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Tanurb, an Ontario General Partnership v. NEw Jersey Department of Environmental Protection

October 29, 2003

TANURB, AN ONTARIO GENERAL PARTNERSHIP, PETITIONER-APPELLANT,
v.
NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, RESPONDENT-RESPONDENT.



On appeal from a Final Decision of the New Jersey Department of Environmental Protection, OAL Docket No. ESA-11831-95, Agency Docket No. FWW 0313-90-906.3 FWIP.

Before Judges Coburn, Wells and Fisher.

The opinion of the court was delivered by: Coburn, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 16, 2003

Tanurb appeals from a decision of the Commissioner of the New Jersey Department of Environmental Protection ("DEP"). The decision, which confirmed the ruling made by an Administrative Law Judge ("ALJ") after a six-day hearing, denied Tanurb's application to build a 15,600 square-foot addition to an existing retail center because it would unjustifiably eliminate 1.02 acres of the 1.35 acres of freshwater wetlands remaining on the site. We affirm.

I.

On March 30, 1988, Tanurb bought the land in question for about $2,500,000, intending to build a 120,000 square-foot retail shopping center with an expected annual return on investment of fifteen percent. The site is in a developed area on the southbound lanes of Route 73 in Evesham Township, Burlington County. The purchase was made after the Freshwater Wetlands Protection Act, N.J.S.A. 13:9B-1 to 13:9B-30 ("FWPA"), was enacted but before its July 1, 1988 effective date.

Tanurb's environmental consultants delineated less than one acre as freshwater wetlands. Since freshwater wetlands were then regulated by the Army Corps of Engineers (the"Corps"), Tanurb applied to that agency for permission to fill .96 acres of wetlands. The Corps approved subject to Tanurb obtaining a letter of interpretation ("LOI") from the DEP verifying the wetlands boundary. In 1990, in response to Tanurb's request, the DEP determined that this site had approximately 2.4 acres of intermediate resource value freshwater wetlands.

On March 9, 1990, Tanurb applied to the DEP for a transition area waiver-averaging plan ("TAW-AP") to modify the standard 50-foot transition which would otherwise have been required around the meadow portions of these wetlands. The DEP granted this application conditioned on Tanurb recording a deed restriction prohibiting further disturbance of the modified transition area. This allowed for a project of somewhat reduced size; instead of a 120,000 square foot building, there would be two buildings about 300 feet apart, one consisting of 72,000 square feet on the north side of the meadow and the other of 8,000 square feet on the south side. The buildings were connected by a roadway about 600 feet long. This left about 1.35 acres of wetlands. Tanurb built the project while hoping to develop the remaining wetlands despite its promise to enhance their quality through planting programs. In an attempt to buttress its privately held future plans, Tanurb mistreated the wetlands and failed to record the required deed restriction.

In 1993, Tanurb applied to the DEP to expand the retail center. The application was denied by an Administrative Law Judge and then by the Commissioner because of Tanurb's failure to file the deed restriction and because it did not prove that there was a compelling public need for further development. No appeal was taken from that ruling.

In 1999, Tanurb submitted the subject application, seeking to construct a 15,600 square foot addition that would have resulted in the elimination of 1.02 acres of the remaining 1.35 acres of freshwater wetlands. It complained that the existing site is"effectively bisected by the impaired wetlands in question, creating a'disjointed' environment." It offered evidence that some of its tenants wanted larger space in a physically integrated shopping center, which would draw more customers, and that its proposal would increase its return on investment. However, based on the testimony of Tanurb's own financial expert, the return would only increase from 8.02% to 8.44%, a net gain of only.42%. Although Tanurb introduced proof that these wetlands had been compromised, there was substantial evidence that Tanurb itself contributed to the deterioration by failing to enhance the quality of the land and by cutting down trees on it.

The record contains considerable evidence of alternatives that would have permitted some additional building without encroaching on the wetlands, all of which are detailed in the administrative decisions under review.

II.

On appeal, Tanurb contends that the statutory criteria for issuance of permits are unconstitutionally vague, that the Commissioner's findings of fact and conclusions of law are arbitrary, capricious, and unreasonable, and that the DEP should not have applied the compelling public need standard set forth in N.J.A.C. 7:7A-7.1(g). Although the ALJ used that regulation as an alternative basis for his decision against Tanurb, the Commissioner did not, endorsing instead the ALJ's finding that the permit should be otherwise denied on its merits. Since we are satisfied that the statutory criteria are sufficiently clear and the denial is supported by the evidence, we need not consider Tanurb's arguments that that regulation should not have been applied retroactively and that it is ultra vires.

Tanurb contends that the standards of N.J.S.A. 13:9B-9(b)(2) are unconstitutionally vague. More specifically, it argues that the statute's provisions allowing freshwater wetlands permits only if there is"no practicable alternative" and where there is a"minimum feasible alteration or impairment of the aquatic ecosystem" are standards"impossible to apply with any uniformity and objectivity."

N.J.S.A. 13:9B-9 sets forth the standards for the DEP to apply when considering a freshwater wetlands permit:

b. The department, after considering the comments of the environmental commission and planning boards of the county and municipality wherein the regulated activity is to take place, federal and State agencies of competent jurisdiction, other affected municipalities and counties, and the general public, shall ...


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