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In re Waterfront Development Permit No. W D88-0443-1

Decided: November 13, 1990.


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

Antell, O'Brien and Keefe. The opinion of the court was delivered by Antell, P.J.A.D.


[244 NJSuper Page 427] On April 11, 1989, the Commissioner of the Department of Environmental Protection (hereinafter "DEP") issued a Waterfront

Development Permit to Hartz Mountain Industries, Inc. (hereinafter "Hartz Mountain") to complete the final build out stage of Lincoln Harbor along the Hudson River in Weehawken. The action of the Commissioner is challenged by the American Littoral Society (hereinafter "ALS") on the ground that the Commissioner breached his own department's regulations by personally displacing the Division of Coastal Resources (hereinafter "Division") to whom the power of issuing waterfront permits is confided by N.J.A.C. 7:7-1.5(a). Central to the appeal is ALS's dissatisfaction with those conditions of the permit which allow construction of the project so as to obscure the scenic view of the Hudson River and New York City skyline from the Lincoln Tunnel Helix*fn1 and from Gregory Avenue and Paterson Plank Road in Weehawken.

ALS is a non-profit corporation formed primarily to encourage the study and conservation of marine life, especially in the coastal zone. It claims to have about 8000 members, about 3500 of whom reside in New Jersey. It also claims to have been active with regard to issues involving access, both physical and visual, to coastal areas.

The project for which the permit was issued is a mixed use office, retail, hotel and residential complex within the waterfront area brought under regulation by N.J.S.A. 12:5-3. The entire site covers 93.317 acres extending along approximately 3700 linear feet of Hudson River shoreline. The permit allows construction of 1,044,176 square feet of office space, 44,437 square feet of retail space, 332 hotel rooms and 55 residential units. The full build out, including previously approved applications, would comprise 2,202,316 square feet of office space, 99,324 square feet of retail and restaurant space, 332 hotel units, a 250 slip marina and 300 units of housing. Impairment of the view would be caused by the presence of two 160-foot

high buildings. The vista, which has been described as "spectacular," is now enjoyed by hundreds of thousands of bus and car passengers each day. Although portions of the view will remain intact if the project proceeds as planned, it appears that its panoramic beauty will be substantially lost -- except to the commercial tenants of the two towers.

N.J.S.A. 12:5-3 provides that all plans for waterfront development must be submitted to DEP and that no such improvements may be implemented without that department's approval. By regulation, DEP has prescribed that no regulated activity may be undertaken without a permit issued by the "Division." N.J.A.C. 7:7-1.5(a). "Division" is defined by N.J.A.C. 7:7-1.3 to mean the Division of Coastal Resources in the Department of Environmental Protection. There can be no doubt about DEP's intention to delegate the permit-issuing function to the Division. N.J.A.C. 7:7-4.5 speaks of public hearings to be held before the "Division." N.J.A.C. 7:7-4.4 speaks of the "Division" making an initial review of applications. N.J.A.C. 7:7-4.7 prescribes the timetable within which the "Division" must act on development applications. Involvement of the "Commissioner," as distinguished from the "Division," comes about only after an appeal is taken by an interested person aggrieved by any final action of the Division. N.J.A.C. 7:7-5.1. Where appeals are granted the Commissioner must refer them to the Office of Administrative Law for a fact-finding hearing pursuant to the Administrative Procedure Act "after which the Commissioner will make a final decision." N.J.A.C. 7:7-5.3(d).

The subject of scenic resources and design policy is specifically addressed by the regulations. N.J.A.C. 7:7E-8.12(c) provides:

New coastal development that is visually compatible with its surroundings in terms of building and site design, and enhances scenic resources is encouraged. New coastal development that is not visually compatible with existing scenic resources in terms of large-scale elements of building and site design is discouraged.

"Scenic resources" are defined to include "views of the natural and/or built landscape." N.J.A.C. 7:7E-8.12(a). High rise structures, those that are more than 6 stories or more than 60 feet from existing preconstruction ground level, may be acceptable under N.J.A.C. 7:7E-7.14(a), but "[t]he proposed structure must not block the view of dunes, beaches, horizons, skylines, rivers, inlets, bays, or oceans that are currently enjoyed from existing residential structures, public roads or pathways, to the maximum extent practicable." N.J.A.C. 7:7E-7.14(a)3.

The project's impact on the area has provoked controversy, and a public hearing was held before the Division on January 11, 1989, at the Weehawken Municipal Building. It was attended by approximately 125 people, of whom 42 gave testimony, and the Division received approximately 170 letters commenting on the application. In general, the comments given in support of the project cited the municipal need for an improved tax base and respect for the local planning process. They urged that protection of the scenic view was not as important as acquiring needed tax ratables and that the local planning process had already provided at least partial protection for the views.

Opponents of the project cited loss of the views from the Lincoln Tunnel Helix, from Gregory Avenue and Paterson Plank Road, increased air pollution, increased traffic congestion and inadequate ...

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