On appeal from the Final Order of the Department of Environmental Protection and Energy.
Before Judges Brody, Stern and Keefe.
The opinion of the court was delivered by KEEFE, J.A.D.
The issue presented on appeal is whether a resolution passed by the Township of Vernon Planning Board (Planning Board) on May 25, 1983 constituted site plan approval under the Municipal Land Use Law (MLUL) so as to exempt plaintiff's operations from the permit requirements of the Freshwater Wetlands Protection Act (FWPA). The Commissioner of the Department of Environmental Protection and Energy (DEPE) determined that Mt. Bethel Humus Company, Inc. (Mt. Bethel) did not qualify for an exemption under the provisions of N.J.S.A. 13:9B-4d of the FWPA. Mt. Bethel appeals from that determination and we affirm.
Mt. Bethel has been actively engaged in harvesting and extracting peat, humus and clay from its land in Vernon Township (Township) since 1965. All parties concede that, by 1975 when the Township passed a Soil Removal ordinance, Mt. Bethel's mining operation had gained the status of a nonconforming use. At that time, Mt. Bethel's property was located in an A-1 residence district where soil removal was permitted only as a special exception use. Regardless of whether a landowner had received a special exception use variance or the protection of nonconforming
use status, the Township's Soil Removal ordinance prohibits the removal of soil "for sale or use other than on the premises from which the soil [is] taken" unless a permit had first been issued and the operation was "in accordance with an approved plan."
The permit process requires a two-step procedure. If the applicant has the protection of nonconforming use status (as did Mt. Bethel), the application for a permit must be filed with the Planning Board.*fn1 The application must be accompanied by a map or maps showing such things as contour lines, the location of all structures, roads, storage areas and details concerning drainage. The ordinance specifically discourages wet mining and specifically prohibits the removal of soil "within eight (8) feet of the water table." The Planning Board's function under the ordinance is to make recommendations to the Township Committee. It is the Township Committee that has the power to either issue or withhold the permit.
In August 1976, the MLUL took effect, and the Township began to conform its land use laws to the MLUL. Specifically, in 1978, the Township amended its site plan review provisions to conform to the provisions of the MLUL in that regard.
Mt. Bethel initially took the position that the Soil Removal ordinance did not to apply to Mt. Bethel's preexisting operation. However, Mt. Bethel eventually conceded the applicability of the ordinance and in 1981 applied for a soil removal permit. It specifically sought a waiver from that part of the ordinance prohibiting soil removal from within eight feet of the water table. Apparently, the very nature of humus excavation is that the process occurs at or below the water table. The ordinance permits variances from strict compliance under certain circumstances. Maps or plans as required by the ordinance were submitted for review and approval. The application was erroneously
filed with the Board of Adjustment. However, in view of Mt. Bethel's nonconforming use status, the matter was properly referred to the Planning Board.
After hearings on the application, the Planning Board adopted an extensive resolution essentially recommending that the Township Committee issue the soil removal permit to Mt. Bethel subject to enumerated conditions. Thereafter, on July 23, 1984, the Township Committee passed a resolution granting Mt. Bethel a soil removal permit subject to essentially the same enumerated conditions suggested by the planning Board. The Township Committee agreed with the planning Board that Mt. Bethel was entitled to a waiver or variance from the provision of the ...