On appeal from the State of New Jersey, Department of Environmental Protection and Energy.
Petrella, Arnold M. Stein and Kestin.
These three appeals have been consolidated for the purpose of this opinion. They involve the scope and meaning of two provisions of the Freshwater Wetlands Protection Act (FWPA), N.J.S.A. 13:9B-1 et seq., which exempt certain uses from the Act's coverage.
The Morich and Fish matter and the Watson matter implicate N.J.S.A. 13:9B-4d(1), exempting projects for which preliminary site plan or subdivision applications received local preliminary approvals under the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 et seq., prior to the effective date of the FWPA, July 1, 1988. The Loftus matter relates to N.J.S.A. 13:9B-4d(2), exempting projects for which preliminary site plan or subdivision application had been submitted before June 8, 1987.
The FWPA is designed "to preserve the purity and integrity of freshwater wetlands from random, unnecessary or undesirable alteration or disturbance . . . ." N.J.S.A. 13:9B-2. The objective is to be achieved by regulating commercial and residential property development through the Department of Environmental Protection and Energy (DEPE). A non-exempt landowner seeking to develop property in ways described by the Act is first required to obtain the permission of the DEPE.
On December 14, 1990, the Attorney General issued Formal Opinion No. 3 (1990) defining the scope of the FWPA's exemption provisions. On April 19, 1991, that opinion was modified in Formal Opinion No. 3 (1990): Reprise. A focus of the modification was the view that the N.J.S.A. 13:9B-4d(1) and (2) exemptions were to be strictly construed as covering only instances involving preliminary site plan or subdivision applications or approvals. Based upon the Attorney General's opinion, the DEPE
adopted a policy that site plan or subdivision applications that proceeded directly to final approval were not exempt from the requirements of the FWPA. As applied in practice, the result of this policy was to render the FWPA's exemptions inapplicable to minor subdivisions.
Appellants Morich and Fish had purchased a tract of land which had been the subject of a minor re-subdivision approval in Stafford Township on January 20, 1988, several months before the July 1, 1988 effective date of the FWPA. Their application for an FWPA exemption on March 8, 1991 was denied. In a letter dated June 10, 1991, the DEPE stated its policy, based upon the Attorney General's opinions, that "minor subdivisions do not qualify for exemption from the Act because they do not obtain preliminary approvals . . . ." (emphasis deleted).
Appellant Watson owns a lot which was created by a minor subdivision approved by the Weymouth Township Planning Board on March 9, 1983, more than five years before the effective date of the FWPA. Development of the lot had been delayed, however. On January 15, 1991, an FWPA exemption was sought. The exemption was denied on May 10, 1991 for the same reason that was later given in the Morich and Fish matter.
Appellant Loftus had applied for a minor subdivision on November 17, 1986. The application was not perfected, and it was denied without prejudice by the Upper Saddle River Planning Board in a resolution dated March 26, 1987. A new application, substantially identical to the first, was filed on July 2, 1987, nearly a month after the N.J.S.A. 13:9B-4d(2) exemption date for application submissions. This application was also not perfected and was denied without prejudice on September 24, 1987. On this occasion, however, Loftus was given an opportunity to reinstate the application within 60 days, later extended to 120 days. On October 28, 1988, almost four months after the effective date of the FWPA, approval subject to conditions was granted.
Loftus' application for exemption from the FWPA was filed on January 18, 1991. The application was ...