In Griepenburg v. Township of Ocean, 220 N.J. 239 (2015), the New Jersey Supreme Court upheld a down-zoning to one home per 20 acres in the Township of Ocean, Ocean County. The New Jersey Supreme Court continues its relaxation of the proof requirements necessary for a municipality to justify large lot environmental preservation zoning. Once again landowners are shouldering the loss of virtually their entire land equity, without any compensation, as New Jersey municipalities and the New Jersey Department of Environmental Protection (NJDEP) seek to preserve environmentally sensitive land. The Griepenburg decision continues the erosion of Pheasant Bridge v. Warren Township, 169 N.J. 282 (2001), which established the proof requirements necessary for a municipality to sustain large lot zoning as applied to a particular parcel.
The Griepenburg's property is adjacent to Exit 69 on the Garden State Parkway at Route 532. To the rear of the Griepenburg's property is a large senior development. Farther to the east are single-family residential homes and the gateway into Waretown. The Griepenburg property had initially been included in the proposed Waretown Town Center. The Watertown Town Center was a CAFRA center designation that would permit development at intensities indicative of center-based development. Initially, the Township envisioned a scale of town center that would enable Waretown to expand to the Parkway. The Griepenburg property was included in this draft center designation. Toward the end of the center designation process with the Office of State Planning, the NJDEP objected to the size and extent of development within the proposed center.
Large areas between Waretown and the Garden State Parkway constituted a contiguous forested area that was suitable habitat for threatened and endangered species. The NJDEP required Ocean Township to reduce the size and scale of the proposed town center in order to enable preservation of these contiguous forested areas. As a result of the NJDEP's objection, the Township agreed to reduce the Waretown Town Center by eliminating any expansion of the center into this forested area. Once the Township agreed to limit this expansion potential, NJDEP approved the CAFRA center designation for the "scaled back" Waretown Town Center.
The Griepenburgs were caught in this policy dispute, as their property was largely undeveloped forested area. Once taken out of the Waretown Town Center, the Griepenburg property was placed into an environmentally sensitive plan designation (Planning Area 5), and the Township zoning was amended to effectuate this environmental preservation policy. A density of one unit per 20 acres was adopted, effectively limiting the Greipenburgs to their existing homestead and wiping out prior commercial zoning along their Route 532 frontage.
The trial court upheld the Township's efforts, holding that the one unit per 20 acre designation was substantially increasing environmental preservation, notwithstanding the fact that no specific environmental areas of concern were located on the Griepenburg property. The Appellate Division reversed, citing Pheasant Bridge v. Warren Township 169 NJ 282 (2001), which established the requirement that there be a nexus between the environmental conditions being sought to be preserved and the underlying zoning. The Supreme Court upheld the trial court, holding that the Appellate Division extended Pheasant Bridge beyond its intended holding. Instead, the Supreme Court found the trial court's findings of fact sufficient to authorize the municipal action and upheld the down-zoning of the Griepenburg property for preservation purposes.
What is lost in this process is a very fundamental and simple proposition: that the Fifth Amendment of the United States Constitution and the First Amendment of New Jersey's constitution prohibit the taking of private property for public uses without the payment of just compensation. More New Jersey landowners who failed to "bailout" and sell to developers are now being penalized and forced to preserve their property for open space purposes for the benefit of the public, without any payment of just compensation. Down-zoning of the magnitude as experienced by the Griepenburgs constitutes a "wipe out" of equity, leaving the Griepenburgs with no residual value to their property except as a homestead.
In addition, the Griepenburg court established a requirement for the exhaustion of administrative remedies on any "as applied" challenge to a zoning ordinance, where the "taking" claim is inclusive of the challenge to the validity of the underlying zoning ordinance. The Supreme Court viewed the use variance process as an administrative remedy that must be pursued prior to the institution of an "as applied" zoning challenge. The Supreme Court's holding is troubling, as it fails to address almost 30 years of jurisprudence regarding commercial use variances. Mediciv. BPR, 107 N.J. 1 (1986). Use variances are not designed to usurp the municipal legislative power to zone. However, it appears that the use variance process may now be required to be followed, even where the landowner is only seeking a fair and equitable zoning, and not a particular development proposal.
The Griepenburg decision is alarming for property owners, particularly farmers, who continue to face a relentless assault on their land equity in the face of environmental and open space preservation efforts.
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