I always said that one of the things I am proud of is that I don’t think that there is any other piece of legislation, during my time as governor, which is unique in the sense that it would not have been passed if I didn’t take an interest in it. The Pinelands was on nobody’s particular political agenda. It was on no political party’s agenda.
Brendan T. Byrne, at “The Pinelands Protection Act: A Discussion by Participants in the Process,” October 15, 1987 at the Eagleton Institute of Politics, Rutgers University
Of the various accomplishments of the Byrne Administration, the preservation of the Pinelands is perhaps the single accomplishment that would not have happened if Brendan Byrne had not been governor. The preservation of the New Jersey Pinelands also was his most long-lasting achievement as governor by permanently changing the future development pattern of southern New Jersey. The strong land-use controls imposed by the Pinelands legislation limited the existing sprawl that had destroyed most of the farms, open space and other resources of the northeastern part of the State that Byrne had enjoyed as a child growing up in Essex County. It also complemented the pro-development Byrne initiative spurred by the approval of casino gambling in Atlantic City by pushing much of the development resulting from the growth of Atlantic City to the coastal region surrounding the City, thus reducing the loss of wetlands and forests to the west.
The Pinelands initiative was driven by the Governor’s personal commitment. He overcame not only opposition from powerful outside interests, but often from members of his own Cabinet and staff, some of whom questioned whether Pinelands preservation was a politically realistic goal. Unlike most other initiatives, such as the enactment of the State income tax and the commencement of casino gambling in Atlantic City, the protection of the Pinelands probably would not have been implemented–or at least not in sufficient time to insure preservation of its most critical resources–except for the personal intervention and leadership of Governor Byrne.
The New Jersey Pinelands covers over a million acres of New Jersey. pine oak forests, streams and rivers, spacious farms, crossroad hamlets, and small towns stretched across southern New Jersey. The Cohansey aquifer in the Pinelands contains over 17 trillion gallons of pure water, enough to cover the entire State of New Jersey with ten feet of water. This underground reservoir feeds most the area’s streams, supports its agricultural industry, maintains the ecological balance of coastal estuaries, and provides drinking water for hundreds of thousands of people.
While the sandy soil and high water tables that make much of the land unusable for many farm crops, the soil and bogs of the region are excellent for the growing of cranberries and blueberries. New Jersey’s cranberry production, which ranks third highest among all states, is carried out almost exclusively in the center of the Pinelands, which is now protected as the Preservation Area of the Pinelands Comprehensive Management Plan. Cranberry farming is directly tied to the water supply, depending on bogs that must be periodically flooded for cultivation and harvest. The large, cultivated blueberry was first developed in the Pinelands by Elizabeth White, and the value of New Jersey’s yearly blueberry crop now ranks second in the nation.
In the country’s early years it had been a place where fortunes were made from lumber, bog iron, charcoal and glass. During the Revolutionary War, bog iron from the Pinelands–created from the interaction of decaying vegetation and iron rich clays found in the streams and bogs–was used to produce cannon balls for George Washington’s Continental Army. But the iron industry disappeared in the early years of the nineteenth century as the extensive coal deposits of Pennsylvania were mined and exported by rail, offering cheaper and higher quality coal to that of the bog iron found in the pinelands. The economic activity that remained was primarily based on farming and crafts. The forests fostered, for example, a small community of respected woodcarvers and carpenters; indeed, the desk on which Thomas Jefferson wrote the Declaration of Independence was made by Benjamin Randolph of Speedwell. As the state’s major roads and railroads bypassed the area, the “Pine Barrens” gradually became known as a remote part of New Jersey with scant industry but abounding in local legends. Outsiders viewed those who chose to reside in the forests as hermits, or even strange to the point of the supernatural; the Pinelands, for example, was the locale for the legend of the “Jersey Devil”, a horned creature purportedly born to a local woman. In 1913, “The Pineys”, a study by Elizabeth Kite, a teacher at the Vineland Training School, described incest and intermarriage contributing to widespread physical and mental handicaps, provoking a public outcry that led to a personal inspection by New Jersey Governor James T. Fielder. After completing his tour, Governor Fielder reported:
I have been shocked by the conditions I have found. Evidently these people are a serious menace to the State of New Jersey because they produce so many persons that inevitably become public charges. They have inbred, and led lawless and scandalous lives, till they have become a race of imbeciles, criminals and defectives.
In the 1960s and 1970s, the future of the Pinelands received occasional interest from media and local residents. Much of this interest, however, was directed at the potential development of the forests for housing. The historic isolation of the region was threatened as postwar suburban sprawl brought pressure from the fast-growing areas to the west and east. Developers sought the relatively cheap land in the pines to accommodate demand serving the Philadelphia metro region; on the eastern fringes, major housing subdivisions and planned communities had begun to cut down the forests to accommodate senior citizens and others attracted by the coastal ambiance and comparatively low-cost housing offered in giant retirement communities and other developments.
In 1967, John McPhee, who would become one of the nation’s most prominent nonfiction authors, published his fourth book, The Pine Barrens, that reviewed the region’s unique natural resources, ecology and history. Much of the book had previously been published earlier as a series of articles by McPhee in The New Yorker magazine. McPhee noted the then current proposals for the Pinelands, including grand development projects, such as a combined jetport, industrial park and a city of a quarter million that had been proposed in a 1964 report commissioned by the Pinelands Regional Planning Board, a body created under state law comprised of representatives appointed by the governing bodies of Burlington and Ocean Counties. Despite well-meaning proposals by the New Jersey Audubon Society and other conservation advocates to preserve critical areas of the pines, none of these organizations or individuals were able to mobilize significant political support and indeed faced strong opposition from the great majority of local officials, landowners and real estate interests. McPhee thus concluded his book expressing a high degree of pessimism:
“Given the futilities of the debate, given the sort of attention that is ordinarily paid to plans put forth by conservationists, and given the great numbers and the crossed purposes of all the big and little powers that would have to work together to accomplish anything on a major scale in the pines, it would appear that the Pine Barrens are not very likely to be the subject of dramatic decrees or acts of legislation. They seem to be headed slowly toward extinction.”
Governor Byrne has cited his relationship with McPhee, which began with knowing his brother as a classmate at both Princeton and Harvard Law School, as a key factor in his taking up the challenge to disprove McPhee’s prediction that the Pinelands was destined to be carved up:
I also think that if there’s one person without whom there wouldn’t be a Pinelands Act it would have to be John McPhee. I got to know John because his brother was in my class in both college and law school. And I started reading his stuff. When I got to be Governor, John and I were part of a tennis group that played on the next court from Scott McVay’s court in Princeton. When we finished playing tennis, we would discuss whatever topics seemed appropriate. I read his book. Certainly, if I had not read The Pine Barrens by John McPhee, I would not have had the kind of interest in the Pinelands that I developed…
In the years after The Pine Barrens was published in 1967, McPhee’s pessimism appeared fully justified. With northern and central New Jersey increasingly densely populated and available real estate soaring in price, developers began to look to the pine forests as potential sites for large-scale development at comparatively affordable costs. In Ocean County, the number of homes approved for construction soared from 4,140 in 1970 to 14,700 by 1974. One of the largest developers, Leisure Technology Northeast, Inc., had constructed its first development in the Pinelands in 1963, had built 4,473 housing units by 1974 and announced plans to construct 15,000 total units.
The region’s development potential, which historically had been restricted by limited transportation access, also was improved by new highways and roads, with the prospect for further expansion as new proposed projects were promoted. In 1972, the New Jersey Jersey Legislature and Governor William Cahill approved the $360 million plan of the New Jersey Turnpike Authority to construct a 36-mile-long, four-lane toll expressway from the Garden State Parkway in Toms River northwest to the New Jersey Turnpike in South Brunswick.The proposed Alfred E. Driscoll Expressway, named after the governor who opened the mainline New Jersey Turnpike, was scheduled for completion by 1976, and was expected to carry approximately 40,000 vehicles per day. The Expressway was expected to spur residential, commercial and light industrial growth, taking advantage of generally positive attitudes of county and municipal government officials toward encouraging development through their planning and zoning policies and regulations.
But the attention given to the Pines by McPhee’s writings would ultimately result in public policies to curtail the planned developments. As Randall Rothenberg wrote in the New York Times Magazine in 1985, McPhee’s “celebration of this last bastion of rustic splendor amid the growing eastern megalopolis helped lead to the federal and state governments’ decision to protect the Pinelands from destructive overdevelopment.”
In January of 1972 the Legislature created the Pinelands Environmental Council through a bill sponsored by Senator Barry T. Parker, a Republican of Burlington County. The legislation was largely designed to satisfy the wishes of county officials and local interests in the Pinelands, who were generally opposed to intervention by the State government or to any significant regulation of privately-held property. The Council was comprised of fifteen members, seven from Burlington County, seven from Ocean County, and the Commissioner of the New Jersey Department of Environmental.Protection. The first executive director was Fred C. Norcross Jr., a former Burlington County Freeholder. Garfield DeMarco, chairman of the Council, was one the largest landholders in the Pinelands who owned extensive cranberry bogs; he also was a leading Republican activist in Burlington County, who would serve as chairman of the County Republican Committee and was a long-time behind-the-scenes power in County politics.
Under the legislation, the Council was directed to create a master plan for the region, but it was given little authority to implement the plan apart from seeking voluntary cooperation of developers. While it could delay the construction for 90 days of controversial development projects, the projects were allowed to proceed after the expiration of the 90-day period. The objectives of the Council primarily appeared to be focused on protecting the economic interests of both existing landowners and farmers, who were concerned over the impact of development on the region’s water quality and water tables essential to cranberry farming, and those of developers and real estate speculators as development proceeded. Thus, the Council’s chairman, Garfield DeMarco, was quoted at the time as saying: “The state realizes it can’t keep this area frozen from development forever. Therefore, it is seeing to it that the underground water table and certain significantly important environmental areas in the region are protected.”
The Council’s master plan for the region was completed in 1975. The plan allowed for new development of the Pinelands to accommodate 400,000 people. Its release provoked sharp criticism from both builders unhappy with any restrictions on development and environmentalists opposing the scope of planned development. The Council began to work on a new master plan for the area, but abandoned its work after Governor Byrne intervened, calling for the Council’s abolition and the initiation of a new planning process that would establish conseravation of the region’s unique resoures as its principal goal.
While the Governor gave his direction to preserve the Pinelands, he initially faced a staff who lacked much knowledge about the region and who also privately questioned whether the formidable political fight was worth the effort, particularly when the Governor’s standing in public opinion polls was at historic lows as a result of the controversy over the enactment of the income tax as part of the school finance reform package. As John Degnan, who served as the Governor’s Executive Secretary and later as Attorney General, recalled:
I remember…that some time in 1976 the Governor told us at one of our Monday morning breakfasts that the Pinelands would be the next issue. I had never heard of the Pinelands when I grew up. And we all went out with books. Don [Linky] found a copy of John McPhee’s book and we educated ourselves on what the Pine Barrens was. And we figured we were off on another war.
In his Annual Message to the Legislature delivered in January 1977, Governor Byrne set forth his intention to take action to preserve the Pinelands. On May 28, 1977, just days before he won the Democratic gubernatorial primary over seven opponents seeking the nomination, the Governor issued Executive Order 56 establishing the “Pinelands Review Committee”, a body comprised of designated State Cabinet officers and private persons appointed by the Governor. Among other things, the Committee was given responsibility for delineating the geographic boundaries of the Pinelands and developing a plan within one year from its creation that would have as its primary goals “the preservation of the unique environmental resources of the Pinelands” and the “discouragement of scattered and piecemeal development in open space areas.” The Committee also was charged with holding hearings to solicit input from elected officials and members of the public on the options for the proposed plan.
During his 1977 re-election campaign, despite misgivings of Democrats in the region who feared that his Pinelands position would hurt the Party’s legislative and local candidates in the November election, he continued to argue for strong measures to control development. After his surprising re-election, he was able to cite the election results to pressure legislators to back his proposed legislation. Harold Hodes, the Governor’s Chief of Staff, later recalled the political impact of the election in dealing with the reluctant Democratic legislators from the region who asked that he reconsider his Pinelands effort:
The other thing is everybody knew where Byrne stood in ’77. As Byrne told [Senator John] Russo, [Assemblyman John Paul] Doyle, [Assemblyman Martin] Herman, and [Assemblyman Donald] Stewart that morning: ‘I carried your districts. I won your districts. And this is what the people in your district want. And you are only here because of the developers and whatever else’.
But securing legislative support for Pinelands preservation was still an extremely difficult task. And, like the Governor’s staff, legislators from outside the region were unfamiliar with the area and the reasons supporting such an extraordinary intrusion by the State government. As Bergen County Assemblyman and Democratic Majority Leader Albert Burstein recalled years later:
And the Pinelands, which I think–and the Governor says today–is probably his major achievement, was something that was not easy to get through. In the setting of the times, when you consider you were dealing with about twenty percent of the land mass of the state of New Jersey, to set that aside as being restricted with respect to future development was a major, major achievement. And it took a lot of doing. The South Jersey represenatives, whether they be Republican or Democrat, were almost uniformly against it. So with several others, being from the cliff-dwelling North Jersey area, I wanted to get a feel for of what all that was about. Several of us arranged a trip, and took a helicopter ride, looking over the expanse of the target area for preservation.
The Governor’s public statements on the Pinelands also sparked action in the Congress, with competing bills introduced to encourage conservation or to protect the role of county and local governments in decisions related to the region’s development. In October 1977, Congressman Jim Florio (D-Camden), who had unsuccessfully run against Governor Byrne for the Democratic gubernatorial nomination in the primary election in June 1977, introduced a bill to authorize the creation of “greenline parks,” a system for conservation in areas where there was mixed private and public ownership. His bill required states to create “land management commissions” that would regulate land use and control development in the designated area according to a master plan. Once this plan was in place, federal aid would be available for the area. The Florio bill specified 970,000 acres in the Pinelands as automatically becoming the first greenline park, known as the Pine Barrens National Ecological Reserve. The bill also authorized $50 million in federal money to purchase land.
County and local government input in the region was given stronger protection in a bill sponsored by Republican Congressman Edwin B. Forsythe of Burlington County and Democratic Congressman William J. Hughes of Atlantic County. The Forsythe-Hughes alternative called for the creation of a central federal wildlife refuge in the core of the Pinelands. In the remainder of the region, separate Pinelands agencies would be created in each of 41 municipalities affected by the legislation.
Congressman Florio criticized the Forsythe-Hughes plan for relying too heavily on “uncoordinated counties and municipalities” and for a failure “to provide for area-wide planning.” In turn, Forsythe criticized the Florio bill for “sweeping authority provided either to the management commission created by the state, or, failing that creation, to the United States Secretary of the Interior.” He claimed the powers of sixty three municipalities would be usurped by the commission. By May 1978, the three Congressmen reached a compromise that built on common elements of their proposals. But, neither bill made it out of committee.
A third bill, introduced jointly in the Senate by Republican Senator Clifford P. Case and Democrat Harrison A. Williams Jr., incorporated elements of the House bills, along with other provisions resulting from input from Governor Byrne’s Washington office, which served as liaison from the Administration to the State’s Congressional delegation. The Senate bill authorized the creation of “national reserves” for the preservation of areas that, according to Senator Case, “are too big, too complex, too valuable, and too interwoven with the fabric of existing communities to be protected by the Federal Government alone or by any existing system of parks, recreation areas or preserves.” In the first stage, “national reserve planning areas” would be created, with the Pinelands expressly identified as the first region to be so designated. The State would then have two years to form a commission in order to develop a plan for conservation for that area. The commission was to be composed of fifteen members, seven appointed by the Governor, seven local representatives, and one appointed by the Secretary of the Interior. After the plan received approval from the Department of the Interior, the area would become a “national reserve,” with federal money available to acquire land. The bill authorized $26 million for the Pinelands, $3 million for planning and $23 million for land acquisition. Senators Case and Williams added the bill as an amendment to the National Parks and Recreation Act of 1978 that President Jimmy Carter signed on November 11. The initiative then rested with Governor Byrne to create a commission to devise a master plan for the future of the Pinelands.
To some on the Governor’s staff, the federal legislation complicated, indeed undermined, the Administration’s efforts for State legislation. (See 11/3/78 memo to Governor from Counsel Stewart Pollock and Policy Director Donald Linky). By fixing the composition of the planning entity with an equal number of gubernatorial and county appointees, the federal appointee’s position on preservation could become critical, which could easily shift toward pro-development votes when a conservative Administration controlled the White House, as indeed occurred after the 1980 election when Ronald Reagan defeated Jimmy Carter and appointed a Secretary of the Interior who was widely viewed as opposed to land conservation and environmental protection. There was also skepticism over whether the federal role was worth the limited benefits provided under the Congressional legislation; in fact, only $15 million in federal funds was ever appropriated to assist planning and land acquisition, a fraction of the amount that New Jersey had previously expended and would expend in planning and land purchases.
On February 8, 1979, the Governor signed Executive Order 71 that established the Pinelands Planning Commission as a successor body to the Pinelands Review Committee. The planning entity was also intended to meet the requirements of the federal National Parks and Recreation Act of 1978 to qualify for potential federal aid for planning and land acquisition. This Executive Order also imposed a moratorium on the approval of pending applications for development before State agencies, an unprecedented exercise of gubernatorial power that provoked strong protests from area legislators, local officials and development interests. The Executive Order stated that the moratorium was necessary to protect against the further loss of open space while the plan was in the process of preparation and review, but it also served the unwritten political purpose of placing intense pressure on the reluctant Legislature to take action on the Governor’s legislative proposal to establish a permanent commission that would have extensive powers to override municipal land-use planning and zoning decisions (See 2-23-79 memo to Governor from Department of Environmental Protection Commissioner Daniel O’Hern). The executive order also sparked a sense of urgency on both sides of the Pinelands debate to take action on the Governor’s proposed legislation before the New Jersey Supreme Court could issue a final decision in the lawsuit that had been promptly filed by builders challenging the Governor’s authority to order the moratorium. Within the Administration, there were serious doubts among the Governor’s key advisers over whether the extraordinary action would be upheld by the courts; among the development community, there were fears that a decision upholding the moratorium could set a precedent to allow similar executive actions to halt development in other areas of the State. the Governor himself was uncertain whether the New Jersey Supreme Court would uphold the decision upon appeal. As the Governor later explained in discussing the executive order:
The other aspect of the Pinelands, which is unique, is the use of the executive order. And it is regarded as unprecedented. Tom Kean used virtually the same executive order once in his administration. But at the time I used it, there was considerable doubt wheteher I had the right to issue so broad an order. As a matter of fact, the case never was decided by the Supreme Court of New Jersey….I know he [Chief Justice Hughes] was anxious not to decide it. I think it’s the only time that the head of one…branch of government actually called upon another branch of government and said, ‘Can’t you get something done with the third branch of government [the Legislature] so the second branch of government [the Judiciary] doesn’t have to rule on what the first branch of government [the Executive] did?
Attorney General John Degnan also has recalled the near-unanimous view among his legal staff that the executive order was unconstitutional:
I think it’s fair to say that everyone in the Attorney General’s office, with the possible exception of [First Assistant Attorney General] Mike Cole, believed that the executive order was unconstitutional. The Governor never asked the Attorney General’s office for an opinion on the executive order. He had strained my ability to write some twisted executive orders before that. And he didn’t want to do that again. But, I think it is fair to say, there was some very strong discussion in the Governor’s office–Dan O’Hern and I and Don [Linky] and other people–on whether we had a chance of passing what I used to call the ‘ha, ha test’, in sustaining the constitutionality of the executive order. I must say I was wrong. I still think there were very grave doubts about the constitutionality of that order. As you all know, the Court never decided it. The Governor was confident the Court was going to sustain that executive order. Sometimes he had a unique insight into the Court, and I really never asked how he acquired it. Whether it was just his legal ability or he had a pipeline, I don’t know.
Despite his misgivings over the legal merits of the executive order, Attorney General Degnan did agree at the Governor’s suggestion to argue the case personally when it reached the Supreme Court:
The Governor asked me to argue it because he thought the Attorney General himself would convey to the Court the special importance of the bill from the executive point of view. I think, probably, that was true. Only four times in four years was I in the Supreme Court. I went and I argued the bill. I clearly expected to have my head handed to me. We were prepared for that. We worked very hard on it and I have never seen such a one-sided oral argument against the home builders. The Court was making it loud and clear that it was not as troubled with the constitutionality of the executive order as we were. My recollection is…that the Legislature had stalled on the bill, and the likelihood that the Court might affirm the extraordinary exercise of executive power brought some additional pressure on the people [in the Legislature], whom you couldn’t convince, on the merits, that the bill might be a better way than the executive order.
On June 21, 1979, the New Jersey General Assembly approved the bill only after extensive debate that prolonged the session until adjournment at 3:12 am. One week later, the Governor signed the bill into law at a ceremony attended by key legislators and also by his wife Jean.
The Pinelands Protection Act authorized the Commission to devise a Comprehensive Management Plan for the 1.1 million acre Pinelands National Reserve.The Commission was originally given until August 8, 1980 to adopt the Plan, but the Legislature extended the time allowed to finish the Protection Area portion by four months. The Plan was thus adopted in two phases. The Preservation Area part was approved by the Commission on August 8, 1980 and took effect on September 23, 1980, following Governor Byrne’s approval. The Protection Area Plan was adopted on November 21, 1980 and became effective under state law on January 14, 1981. This final version also constituted the Comprehensive Management Plan for the entire Pinelands National Reserve. It was approved by Secretary of the Interior Cecil D. Andrus on January 16, 1981 and was sent to Congress for the required 90 day review. The Commission plan and regulations to implemement its objectives were upheld by the Appellate Division of the New Jersey Superior Court in in the case of Orleans Builders & Developers v. Byrne, 186 N.J. Super. 432 (App. Div. 1982),
The boundaries of the Pinelands National Reserve and the Pinelands Area, as defined by the state legislation, differ somewhat. The Reserve, totaling 1.1 million acres, includes land east of the Garden State Parkway and to the south bordering Delaware Bay, which is omitted from the 927,000 acre state Pinelands Area. The two jurisdictions together cover all or parts of 56 municipalities spread across seven counties — Atlantic, Burlington, Camden, Cape May, Cumberland, Gloucester, and Ocean.
The state law makes another important distinction between the remote interior of the Pines and the surrounding portions. Development is to be highly regulated in the 295,000 acre Preservation Area, which encompasses the largest tracts of relatively unbroken forest and most of the economically vital berry industry. The larger surrounding area, known as the Protection Area, contains a mix of valuable environmental features, farmland, hamlets, subdivisions, and towns, making the Commission’s task there more complex.
