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Woodland Utility Co. v. Department of Environmental Protection

Decided: March 1, 1979.

WOODLAND UTILITY COMPANY, INC., A CORPORATION OF THE STATE OF NEW JERSEY, APPELLANT,
v.
DEPARTMENT OF ENVIRONMENTAL PROTECTION OF THE STATE OF NEW JERSEY, RESPONDENT



On appeal from the Department of Environmental Protection of the State of New Jersey.

Conford, Pressler and King. The opinion of the court was delivered by King, J.A.D.

King

[166 NJSuper Page 325] Appellant, a utility company formed to provide sewerage services for a proposed 5,000-unit senior

citizens' development, challenges the validity of the revocation of a so-called "conceptual approval" for sewer construction previously issued by the Division of Water Resources (DWR) of the Department of Environmental Protection (DEP). The proposed project lies wholly within the drainage area of the South Branch Rancocas Creek in the Central Pine Barrens.

In December 1973 appellant applied to the DWR for preliminary approval of its proposed waste water treatment and disposal facilities for the project pursuant to then-effective N.J.A.C. 7:9-1.7, which stated in full:

(a) Preparation of a preliminary report and plan is advisable before detail design proceeds.

(b) Preliminary data shall be discussed with the Department engineers before final decisions are made.

(c) Formal comments will be made by the Department on preliminary data if requested.

Appellant's concept was to construct a 600,000 gallon per day plant (gpd) with effluent disposal through ground absorption beds. Following the application representatives of appellant and the DEP discussed the proposal and conducted extensive field investigations. In November 1974 the DEP granted "conceptual approval" for the first phase of the project, a 300,000 gpd waste treatment facility subject to five conditions.

Appellant made no effort to proceed towards obtaining final construction approval of the first phase of its facility between November 1974 and September 1977. Appellant contends and we accept as an explanation for much of the delay the pendency of zoning litigation involving the housing project which was not resolved until the opinion of our Supreme Court was rendered in Shepard v. Woodland Tp. Comm. and Planning Bd. , 71 N.J. 230 (1976), on September 28, 1976.

On September 23, 1977 the DEP declared its prior conceptual approval for the first phase as "null and void" on two grounds: (1) the extensive period of time since the grant of

approval during which "no plans or communications were received," and (2) interim upgrading of environmental ...


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