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Normandy Beach Improvement Association v. Commissioner

Decided: December 28, 1983.

NORMANDY BEACH IMPROVEMENT ASSOCIATION, PETITIONER-APPELLANT,
v.
COMMISSIONER, DEPARTMENT OF ENVIRONMENTAL PROTECTION, STATE OF NEW JERSEY, AND OCEAN COUNTY UTILITIES AUTHORITY, RESPONDENTS-RESPONDENTS



On appeal from Final Decision of the Department of Environmental Protection.

Antell, Joelson and McElroy. The opinion of the court was delivered by Joelson, J.A.D.

Joelson

Normandy Beach Improvement Association (NBIA) is composed of property owners in an area known as Normandy Beach. This is NBIA's appeal from a final decision of the Department of Environmental Protection (DEP) issuing a permit under the Coastal Area Facility Review Act (CAFRA) for the Ocean County Utilities Authority (OCUA) to construct a sewerage pumping station in the Normandy Beach area. We affirm.

NBIA contends that it is entitled to a reversal because it was denied the type of evidentiary hearing required for a contested case. A contested case is defined in N.J.S.A. 52:14B-2(b) as:

In Little Falls Tp. v. Bardin, 173 N.J. Super. 397 (App.Div.1979), certif. den. 82 N.J. 286 (1980), we found that a township was not entitled to an adversarial hearing on an application which had been made for the registration of a solid waste disposal facility in the township. In so doing, we pointed out that cases on which the township relied, Juzek v. Hackensack Water Co., 48 N.J. 302 (1966) and In re Borough of Peapack-Gladstone, 11 N.J. Super. 498 (App.Div.1951) ". . . both involved administrative action directly affecting substantial property rights of the parties." Little Falls Tp. v. Bardin, supra, 173 N.J. Super. at 407. In Public Interest Research Group v. State, 152 N.J. Super. 191 (App.Div.1977), we held that environmental groups objecting to the issuance of a permit to construct a nuclear-power plant did not have particularized property rights sufficient to constitute them "specific parties" within the meaning of N.J.S.A. 52:14B-2(b), and that they were therefore properly

denied "a trial-type hearing." Id. at 205. Similarly in Cunningham v. Dept. of Civil Service, 69 N.J. 13, 22 (1975), the Court held that "[w]here the administrative agency is acting in a general capacity . . . so that the direct effect of its factual conclusions will be imposed on a class or group, as distinguished from such specific person or persons, then it may well be that such a hearing [adjudicative] is not required."

In the brief submitted on its behalf, NBIA contends that it is "not a public interest group challenging policy questions of broad applicability," but should be regarded as a specific party or parties having legally cognizable property rights. As already mentioned, NBIA is an association of property owners in the Normandy Beach area. The transcript of the hearing of April 21, 1982 before the hearing officer designated by the Director of the Division of Coastal Resources of DEP indicates that various home owners in Normandy Beach stated that the quality of their lives would be adversely affected by the proposed pumping station, and that a real estate expert stated that the station would have a detrimental effect on the economic values of the homes in the area.

Plaintiff's contention of entitlement to an evidentiary hearing, if adopted, would have far-reaching consequences. It has become common for property owners within the vicinity of a proposed governmental facility to join together to express their concern and to offer strong objection, whether the proposed facility be a prison, mental institution, drug-treatment center, highway, or anything else. The joint or individual rights of property owners to be heard should be respected, but we have been offered no support for the proposition that whenever a proposed governmental project will affect property owners within an indeterminate radius of the project, each owner or group of owners must be entitled to a full evidentiary hearing. To the contrary, property owners in a municipality do not possess the right to an evidentiary hearing when the municipality

proposes to revamp its existing zoning ordinance in such a manner as may adversely affect property values.

Regardless of the label given the hearing of April 21, 1982, we are satisfied that NBIA received an adequate and fair hearing. This conclusion is the result of our examination of the record of that hearing. Despite the initial statement of the hearing officer that he was not dealing with a contested case, the lengthy hearing, which we are advised lasted six hours, took on many aspects of an adversarial hearing. This was largely due to the insistence and persistence of NBIA's counsel. Administrative agencies have flexibility to develop "hybrid proceedings" in order to implement legislative policy. Texter v. Human Services Dep't., 88 N.J. 376, 385 (1982). The thorough consideration given to the application here was such that the objectors cannot show prejudice.

The summary report of the hearing officer indicates the objectors were represented by counsel, and 13 objectors spoke in opposition, supplemented by 60 letters of opposition. The summary report also states that an environmental consultant and an engineer were "in attendance" on behalf of the objectors. These professionals did more than merely attend. Both made lengthy statements in opposition to the pumping station, and the engineer's testimony at a prior hearing was marked "in evidence." As already mentioned, a real estate expert produced by NBIA also was heard. Certainly, NBIA was not prejudiced by the lack of opportunity of the OCUA's attorney to cross-examine these experts. Additionally, NBIA was given the latitude that it might have been denied at a strict evidentiary hearing to introduce into evidence factual findings of a law-court judge in a suit alleging offensive odors under pumping-station conditions which may have no longer existed or were to be corrected. ...


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