United States: NJ Townships Possess Broad Zoning Powers To Preserve Environmentally Sensitive Land

Last Updated: April 21 2015
Article by Margaret A. Hill and Louis Abrams

On January 26, 2015, the New Jersey Supreme Court in the matter of Griepenburg v. Township of Ocean unanimously affirmed a municipality's right to designate property as "environmentally sensitive" in order to restrict "high-density development." Griepenburg v. Twp. of Ocean, 105 A.3d 1082, 1097 (N.J. Jan. 22, 2015). This case, which has been winding its way through New Jersey courts for seven years, involved a series of ordinances enacted by the New Jersey Township of Ocean ("Township") as part of a comprehensive municipal zoning plan and "smart growth" planning process. See id. at 1086.

The Griepenburgs

The plaintiffs, the Griepenburgs, have owned 34 acres of land in the Township since 1985. See id. at 1086-87. Their home is on a two-acre lot, while the balance of their 32 acres consists of undeveloped woodlands. See id. at 1087. Until recently, parts of these undeveloped lands were zoned commercial, thereby permitting the development of hotels, retail space, offices, and medical facilities. See id. As such, the Griepenburgs enjoyed significant future development potential under the existing zoning scheme, including several purported offers from hotel chains to purchase their property. See Griepenburg v. Township of Ocean, 2013 N.J. Super. Unpub. LEXIS 2154, at *3 (N.J. App. Div. Aug. 29, 2013).

The Township of Ocean

In 2004, the Township became interested in concentrating development in a town center and slowing development in the outer portions of the Township in an alleged effort to protect environmentally sensitive coastal areas through the creation of a so-called "green belt" of undeveloped forest land. See Griepenburg, 105 A.3d at 1084-85, 1094. In furtherance of this plan, the Township, in 2006, "down-zoned" the Griepenburgs' property to an environmentally sensitive land use designation, thereby prohibiting any opportunity for commercial development. See id. at 1085. This action effectively destroyed the Griepenburgs' ability to commercially develop their land. See id.

The Appellate Division's Ruling

As a result, the Griepenburgs sued the Township, arguing that this exercise of municipal zoning power was arbitrary, capricious, and unreasonable. In support of this allegation, the plaintiffs contended that this environmentally sensitive zoning designation was improper because the subject property contained "no environmentally sensitive characteristics" such as "open waters, wetlands, floodplains, steep slopes, or...documented [threatened and endangered species] habitat[s]." See id. at 1089. Without such environmental "constraints," the plaintiffs argued, the Township was merely trying to acquire the Griepenburgs' property for use as open space without paying fair market value. See id.

On appeal, the Appellate Division sided with the plaintiffs, invalidating the zoning ordinances in an unpublished opinion. In so holding, the Appellate Division indicated that any land designated as "environmentally sensitive" must contain environmentally sensitive characteristics such as floodplains or endangered species habitats. See Griepenburg v. Township of Ocean, 2013 N.J. Super. Unpub. LEXIS 2154, at *18.

NJ Supreme Court Ruling

In its January 2015 opinion, the New Jersey Supreme Court took a broader view of a township's ability to zone environmentally sensitive areas. See Griepenburg, 105 A.3d at 1093-94. In reversing the Appellate Division, the court concluded that the plaintiffs' property itself did not have to contain specific environmental conditions as long as the zoning decision fit into a larger scheme to protect the environment. See id. On this point, the court reasoned that the designation of the plaintiffs' property as "environmentally sensitive" was a valid exercise of the Township's authority pursuant to the Township's plan to preserve "undisturbed, contiguous, forested uplands, of which plaintiffs' property is an integral and connected part," to protect a surrounding "sensitive coastal ecosystem." See id. at 1084-85.

The court further stated that the plaintiffs should first have sought administrative relief by way of a zoning variance application before challenging that the ordinances, as applied to their property, constituted a taking without just compensation. See id. at 1095-96. Finally, the court indicated that, if the owners' variance application is denied, they can then pursue their inverse condemnation claims. See id. at 1096. Notwithstanding the court's emphasis as to the exhaustion of administrative remedies, the plaintiffs noted an administrative action would be futile as they would be unable to establish the positive or negative criteria necessary to obtain relief from the inclusion of their property in an Environmental Conservation District.

Conclusion

Accordingly, while the New Jersey Supreme Court's decision strengthened the ability of municipalities to rezone land it deems to be "environmentally sensitive," the court left open the possibility that such decisions can still face judicial scrutiny. Challenges to such zoning classifications, however, will be difficult given the Supreme Court's acknowledgement that even though this property may not have contained environmentally sensitive characteristics, it served to act as a buffer between other environmentally sensitive areas.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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