On appeal from the Final Decision of the Department of Environmental Protection.
The opinion of the court was delivered by: S.L. Reisner, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE COMMITTEE ON OPINIONS
Before Judges Stern, Coburn and S.L. Reisner.
Plaintiff, SJC Builders, LLC (SJC), appeals from a final determination of the New Jersey Department of Environmental Protection (DEP) requiring the company to obtain a New Jersey Pollution Discharge Elimination System (NJPDES) permit for a proposed housing development. We affirm.
SJC owns property designated as lots four and six in Randolph Township, which the company intends to develop into Heritage 55, an age-restricted community consisting of thirty-one separate housing units. SJC planned to subdivide the property into eight smaller lots and build several units on each lot. According to SJC's proposed plan, each subdivision would share an individual subsurface sewage disposal system and each of the eight sets of units would be individually governed by a separate condominium association. The individual condominium associations would retain responsibility for the operation of the disposal system on each subdivided lot as well as other shared elements of the buildings on the individual lots. However, all of the subdivisions would be governed by a master property owners association for the entire development. The master association would be responsible for, among other things, the stormwater management system for the entire development. There is no dispute that SJC proposed this entire structure in an effort to avoid having to obtain a NJPDES permit for its overall sewage disposal system.
SJC submitted a development application to the Randolph Township Planning Board with this proposed structure of condominium governance. The Planning Board granted preliminary and final major site plan and subdivision approval.
After the Planning Board granted subdivision approval, SJC sought a permit for the installation of individual septic systems from the Randolph Township Health Officer pursuant to N.J.A.C. 7:9A, Standards for Individual Subsurface Sewage Disposal Systems. These regulations "prescribe standards for the location, design, construction, installation, alteration, repair and operation of individual subsurface sewage disposal systems." N.J.A.C. 7:9A-1.2. However, the regulations prohibit "the use of a subsurface sewage disposal system for more than one property . . . unless a treatment works approval or a NJPDES permit had been issued by the [DEP]." N.J.A.C. 7:9A-1.6(c). The term "property" is not defined under N.J.A.C. 7:9A. The regulations also limit local approval to systems discharging up to 2,000 gallons of sewage per day. N.J.A.C. 7:9A-1(a). While each of the eight individual septic systems in SJC's proposed development would only discharge 2,000 gallons or less per day, the development as a whole would discharge 6,200 gallons per day.
By letter dated July 29, 2003, the township health officer referred the matter to the DEP to determine whether a NJPDES permit was required for the proposed development. After reviewing the application including the site plan, septic design and design calculations for one of the proposed systems, the DEP advised the township health department that SJC was required to apply for a NJPDES permit. The agency's August 14, 2003 letter stated:
The [DEP] has reviewed the information submitted and has determined that the total design flow of the property is greater than 2,000 gallons per day and the sewage disposal facilities can not be approved by your office. Approval for systems with total design flows of greater than 2,000 gallons per day must be approved by the Department through the NJPDES process. This determination is based upon the Department's working definition of "property" which means:
1. A single lot as defined by municipal lot and block or right of way (unless paragraph 2, below, applies); or
2. The combined area contained within the legal boundaries of two or more contiguous lots where, for any part of each of those lots, there is a shared pecuniary, possessary or other substantial common interest by one or more persons (such as common ...