On appeal from Freshwater Wetlands Exemption Denial Letter issued by the New Jersey Department of Environmental Protection, Division of Coastal Resources.
Petrella, Muir, Jr. and Brochin.
[247 NJSuper Page 15] The New Jersey Department of Environmental Protection (DEP) denied Stemark Associates (Stemark) an exemption from the provisions of the Freshwater Wetlands Protection Act (N.J.S.A. 13:9B-1 et seq.) (Wetlands Act) for construction of two single-family dwellings on eight lots which were delineated on an 1890 filed map.*fn1
Stemark claims entitlement to an exemption from the permit and transition area requirements of the Wetlands Act under the provisions of N.J.S.A. 13:9B-4. On this appeal, Stemark challenges the DEP's interpretation of the exemptions in the statute and argues that the Wetlands Act clearly intended to grandfather property owners standing in the same position as Stemark.
Stemark purchased eight lots in Dover Township for $30,000 on March 7, 1985, which it chose to assemble*fn2 into two lots of approximately 13,000 square feet each. Under the township's zoning ordinance 7,500 square feet are necessary to build a one-family dwelling. Hence, Stemark merged or assembled the eight nonconforming lots into two conforming lots under the municipality's zoning ordinance. Stemark applied for and received two building permits on April 28, 1987 from the Township of Dover construction official for the erection of a one-family dwelling on each lot.
Stemark argues that the lots had been "subdivided" into eight lots at some unspecified date prior to the date it purchased the property, thus eliminating any need for it to apply for preliminary or final subdivision approvals. It relies, for this proposition, on a statement in its title insurance policy that the property was subdivided prior to June 24, 1890 as evidenced by a "'Map of Bayview, Windsor Park, Ocean Co., N.J. 1889' which was filed in the Ocean County's Clerk's office."
After it received building permits, Stemark says that it staked the lots and had the land cleared. However, before a foundation was laid the township informed Stemark that an exemption letter was required from the DEP under the Freshwater Wetlands Protection Act.
In December 1988, Stemark requested an exemption letter from the DEP. By a June 1, 1989 letter, the DEP denied the requested exemption on the ground that the permits issued by the Dover Township Construction Official were not a basis for an exemption under the statute or the DEP's implementing regulations*fn3 (N.J.A.C. 7:7A-2.7(d)).
Stemark's subsequent request for an administrative hearing as a contested matter was denied on the ground that there was no statutory or constitutional right to such a hearing.*fn4
On this appeal Stemark presents the narrow issue of the construction and interpretation of the exemption provisions of the Freshwater Wetlands Protection Act in N.J.S.A. 13:9B-4, which read as follows:
4. The following are exempt from the requirement of a freshwater wetlands permit and transition area requirements unless the United States Environmental Protection Agency's regulations providing for the delegation to the state of the federal wetlands program conducted pursuant to the Federal Act require a permit for any of these activities, in which case ...