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Loveladies Property Owners Ass''n. Inc. v. Raab

Decided: November 10, 1975.

LOVELADIES PROPERTY OWNERS ASS'N., INC., A CORPORATION OF THE STATE OF NEW JERSEY, JOINT COUNCIL OF TAXPAYERS ASSOCIATIONS OF SOUTHERN OCEAN COUNTY, INC., A CORPORATION OF THE STATE OF NEW JERSEY AND LONG BEACH ISLAND CONSERVATION SOCIETY, A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFFS-APPELLANTS,
v.
MAX RAAB AND DAVID BARDIN, COMMISSIONER OF ENVIRONMENTAL PROTECTION, STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS



Carton, Crahay and Handler. The opinion of the court was delivered by Handler, J.A.D.

Handler

[137 NJSuper Page 180] Plaintiffs Loveladies Property Owners Ass'n, Inc., the Joint Council of Taxpayers Associations of Southern Ocean County, Inc. and the Long Beach Island Conservation Society brought this action seeking a declaration that certain lands owned by defendant Max Raab in Long Beach Township were wetlands under the Wetlands Act of 1970, N.J.S.A. 13:9A-1 et seq. , and an injunction restraining Raab from depositing fill on those lands. The action also sought an order compelling defendant Commissioner

of the Department of Environmental Protection to require Raab to cease all fill operations and to restore his lands to their previous condition. Both defendants filed alternative motions for dismissal or summary judgment.

The essential facts were that the lands owned by Raab were designated wetlands on a map properly filed by the Commissioner on September 21, 1972. Between October 26, and December 5, 1972 Raab filled part of those wetlands with clean fill. (While plaintiffs originally contended that these filling operations continued into January 1973, they were unable to prove this or create a genuine issue of fact as to the date upon which the filling operation was completed or terminated.) On January 10, 1973 the Commissioner promulgated an order which requires a permit for all filling on the land in question.

The court adopted the position of the Commissioner as to the interpretation of the Wetlands Act of 1970, particularly that the promulgation of an appropriate wetlands order is a predicate or precondition to the requirement for a permit. Accordingly, summary judgment was granted in favor of defendants.

The Wetlands Act of 1970 became effective on November 5, 1970. The act directs the Commissioner of the Department of Environmental Protection to make an inventory and map all tidal wetlands within New Jersey. N.J.S.A. 13:9A-1(b). The law further provides that:

The commissioner may from time to time * * * adopt, amend, modify or repeal orders regulating, restricting or prohibiting, dredging, filling, removing or otherwise altering, or polluting, coastal wetlands. [ N.J.S.A. 13:9A-2]

There is a prohibition against engaging in a "regulated activity" upon any wetland without first obtaining a permit. N.J.S.A. 13:9A-4(b). The term "regulated activity" is defined to include:

* * * draining, dredging, excavation or removal of soil, mud, sand, gravel, aggregate of any kind or depositing or dumping therein any rubbish or similar material or discharging therein liquid wastes, either directly or otherwise, and the erection of structures, drivings of pilings, or placing of obstructions, whether or not changing the tidal ebb and flow. [ N.J.S.A. 13:9A-4(a)]

Plaintiffs' position, as we understand it, is that no kind of "regulated activity" could be conducted with respect to wetlands without first obtaining a permit, and that the necessity for such a permit is not obviated by the failure of the Commissioner to have filed a wetlands map or promulgate a proscriptive order under the act. A "regulated activity," as plaintiffs argue, is one which requires a permit pursuant to N.J.S.A. 13:9A-4 and would cover any conceivable action touching or affecting wetlands, including "filling"; it would be any activity intended by the Legislature to be governed by the act, regardless of whether the particular activity is one specifically itemized as a regulated activity in N.J.S.A. 13:9A-4 or alluded to more generally under N.J.S.A. 13:9A-2, or elsewhere in the act. In effect, according to plaintiffs, the permit requirement as a precondition for any such activities is obligatory under the statute and not the subject of administrative discretion otherwise contemplated by the act.

An inescapable implication of this thesis is that N.J.S.A. 13:9A-2, which provides for discretionary action and regulation by the Commissioner as to certain kinds of activities, which are rather broadly set forth, is superfluous. This is so because there would be no activities within the expansive reach of N.J.S.A. 13:9A-2 which would not also be covered by the enumeration of regulated activities under the non-discretionary provisions of N.J.S.A. 13:9A-4.

There is a more logical and sensible construction of the statute. N.J.S.A. 13:9A-4 was intended to prescribe the mode of regulation or permit procedure which is to be followed in cases ...


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