Jacobs, Eastwood and Jayne. The opinion of the court was delivered by Eastwood, J.A.D.
This is an appeal from the judgment of the Division of Water Policy and Supply of the State Department of Conservation and Economic Development denying appellant's application for a permit to construct a building over a small stream with a supporting pier in the middle of the stream.
The appellant is the owner of a tract of land situate in the City of Plainfield and the Borough of North Plainfield, through which flows a non-tidal stream known as "Green Brook" which forms the boundary line between the aforementioned municipalities. Desiring to construct a one-story building over Green Brook, appellant filed the following application
with the Department of Conservation and Economic Development, Water Policy and Supply Division (hereinafter referred to as the "Council"):
"In compliance with the provisions of Title 58:1-26 of the Revised Statutes RONADE ASSOCIATES, INC. 26 Journal Square, Jersey City, N.J. hereby makes application for the approval of plans and for the issuance of a permit for the construction of a Bridge supporting a Store Building in, along or across Green Brook at a point Watchung Avenue Plainfield * * * in accordance with drawings and other data filed with this application and made part hereof. * * *"
A public hearing was held and evidence was proffered by the proponents and the objectors. According to the plans submitted with the appellant's application, to support its structure, the proposal contemplated the construction of a central pier in the bed of the stream. The only question for the Council's determination was whether the proposal as submitted by appellant should be granted.
The Borough of North Plainfield and the City of Plainfield opposed the granting of the requested permit on the grounds of alleged interference with the flow of the stream under flood conditions, danger arising from the impounding of the waters by such a structure and the resulting damages therefrom, and conflict with proposed plans of the City of Plainfield to widen Watchung Avenue and construct an elevated through-way over Green Brook.
The Council denied appellant's application and judgment was entered determining that:
"* * * from the testimony presented before this Council and in the opinion of said Council, that the granting of the permit sought aforesaid would be contrary to public interest, and that the erection of such a structure over a stream of the magnitude of Green Brook in the developed areas of Plainfield and North Plainfield, New Jersey, would increase danger from waters impounded or likely to be impounded or affected by such structure and would create a hazard to such municipalities and the public and property owners at large in said municipalities in case of flood as aforesaid; * * *"
The appellant contends that the Council's statutory authority under R.S. 58:1-26 is merely regulatory and it has unlawfully
extended its jurisdiction by prohibiting the construction of a building over Green Brook; that the bed of the stream above tidewater is within its ownership and the Council's judgment depriving it of the use of its land without just compensation is in violation of Article I, Paragraphs 1 and 20, of the Constitution of New Jersey and the Fourteenth Amendment to the ...