On appeal from the final decision of the Commissioner of the New Jersey Department of Environmental Protection and Energy.
Before Judges Brody, Stern and Keefe.
Distributec appeals from the denial of its application for permission to build a new port facility for container-cargo vessels on the Delaware River in Delanco Township by the Department of Environmental Protection and Energy (DEPE).
Distributec purchased the Delanco facility in 1987. It was formerly owned and operated by the Kaiser Gypsum Corporation. In the Kaiser operation, freighters carrying bulk gypsum were unloaded at a T-shaped pier. Kaiser abandoned the facility some time in the mid-to-late 1970's. The dilapidated remains of that pier are still present on the site.
Distributec's property, consisting of approximately thirty-eight acres, is bounded on the west by the Delaware River, along which Distributec owns about 1,000 feet of waterfront and about eleven acres of submerged land on which the proposed port facility's new pier would be constructed. To the north, the property is bounded along the river by undeveloped land owned by Delanco and formerly used as a dredge spoil deposit site. Additionally, four houses on the edge of a large residential area are situated along the non-river northern border. To the east, the property is bounded by Burlington Avenue, beyond which lies a largely undeveloped tract of land. The southern edge is bounded by a forty-five acre tract of riverfront property owned by intervenor Delanco Land partnership (DLP) which appeared in opposition to the proposed port facility. DLP is a developer which plans to build a large residential complex and marina.
After a public hearing, the Director of the Division of Coastal Resources (Division) issued a decision denying Distributec's application. The Division found that Distributec's proposal was inconsistent with its regulatory polices on Ports, as specified in N.J.A.C. 7:7E-3.11; Port Use, as specified in N.J.A.C. 7:7E-7.9; and Traffic, as specified in N.J.A.C. 7:7E-8.16 (now-8.14).
Distributec filed an appeal from the Division's decision and requested an administrative hearing. The matter was thereafter referred to the Office of Administrative Law for a fact-finding hearing as a contested case. DLP was granted leave to intervene.
During the hearing before the Administrative Law Judge (ALJ), the Division conceded that "the project would be in substantial compliance with the rule of Traffic[,]" N.J.A.C. 7:7E-8.16 (now-8.14), reversing its prior determination on that subject. Thereafter, the hearing focused on the Division's determinations concerning the Ports Rule and Port Use Rule.
The ALJ issued a written decision finding that Distributec's proposed facility did not meet the Ports Rule definition of an existing port because "Distributec does not lie within or immediately adjacent to a concentration of shore side marine terminals." N.J.A.C. 7:7E-3.11(a). Having determined that Distributec's proposed facility failed to qualify as an existing port under the Ports Rule definition, the ALJ then determined that Distributec had satisfied the Port Use Rule's separate requirements for establishment of a new port outside of the defined port areas. Specifically, the ALJ concluded that there was an absence of suitable space for Distributec in existing ports, N.J.A.C. 7:7E-7.9(c), and that Distributec's proposed facility would not be incompatible with surrounding land uses in Delanco. N.J.A.C. 7:7E-7.9(d). Thus, the ALJ recommended a reversal of the Division's denial of Distributec's application to construct a port facility.
While the matter was pending before the Commissioner for final decision, the Township of Delanco (Delanco) moved to intervene in the matter. Delanco's intervention motion was motivated by the fact that DLP had prevailed against it in Mt. Laurel litigation.*fn1 This resulted in a revision of Delanco's zoning ordinance and court approval of its affordable housing obligation under which DLP proposed to include Mt. Laurel housing units as part of the
residential complex and marina that it planned to construct next to Distributec's property. Consequently, Delanco sought to intervene in opposition to Distributec's permit application, in order to protect DLP's proposed project and preserve the court approval of Delanco's affordable housing obligation. The Commissioner ordered that the matter be reopened and Delanco be permitted to intervene.
Thereafter, the Commissioner issued his Final Decision, rejecting the ALJ's decision and affirming the decision of the Division. In his decision, the Commissioner concluded that Distributec's proposed facility failed to meet the requirements of the Ports Rule because it did not meet the definition of an existing port. N.J.A.C. 7:7E-3.11(a). Next, the Commissioner concluded that Distributec had failed to satisfy one of the requirements of the Port Use Rule, N.J.A.C. 7:7E-7.9(c), because it failed to demonstrate the unavailability of suitable land and water areas in or adjacent to established ports. The Commissioner also determined that Distributec had failed to show that the proposed port facility would be compatible with the surrounding land uses in and around Delanco, as required under another subsection of the Port Use Rule, N.J.A.C. 7:7E-7.9(d).
Distributec appeals from the Commissioner's decision and presents several issues. We affirm the Commissioner's decision for the reasons stated herein.
Distributec contends that the Ports Rule and the Port Use Rule violate the legislative objectives underlying the Waterfront Development Act (WDA), N.J.S.A. 12:5-1 to 11, under which those rules were promulgated. We reject that contention.
Adopted in 1914, the WDA was the end product of a critical study, several reports, and a recommendation by the New Jersey Harbor Commission. Last Chance Development Partnership v. Kean, 232 N.J. ...