Matthews, Crane and Antell.
This is an appeal from a determination of the Water Policy and Supply Council (Council) denying the application of plaintiff Michael Deskovick for approval, under N.J.S.A. 58:1-26, of plans for construction of a sanitary landfill on portions of a 13.5-acre tract of land located along the Whippany River in East Hanover Township, Morris County.
On or about November 15, 1974 plaintiff made application to the Council for a stream encroachment permit that would allow him to conduct a landfill operation on the aforementioned premises. A permit was denied by letter dated April 3, 1975. The denial was predicated on the fact that the proposed landfill would result in fill being placed in an area that was prone to inundation by flood waters.
After receipt of the letter denying the permit plaintiff made a timely request for a hearing which was granted. The hearing was held on July 30, 1975 before a member of the Council. Plaintiff presented a written statement and witnesses. East Hanover Township and the East Hanover Environmental Commission, participating as objectors at the hearing, also presented witnesses.
On October 20, 1975 the hearing officer issued her "Report of Hearing and Recommendations." She recommended that plaintiff's application for a permit to use his property as a sanitary landfill operation be denied and, further, that fill be removed from certain areas theretofore filed by plaintiff without the Council's approval. Plaintiff filed exceptions and objections to the report. The full Council adopted the hearing officer's findings of fact, conclusions and recommendations and advised plaintiff accordingly by letter dated January 19, 1976. This appeal followed.
The property which is the subject matter of this action is a 13.5-acre tract of land located on the northerly side of Klinger Road in the Township of East Hanover. A portion of the property is bounded by the Whippany River. The flood elevation of the property, based on historical data compiled by the State, is 176 feet. Portions of the property had previously been filled to as high as elevation 176 feet, without the approval of the Council. Plaintiff's present application seeks permission to fill approximately 3.55 acres heretofore relatively free of fill to elevation 176 feet. Approximately 36,500 cubic yards of material would be required. The 3.55 acres in question are presently below flood elevation 176 and would be almost entirely flooded during severe floods.
Evidence adduced during the hearing indicated that the proposed filling by plaintiff of the 3.55 acres in question would result in a decrease in the flood retention capacity in the area of the subject property. In addition, there was evidence showing that the fill placed on the property was causing sediments and debris to enter the Whippany River,
which otherwise would not be there. The Council concluded that if additional fill were allowed that condition would worsen.
The hearing officer in her "Report of Hearing and Recommendations" found that in fact the additional filling of plaintiff's land, as proposed, would result in a loss in flood retention which although a small loss if only the subject property was considered, would cause a major problem if other properties in the area were filled in a similar manner.
Plaintiff argues that the Council has no power to prohibit the filling of his land with inert material.
New Jersey's stream encroachment legislation is set forth in N.J.S.A. 58:1-26.*fn1 This statute ...