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New Jersey Builders Ass'n v. New Jersey Dept. of Environmental Protection

December 10, 1997

NEW JERSEY BUILDERS ASSOCIATION, APPELLANT,
v.
NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION AND ROBERT C. SHINN, JR., COMMISSIONER OF THE DEPARTMENT OF ENVIRONMENTAL PROTECTION. RESPONDENTS.



On appeal from the Department of Environmental Protection.

Approved for Publication December 10, 1997.

Before Judges Dreier, Keefe and P.g. Levy. The opinion of the court was delivered by P.g. Levy, J.A.D.

The opinion of the court was delivered by: Levy

The opinion of the court was delivered by

P.G. LEVY, J.A.D.

New Jersey Builders Association (Builders Association) challenges Administrative Order 1996-06, issued by the Commissioner of the Department of Environmental Protection (DEP) on July 29, 1996. The order, which was later published in the New Jersey Register, directed the DEP staff to apply departmental policies and regulations in a manner "consistent and compatible with" the State Development and Redevelopment Plan (State Plan). *fn1 The Builders Association contends the administrative order is invalid because it is the equivalent of an administrative rule but was not formally enacted as such under the Administrative Procedures Act (APA). Additionally, the Builders Association claims the State Plan is being inappropriately used as a basis for granting or denying particular applications to the DEP for permits or approvals. New Jersey Future *fn2 participated in the appeal as an amicus curiae, urging us to affirm the administrative order.

We view the administrative order as an intra-agency communication directing the DEP staff to use the State Plan as an aid to interpret DEP functions authorized by the Legislature. The administrative order, therefore, is not a rule, but merely a statement directing consideration of the State Plan during the anticipated rulemaking process. Further, the claim that the Plan is being inappropriately used in certain specific cases is not ripe for our consideration. Accordingly, we affirm the order and reject the challenges by the Builders Association.

The Plan is a product of the State Planning Act, N.J.S.A. 52:18A-196 to -207. The act establishes the State Planning Commission as the body charged with preparing and revising the State Plan. N.J.S.A. 52:18A-197 to -199. The Commission has the power to adopt rules and regulations. N.J.S.A. 52:18A-203. The aim of the State Plan is to "provide a coordinated, integrated and comprehensive plan for the growth, development, renewal and conservation of the State and its regions and which shall identify areas for growth, agriculture, open space conservation and other appropriate designations." N.J.S.A. 52:18A-199a. It must take into account other state, county, and municipal land use and other development plans, and must "coordinate planning activities and establish Statewide planning objectives" in enumerated areas of development. N.J.S.A. 52:18A-200c, 200f.

The Plan is intended "to serve as a useful guide to officials in both the public and private sectors in making planning and investment decisions." N.J.A.C. 17:32-6.1(a). But it has no "regulatory" effect:

Neither the State Development and Redevelopment Plan nor its Resource Planning and Management Map is regulatory and neither should be referenced or applied in such a manner. It is not the purpose of this process to either "validate" or "invalidate" a specific code, ordinance, administrative rule, regulation or other instrument of plan implementation.

[N.J.A.C. 17:32-6.1(b).]

With respect to the goal of consistency among plans, another regulation provides:

(a) The State Planning Act recommends but does not require that municipal and county plans be consistent with the State Development and Redevelopment Plan. During the cross-acceptance process, however, many government officials and citizens expressed concern, given the complexity of public plans and processes in general and of the State Plan in particular, about how agencies at each level of government would know whether their plans are consistent with the State Plan. It is the intention of the State Planning Commission, through the Office of State Planning, to assist all levels of government in achieving the highest possible degree of consistency with the State Plan. To that end, this subchapter outlines a voluntary review process which will analyze local, county, regional and State agency plans and provide findings and recommendations regarding the subject plan's incorporation of the various provisions of the State Plan.

[N.J.A.C. 17:32-7.1(a).]

Moreover, "no municipal, county, regional or State agency should delay any decision making process due to a pending review of their plans by the Office of State Planning for consistency with the SDRP." ...


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