Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Spalt v. New Jersey Department of Environmental Protection

Decided: December 7, 1989.

EVAN SPALT, JAMES JENKS, CONSTANCE PILLING, WILLIAM D. DECAMP, JR., AND BARNEGAT BAY PRESERVATION COALITION, PLAINTIFFS-APPELLANTS,
v.
NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, DIVISION OF COASTAL RESOURCES WITHIN NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION AND TRENDOR CORPORATION, A NEW JERSEY CORPORATION, DEFENDANTS-RESPONDENTS



J.h. Coleman, Muir, Jr., and Skillman. The opinion of the court was delivered by Coleman, J.h., P.J.A.D.

Coleman

The key issue raised in this appeal is whether plaintiffs were entitled to an adjudicatory hearing. Our careful study of the record persuades us to conclude they were not. Hence, we affirm.

I

A rather detailed procedural and factual history is essential to an understanding and resolution of the issues raised. Defendant Trendor Corporation (Trendor) has proposed construction

of a 134 dwelling unit, 208 slip boat marina project called Pelican Cove. The project would redevelop an existing marina located near Barnegat Bay in Bricktown, Ocean County, New Jersey. Plaintiff Barnegat Bay Preservation Coalition is a citizen's group concerned with the preservation and protection of Barnegat Bay. The other plaintiffs, all members of the Coalition, are leaseholders in Barnegat Bay area shellfish beds, professional shell fishermen, and area property owners.

Trendor applied to the New Jersey Department of Environmental Protection (DEP) for a Coastal Area Facility Review Act (CAFRA) permit, pursuant to N.J.S.A. 13:19-1 et seq., because of the number of dwelling units to be constructed. N.J.S.A. 13:19-3(c)(5). Trendor also applied for a Waterfront Development Act (WDA) permit pursuant to N.J.S.A. 12:5-1 et seq., because the slip boat marina construction requires work to be performed in a state navigable waterway or stream. N.J.S.A. 12:5-3. The DEP conducted a Preliminary Analysis in conjunction with the permit applications. After this study was conducted, the DEP expressed concern with the project's location, water quality and shellfish bed impact. The project was given a "discouraged' status, N.J.A.C. 7:7E-1.5(c). Because of that classification, Trendor was required to submit supplemental information before the DEP would declare the application complete for filing. Trendor complied, and the application was declared complete for filing on July 24, 1985.

As part of its permit review process, the DEP, through the Division of Coastal Resources (DCR), held a fact-finding public hearing on August 29, 1985, as mandated by N.J.S.A. 13:19-9, at which plaintiffs made presentations. DCR consulted with the Division of Water Resources (DWR), charged with water quality protection.

On April 18, 1986, the DEP issued CAFRA and WDA permits to Trendor. The CAFRA permit contained certain conditions. A report issued with the permits stated that the project's impact on nearby shellfish beds from potential contaminated

site storm water runoff had been the focus of DCR review. Contaminants of particular concern were heavy metals from paints, petroleum products from cars and boats, and fertilizers. Permit conditions were imposed to prevent shellfish bed degradation. These conditions required, among other things, a reduction in the number of parking spaces and boat slips, use of pervious parking surface materials to absorb runoff, landscaping restrictions, and the submittal to DCR of a water pollution control plan.

Following issuance of the conditional permits, Trendor requested an adjudicatory hearing pursuant to N.J.A.C. 7.7-5.1(a) to preserve its right to contest six of the permit conditions. The DEP granted the motion. Trendor then negotiated with DCR respecting the scope of a Water Pollution Control Plan required by DWR. During the negotiations, Trendor submitted a series of technical proposals for various water treatment and water detention facilities. Plaintiffs were supplied with all written submissions from Trendor concerning the Water Pollution Control Plan.

Pertinent to this appeal are two applications filed by plaintiffs while the negotiations were ongoing. The first consisted of a letter dated May 7, 1986 and Supplemental Notice of Appeal dated June 10, 1986, in which plaintiffs appealed to the DEP from the issuance of both the CAFRA and WDA permits and requested a stay. In their Supplemental Notice of Appeal, plaintiffs requested an adjudicatory hearing. The DEP treated the request for an adjudicatory hearing as having been made pursuant to N.J.A.C. 7:7-5.1. In denying this request, the DEP found that there was no contested case within the meaning of the Administrative Procedure Act (APA), N.J.S.A. 52:14B-1 et seq. and N.J.A.C. 1:1-1 et seq. The DEP concluded that plaintiffs were not aggrieved parties under the APA, and that CAFRA and WDA did not provide a right ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.