act, a taxpayer must first apply to the Review
Board for an exemption from the moratorium, even where the taxpayer
has no intention of transferring the land.
The fact that the Tax Court held that the moratorium could be
considered in determining the value of municipally owned watershed
property simply does not implicate the constitutional doctrine of
overbreadth. Footnote: 1 20 acres at the North end of Block 20 are not in the watershed.
|