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Toll Brothers Inc. v. State

Decided: July 11, 1990.

TOLL BROTHERS, INC., PLAINTIFF-APPELLANT,
v.
STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION, DEFENDANT-RESPONDENT, AND MERCER COUNTY PLANNING BOARD, DEFENDANT



On appeal from Superior Court of New Jersey, Law Division, Mercer County.

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

Skillman

[242 NJSuper Page 522] On May 1, 1985, the Chairperson of the Washington Township Planning Board (Township Planning Board) sent a letter to the Chairperson of the Mercer County Planning Board (County Planning Board) notifying her that the Township Planning Board had adopted a new master plan which included a recommendation that the sewer system be expanded. The letter urged the County Planning Board to adopt the recommended sewer expansion as a part of the county's "208 Water Quality Management Plan Amendment." The letter further stated that adoption of this proposal would allow the "prior approved projects" of certain builders to "move forward." Plaintiff Toll Brothers, Inc. was apparently one of those builders.

On September 3, 1985, Mercer County transmitted an amendment to its Water Quality Management (WQM) Plan, providing for expansion of the sewer service area in Washington Township, to defendant Department of Environmental Protection (DEP) for approval.

On November 4, 1985, DEP published notice of the proposed amendment in the New Jersey Register. 17 N.J.R. 2689. The notice stated that interested parties would have 30 days within which to submit written comments and to request the scheduling of a nonadversarial hearing.

In December 1985 DEP adopted the Statewide WQM Program Plan. 18 N.J.R. 110. This plan, among other things, required the adoption of a county Wastewater Management Plan (WMP) as a precondition of DEP approval of any significant change in a sewer service area. Given this new requirement as well as the demands of various other Mercer County municipalities for amendments in its WQM Plan, the Director of Mercer County's WQM program indicated to DEP that the county anticipated preparing a comprehensive county-wide WMP in lieu of processing individual amendments for all of the municipalities in the county. To that end, the county requested DEP to postpone a final decision on Washington's proposed plan amendment. This postponement was agreed to by Washington Township and the amendment was deactivated. However, the deactivation of the plan amendment relating to the sewer service area in Washington Township apparently was not communicated to affected parties such as plaintiff.

Mercer County never submitted a county-wide WMP to DEP in accordance with the statewide plan adopted in December 1985. It also never requested DEP to reactivate the plan amendment relating to the sewer service area in Washington Township.

On March 31, 1988, plaintiff filed an application for preliminary subdivision approval. The Township Planning Board approved the subdivision application for 93 lots, subject to the

condition that plaintiff's property be included within the Section 208 sewer service area. But the County Planning Board denied the application on May 10, 1989 on the ground that plaintiff's property is beyond the current sewer service area.

On May 16, 1989, plaintiff's counsel sent a letter to DEP requesting the agency to approve Mercer County's 1985 application to amend its WQM plan relating to Washington Township.

On June 6, 1989, the Chief of the Wastewater Planning Section of the Bureau of Water Quality Planning sent a reply to plaintiff's counsel advising him that the county's plan amendment had been deactivated and that neither the county nor the township had ever requested that it be reactivated. The letter further noted that "[s]ince the amendment was deactivated, the WQM Plan amendment requirements have changed significantly, particularly with regard to the requirements for a WMP" and recommended that plaintiff "work with the township to develop a WMP that would address all of the wastewater needs of the Township."

On June 8, 1989, plaintiff filed suit against DEP and the Mercer County Planning Board.*fn1 The complaint alleged that DEP had a ministerial duty under N.J.A.C. 7:15-3.4c(4)(i)(2)*fn2 to act within 60 days upon any petition to amend a WQM plan. The complaint further alleged that DEP's failure to finally approve Mercer County's plan amendment did not substantially advance any legitimate public interest and regulated plaintiff's property into economic inutility without payment of just compensation, thereby violating plaintiff's rights under the Fifth and Fourteenth Amendments to the U.S. Constitution and the

New Jersey Constitution, Art. I, par. 1 and par. 20. Accordingly, plaintiff demanded judgment directing DEP to forthwith approve the 1985 plan amendment, thereby including plaintiff's property within the township's sewer service area. In addition, plaintiff demanded an ...


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