Pinelands Commission Watches As Wittenberg Wages War on CMP

“Queen of the Pinelands” Works for King Christie, Not Commission

The Executive Director of the Pinelands Commission, Nancy Wittenberg, has engaged in a pattern of conduct that makes a mockery of the Pinelands Commission, ignores the concerns of the public, and seriously impairs the integrity of the Comprehensive Management Plan (CMP).

This conduct includes:

• reversing a prior staff finding, backed by the Commission, that the South Jersey Gas (SJG) pipeline was inconsistent with the forest area standards of the CMP;
• determining that a slightly revised SJG application should be considered “private development” and issued a “Certificate of Filing” under the CMP, bypassing the Commission and public review procedures;
• misleading and manipulating the public and the Commission regarding various critical regulatory interpretations and alternatives and powers of the Commission;
• providing undue and improper influence to SJG and engaging in extensive private email conversations with lawyers from SJG, including allowing SJG lawyers to review, and edit regulatory documents – including her own recommendations to the Commission and the Commission’s response to public comments – before those documents were shared with the Commission;
• acting unilaterally and taking policy and regulatory positions on behalf of the Commission, without the knowledge or approval of the Commission or awareness of the public.

This pattern of conduct was repeated in the NJ Natural Gas pipeline controversy.

The Philadelphia Inquirer understands all that and yesterday wrote:

In August, Nancy Wittenberg, the commission’s executive director, issued a “certificate of filing” declaring that “the proposed gas main is consistent with the permitted use standards of the Comprehensive Management Plan,” effectively freeing it from further commission review.

Several members of the commission board have said they disagreed with Wittenberg’s determination.

Pinelands Commission Chairman Mark Lohbauer, an attorney, said after Wednesday’s BPU vote that while South Jersey Gas’ strategy for bypassing the commission appeared to be legal, “it raises the issue of whether the bylaws need to be revised.”   

“I know several commissioners feel they have a right to insert themselves in a decision of this magnitude,”  Lohbauer said. “This is not a question of someone asking to put in a driveway.”   

So, in light of this controversy, let’s establish a few fundamental propositions to set the basic parameters of this post:

1. Under the Pinelands Protection Act, the Pinelands Commisison “appoints” the Executive Director, who “serves at the pleasure of” (i.e. works for) the Pinelands Commission:

13:18A-5. Members; appointment; qualifications; terms of office; vacancies; removal; oath; reimbursement of expenses; vote necessary; chairman; executive director; veto by Governor

[a. – f.]

g. The Governor shall designate one of the members of the commission as chairman. The commission shall appoint an executive director, who shall be the chief administrative officer thereof. The executive director shall serve at the pleasure of the commission, and shall be a person qualified by training and experience to perform the duties of his (sic) office.

If the Commission can fire Executive Director Wittenberg for any reason (other than a discriminatory or related clearly improper purpose), then surely they can tell her what to do.

2. Under the Pinelands Protection Act, the Pinelands Commission is delegated the authority to propose, adopt, and repeal rules and regulations that have the force and effect of law.

13:18A-6. Powers

The Pinelands Commission shall have the following powers:

[a. – i.]

j. To prepare, promulgate, adopt, amend or repeal, pursuant to the provisions of the “Administrative Procedure Act,”P.L.l968, c. 410 (C. 52:14B-1 et seq.), such rules and regulations as are necessary in order to implement the provisions of this act; 

If the Commission can promulgate regulations, then certainly they can interpret and apply their own regulations.

The power to adopt and repeal regulations implicitly includes the power to declare a temporary moratorium on the application and enforcement of those regulations pending their update to provide adequate safeguards to meet the standards in the Pinelands Act and the CMP regulations.

3. Under the Pinelands Protection Act, the Pinelands commission is delegated the authority to adopt “bylaws” governing the operation of the Commission and its staff.

13:18A-6. Powers

a. To adopt and from time to time amend and repeal suitable by-laws for the management of its affairs;

If the Commission has the power to “manage its affairs”, then surely they can require the Executive Director to seek approval for any actions related to matters of regulation or policy of the Commission BEFORE she takes those actions.

The power to “manage the affairs of the Commission surely includes the power to review applications and apply the regulations to proposed applications, such as interpreting the regulations and applying them to a specific proposed development regulated under the CMP.

If the Commission feels that the “private development” review process was designed for, as Chairman Lohbauer suggest, a minor activity like a private driveway, then the Commission can interpret its own regulations and direct Wittenberg to apply those regulations.

If the Commission feels that a SJG seeking a Memorandum of Agreement is not appropriate policy or the correct regulatory review path, then the Commission can direct Wittenberg to apply the CMP rules for seeking a “waiver of strict compliance”.

Those are policy and regulatory decisions that are to be made by the Commission, not ED Wittenberg.

 4. The Pinelands Protection Act does NOT authorize the Commission to make a distinction between “public development” and “private development” and to create radically different review and approval procedures for “private development” versus “public development” in the CMP.

The term “private development” is not used in the Act and the concept of a distinction between private versus public development is not remotely mentioned or suggested in the Act.

5. The Pinelands Protection Act does NOT authorize the Commission to provide a “streamlined” review process or to delegate its review authority by using a “Certificate of Filing” mechanism.

The term “certificate of filing”, like “private development” is not used in the Act and the concept of streamlined review process for “private development” via a “certificate of filing” is nowhere in the Act.

6. The Pinelands Protection Act does NOT authorize the Commission to delegate and extinguish their power to review and approve or deny via voting on a development application,

The Pinelands Protection Act delegates certain powers to the Commission. The Act requires the Pinelands Commission to review and approve regulated development, subject to the Administrative Procedures Act and basic due process procedures such as public notice, public comment, and public hearings.

The legal concept of the delegation doctrine strictly limits the Commission’s ability to sub-delegate the legislative powers delegated by the Legislature to the Commission in the Act.

Quite simply, the Commission may not delegate their power to review and approve and VOTE on a regulated development to the Executive Director.

7. The Pinelands Protection Act done NOT authorize the Commission to eliminate public hearing and public comment procedures for proposed development regulated under the Act.  

Accordingly, the entire South Jersey Gas and NJ Natural Gas pipeline review process, i.e. the “private  development” and “Certificate of Filing” scheme is sham –

There is no legal authority in the Pinelands Protection Act for it and it is all made up whole cloth.

It doesn’t matter if a “Certificate of Filing” process is included in the CMP – if that process is not authorized by the Act, the CMP’s inclusion of it is ultra vires and does not authorize it.

I hope the Commissioners and competent lawyers are reading this post.