SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-672-94T2
CITY OF NEWARK,
Plaintiff-Respondent,
and
THE STATE OF NEW JERSEY,
DEPARTMENT OF ENVIRONMENTAL
PROTECTION,
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 primary issue presented on this appeal is whether a
provision of the Watershed Protection Act (L. l988, c.l63 as
amended by L. l990, c.l9) which places limitations on the
conveyance of watershed property continues to be valid. We have
concluded that the moratorium is still in effect and is a factor to
be considered in valuing watershed land for tax purposes.
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.
DEP was further directed to transmit its
study, upon completion, to the Governor, the
BPU and the Legislature. The Act provided for
exemptions from the moratorium, but only upon
a showing "that there is a compelling public
need for the conveyance of the property, that
the denial of the exemption would result in
extraordinary hardship, or that the sale or
development of the watershed property is
otherwise consistent with the purposes of this
act." Applications for exemptions under the
Moratorium Act were made subject to
consideration by the Review Board, which was
created by the Act, consisting of the
Commissioner of DEP, the Commissioner of the
Department of Community Affairs and the
President of the BPU.
. . . .
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:
For a period of eighteen months commencing on
the effective date of this Act, no
municipality, municipal utilities authority or
public utility shall convey any land utilized
for the purpose of the protection of a public
water supply on the effective date of this
Act. . . .
The DEP undertook preparation of its report in conjunction
with the Cook College, Department of Environmental Resources
(Department). In the Report to Governor Thomas H. Kean, the New
Jersey State Legislature, and the Board of Public Utilities:
Evaluation and Recommendations Concerning Buffer Zones Around
Public Water Supply Reservoirs (December l989), the Department
found that buffer zones around water supply reservoirs provide some
protection for drinking water quality. The Report further urged
application of multi-zone buffers around both water supply
reservoirs and their contributing tributaries to enhance water
quality protection. Report, supra, at i. Also recommended was
further legislation requiring the adoption of regulations
establishing appropriate and effective buffer zones for all
watersheds associated with water supply reservoirs, tributaries and
intake waters. Ibid. Finally, the Department recommended,
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.
In l990, when the eighteen month period referred to in the
l988 Act was about to expire, the Legislature adopted L. l990, c.
l9 § 1, which amended the statute to read in part:
No municipality, municipal utilities authority
or public utility shall convey any land
utilized for the purpose of the protection of
a public water supply prior to the adoption by
the Department of Environmental Protection of
the rules and regulations establishing buffer
zones for all watershed lands associated with
public water supply reservoirs for the purpose
of protecting drinking water quality required
pursuant to the "Watershed Protection Act,"
P.L. ___, c. ___ . . . . (now before the
Legislature as Senate Bill No. 2339 of l990).
The Legislature specifically acknowledged the DEP report in a
statement to a companion bill to the moratorium extension:
The Department of Environmental Protection
recently completed the study evaluating the
effectiveness of establishing buffer zones
around public water supply reservoirs for the
protecting drinking water quality required
pursuant to section 3 of P.L. l988, c. l63.
In its report to the Governor, the Board of
Public Utilities, and the Legislature, the DEP
recommends that the Legislature enact
legislation that would require the department
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.
In ruling on this issue, Judge Pizzuto stated:
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.
It is undisputed that a statute may be made contingent upon
the happening of a future event. State v. Strong Oil Co., Inc.,
433 N.Y.S.2d 345, 348 (Sup. Ct. 1980) (holding that legislation
designed to discourage price gouging by merchants of home heating
oil during periods of "abnormal disruption of the market" did not
automatically terminate at the end of the heating season which the
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.
Generally, a remedial statute will be construed to include
cases within its spirit or reason, although technically outside its
letter, when necessary to effectuate the legislative intent. 82
C.J.S. Statutes, § 388 at 921 (1953). Where the drafters of a
statute did not consider or contemplate a specific situation, a
court should interpret the enactment consonant with the probable
intent of the drafters, had the situation at hand been anticipated.
AMN, Inc. v. South Brunswick Tp. Rent Leveling Bd.,
93 N.J. 518,
525 (1983). In such a situation, the interpreting court should not
rely on "literalisms, technicisms or the so-called formal rules of
interpretation." J.C. Chap. Prop. Owner's Assoc. v. City Council,
55 N.J. 86, 100 (1969). Rather, the court should rely on the
breadth of the objectives of the legislation and the common sense
of the situation, in order to further the legislative purpose.
Ibid; Matlack v. Burlington Cty. Bd. of Chosen Freeholders,
194 N.J. Super. 359, 362 (App. Div.), certif. denied,
99 N.J. 191
(1984).
In addition, with respect to amendatory legislation, courts
will not construe a statute in a manner that will render the
amendments futile and abortive if that result can possibly be
avoided. Evans v. Ross,
57 N.J. Super. 223, 229 (App. Div.),
certif. denied,
31 N.J. 292 (1959). In ascertaining the meaning of
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).
By enacting the 1990 legislation near the expiration of the
eighteen-month moratorium, the Legislature clearly intended the
moratorium to continue. To be sure, the Legislature specifically
referred to legislation then under consideration in the l990
amendment. But a fair reading of the Act indicates that that
reference was only for the purpose of spelling out authorization
pursuant to which the DEP would enact "rules and regulations
establishing buffer zones for all watershed lands." The adoption
of the rules and regulations was the pivotal action on which the
continuing vitality of the moratorium depended.
The Legislature is still wrestling with the problem of
watershed protection. This issue is politically sensitive because
it pits a matter of general concern (protection of watershed land
and the water sources) against both the property rights of
watershed owners and the taxing interests of municipal entities in
which watershed land exists. Thus, the fact that no easy
resolution has occurred is neither a surprise nor a signal that the
moratorium was meant to expire.
The Legislature's objectives remain the same today as they
were when the Watershed Protection Act was conceived. The primary
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).
Hardyston's exhaustion argument is equally unpersuasive.
There is neither legal nor logical support for the notion that, in
order to establish a reduction in value of its property as a result
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.
We turn finally to Hardyston's constitutional arguments.
Because they were not raised below, we need not address these
issues. Nieder v. Royal Indemnity Ins. Co.,
62 N.J. 229, 234
(l973). However, we choose to dispose of them summarily.
Hardyston first claims that the Act is unconstitutionally vague.
Hardyston lacks standing to raise this challenge because Newark is
the entity which is restricted from conveying its land and is thus
the only party with such standing. Even if Hardyston had standing,
the law is not void for vagueness. It expressly proscribes the
unfettered conveyance of watershed land by municipalities,
municipal utilities authorities or public utilities prior to the
adoption of certain rules and regulations by the DEP. That those
rules have not yet been adopted does not render the law vague;
rather, that failure raises a question as to the moratorium's
continued validity, which we have previously addressed.
As to Hardyston's overbreadth argument, we observe that the
overbreadth doctrine is generally restricted to limitations on
First Amendment rights which are not present here. State v. Lee,
96 N.J. 156, 165 (1984); Town Tobacconist v. Kimmelman,
94 N.J. 85
(l983). More importantly, the statute as written does not "extend
too far." Town Tobacconist, supra, 94 N.J. at l25-26. The
Watershed Protection Act does not reach beyond its intended
objective of ensuring the quality of all public drinking water.
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.
Finally, we reject Hardyston's special legislation claim.
Hardyston's suggestion that the Act singles out watershed property
for special tax treatment is plainly wrong. What is involved here
is a government-imposed restriction, contained in a uniform act,
which may be considered in arriving at the true value of property.
This does not constitute special tax treatment within the meaning
of New Jersey State League of Municipalities v. Kimmelman, l
05 N.J. 422 (l987).
Affirmed.
Footnote: 1 20 acres at the North end of Block 20 are not in the watershed.