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Borough of Kenilworth v. Department of Transportation

Decided: July 7, 1977.


Lora, Crane and Michels.

Per Curiam

Plaintiff Borough of Kenilworth instituted this action against defendant New Jersey Department of Transportation pursuant to the Environmental Rights Act, N.J.S.A. 2A:35A-1 et seq. , seeking temporary and permanent injunctive relief against the widening of the Garden State Parkway. Kenilworth principally alleged that the Department of Transportation had failed to obtain a stream encroachment permit from the Department of Environmental Protection for the relocation of a segment of a man-made stream (known as stream 10-24) which lies within the Parkway right-of-way in Kenilworth. Kenilworth also alleged that the Department of Transportation, in carrying out the program, (1) was cutting down and destroying trees which will result in a substantial increase in noise and air pollution and the flow of surface water, and (2) failed to use reasonable methods to control rodents and other pests, as a result of which the residents will become subject to rodent infestation and concomitant health hazards.

The Chancery Division temporarily restrained the construction of the Parkway throughout the entire Kenilworth segment of the 12-mile project. The Department of Transportation's subsequent motion to dissolve the temporary restraints was denied, a preliminary injunction was issued and, although the court retained jurisdiction, it remitted the matter to the Department of Environmental Protection for a hearing on the Department of Transportation's application to relocate stream 10-24 in Kenilworth*fn1 and "for consideration

of the destruction of trees, alleged rodent infestation and all other facts relevant to the prevention or minimization of pollution, impairment and destruction of the environment," in accordance with the provisions of N.J.S.A. 2A:35A-8.

Defendant moved for leave to appeal to this court in order to seek a reversal of the order of the Chancery Division and dismissal of Kenilworth's complaint. We granted the motion and accelerated the appeal on our own motion. We dissolved the preliminary injunction except with respect to the immediate area of the stream which covered a distance of approximately 315 feet. Both parties unsuccessfully moved for leave to appeal to the Supreme Court.

Kenilworth argues on this appeal that although the issue involving stream relocation was rendered moot by a decision to leave the stream in the same location and condition, there are two other claims arising under the Environmental Rights Act which warrant a remand for further proceedings. Specifically, Kenilworth contends for the first time on appeal that N.J.S.A. 2A:35A-4(a) authorizes it to seek enforcement of Executive Order No. 53 issued by Governor William T. Cahill on October 5, 1973, which requires state agencies to file environmental impact statements with the Department of Environmental Protection for certain major construction projects. Kenilworth also contends that N.J.S.A. 2A:35A-4(b) entitles it to a plenary hearing with respect to a variety of alleged possible consequences of the project, including increased noise and air pollution, rodent infestation, and the aggravation of a pre-existing drainage problem.*fn2 Although improperly raised, we will address these contentions.

The Department of Transportation contends, among other grounds, that the widening project is not subject to Executive Order No. 53. Furthermore, it claims that in view of the

comprehensive environmental review of the project conducted pursuant to the National Environmental Policy Act, 42 U.S.C.A. § 4321 et seq. , Kenilworth cannot maintain an action alleging unspecified environmental harm under N.J.S.A. 2A:35A-4(b).

The essential facts are not in dispute. The affidavits and exhibits reveal that the Parkway widening project had its genesis sometime prior to 1972. Originally it was to be funded by the State, but the bond referendum authorizing the borrowing of funds for that purpose was defeated by the voters of New Jersey. The State then sought and obtained federal funding. Preliminary studies of the project's environmental impact were conducted as early as 1974. Subsequently, in April 1975, environmental review procedures for considering social, economic and environmental effects of highway projects were published as the New Jersey Action Plan. This plan was developed by the Department of Transportation pursuant to the Federal Aid -- Highway Act of 1970, 23 U.S.C.A. § 109(h), and regulations promulgated thereunder by the Secretary of Transportation, 23 C.F.R. 795 (1977).

Pursuant to the New Jersey Action Plan, notice of intention to widen the Parkway was published on June 2, 1975. The notice solicited public comment and stated that any suggestions would be considered by the Federal Highway Division Administrator in connection with his classification of the project as a major or nonmajor federal action. On June 17, 1975 the New Jersey Department of Community Affairs, acting as a clearinghouse in accordance with the New Jersey Action Plan and United States Office of Management and Budget Circular A-95, informed the Department of Transportation that the project notification had been circulated to the appropriate state agencies and that none had voiced any objection.

In August 1975 the project was classified as a Level III project by the Department of Transportation. This cleared the path for seeking final approval of the project as

a nonmajor federal action. A formal request for approval of the project as a nonmajor federal action was made in November 1975. Approval was received on December 5, 1975 and a notice of such approval was published thereafter. The final plan called for 70% federal funding and 30% state funding. The Department of Transportation maintained operational control over the job and completion was targeted for the summer of 1979. As a "non-major federal action" no environmental impact statement or negative declaration (a declaration that the proposed project will have no significant impact upon the environment) was required pursuant to § 102(2) (C) of the national Environmental Policy Act, 42 U.S.C.A. § 4332(2) (C).

On March 3, 1976 officials of the Department of Transportation discussed possible drainage, air pollution and noise pollution problems with officials of Kenilworth. On April 19, 1976 Kenilworth's attorney advised borough officials to inform the Department of Transportation that the proposed widening of the Parkway would have a deleterious effect on already poor drainage in the area of stream 10-24. Another meeting was held on July 6, 1976, at which time officials of Kenilworth were shown a drainage study completed by a Department of Transportation consultant in which the increased runoff from the widening was estimated at only 0.4%. Air and noise pollution were also discussed. Assistant Commissioner Goodkind of the Department of Transportation told Kenilworth that they would have the air studies reviewed and an opinion given as to what emission levels would be expected in Kenilworth. Also, plan sheets from the noise report showing ambient and predicted noise levels were given to the borough engineer. Since these sheets showed acceptable noise levels, no noise attenuators were proposed. The mayor requested that he be notified when the Department of Transportation received final approval of the noise report from the Federal Highway Administration.

On August 12, 1976 the Commissioner of Transportation wrote to the mayor with respect to the drainage problem. The

closing paragraph of that letter stated: "After our studies are completed, the Department will notify you of the results. Please be assured that every effort will be made to relieve Kenilworth's flooding problems." Kenilworth's mayor responded by letter dated August 23, 1976 in which his reliance on the Commissioner's statements appears. No further information was provided Kenilworth by the Commissioner. However, notwithstanding the Commissioner's failure to furnish Kenilworth with any further information, Kenilworth did not institute this action until April 28, 1977 -- eight months after the Commissioner wrote to the mayor. In the ...

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