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In re 970 Realty Associates

Decided: July 13, 1989.

IN THE MATTER OF 970 REALTY ASSOCIATES AND STUART EISENBERGER


On appeal from the New Jersey Department of Environmental Protection.

Michels, Long and Keefe. The opinion of the court was delivered by Keefe, J.s.c. (temporarily assigned).

Keefe

Appellant, Jeanette Blitz, appeals from a ruling by the New Jersey Department of Environmental Protection (DEP) resulting in the issuance of a letter of non-applicability in connection with the proposed transfer of property from 970 Realty Associates and Stuart Eisenberger (hereinafter jointly referred to as 970) to Blitz. Blitz contends on appeal that the subject property comes within the definition of an industrial establishment as defined under the New Jersey Environmental Clean-up Responsibility Act (ECRA) and the rules and regulations promulgated thereunder. Thus, Blitz argues that the property in question is subject to the requirements of ECRA and that DEP erred in issuing the letter of non-applicability. Respondents 970 and DEP contend, among other things, that Blitz lacks standing to maintain this appeal and, in any event, the issue raised by her is moot. We agree with the respondents' contentions in that regard and dismiss the appeal both on the grounds of standing and on mootness. Therefore, we do not reach the issue of the correctness of DEP's decision.

On July 26, 1987, 970 entered into a contract with Blitz for the sale of property in Rahway, New Jersey. Subsequently, on August 6, 1987, 970 applied to DEP for a determination that ECRA did not apply to the transfer. N.J.A.C. 17:26B-1.9. On August 24, 1987, DEP issued a letter of non-applicability.

On September 22, 1987, Blitz instituted an action against 970 in the Superior Court, Chancery Division, General Equity Part, seeking restraints on the disposition of the property, reformation of the contract and damages. In that action, Blitz claimed that 970 made certain misrepresentations of fact as to the extent of hazardous waste contamination on the property. Thereafter, Blitz submitted information to DEP in an effort to obtain a revocation of the letter of non-applicability. Pursuant to Blitz's request, DEP undertook a further investigation. Upon completion of its investigation DEP advised Blitz's attorney

that its prior decision would not be changed. Blitz appealed that ruling.

Subsequent to the filing of this appeal, Blitz withdrew her request for specific performance and for reformation of the contract in the General Equity action. An order was entered to that effect on December 2, 1988. The claims in that suit are now apparently limited to rescission and damages.

Plaintiff's voluntary abandonment of her claim to possession of the property both deprived her of standing to pursue this appeal and renders DEP's decision moot. In order to have standing to pursue this appeal plaintiff must demonstrate that she has:

[a] sufficient stake and real adverseness with respect to the subject matter of the litigation. (citation omitted). A substantial likelihood of some harm visited upon the plaintiff in the event of an unfavorable decision is needed for purposes of standing. (citations omitted).

N.J. Chamb. Commerce v. N.J. Elec. Law Enforce. Comm., 82 N.J. 57, 67 (1980). Further, although New Jersey has liberal standing requirements, a court should not "render advisory opinions or function in the abstract, . . . .' Walker v. Stanhope, 23 N.J. 657, 660 (1957).

Theoretically, if Blitz pursued her suit for specific performance in the General Equity matter and it was granted, an erroneous decision by DEP that ECRA was not applicable to the transfer could expose Blitz to clean-up costs upon her future transfer of the property, regardless of fault. See, Superior Air Prod. v. N.L. Industries, 216 N.J. Super. 46, 64 (App.Div.1987). In such instances, a potential transferee would have standing to challenge DEP's decision concerning non-applicability of ECRA. However, because Blitz does not seek possession of the property, even if DEP's decision was wrong, Blitz will not incur the cost of any clean-up required upon the future transfer of the property. Thus, Blitz suffers no real injury stemming from the ECRA proceeding itself.

Blitz suffers adversely from the DEP administrative proceeding only if DEP's decision in this ...


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