Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Freshwater Wetlands Statewide General Permits

January 11, 2006

I/M/O FRESHWATER WETLANDS STATEWIDE GENERAL PERMITS.


On certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

[NOTE: This is a companion case to In re NJPDES Permit No. NJ0025241, A-116-04, also filed today]

In this appeal, the Court must decide whether neighboring property owners challenging the Department of Environmental Protection's issuance of a General Permit Number 6 (GP-6) to fill "isolated" wetlands were entitled to a trial-type hearing before the Office of Administrative Law (OAL).

Maramark Builders, L.L.C., owns a seven-acre wooded and undeveloped piece of property in Livingston Township on which it intends to build single-family residences. While seeking subdivision approval from the Livingston Township Planning Board, Maramark applied to the Department of Environmental Protection (DEP or Agency) for a freshwater wetlands permit to fill a portion of "isolated" wetlands on that property, pursuant to the Freshwater Wetlands Protection Act (FWPA), N.J.S.A. 13: 9B-1 to -30. Petitioners are property owners and a community organization named Preserve Old Northfield (POND) who objected to the issuance of the permit on the ground that the wetlands are not "isolated" and that filling them will exacerbate flooding conditions on their adjoining properties.

The DEP extensively examined the wetlands issue over a two-year period. The Agency considered the objectors' letters and environmental expert reports; conducted on-site inspections; and met with neighboring property owners, their expert, and their lawyers. At the end of that review process, the DEP issued Maramark a freshwater wetlands permit.

Before and after the DEP's issuance of the permit, the neighbors demanded a trial-type hearing before the OAL. The DEP responded that the neighbors had no statutory or constitutional right to such a hearing as part of the administrative permitting process. The Appellate Division concurred, finding that the neighbors' speculative claims of increased flooding did not give rise to a property interest cognizable under the federal or state constitution. The panel was "confident" that the objectors were accorded constitutional process commensurate with their property interests. Accordingly, the Appellate Division upheld the DEP's decision to deny the objectors an adversarial, adjudicatory hearing before an administrative law judge.

We granted certification and also granted the motion of the New Jersey Builders Association to participate as amicus curiae. We now affirm the judgment of the Appellate Division.

HELD: The Department of Environmental Protection's administrative review procedures for the issuance of a freshwater wetlands permit satisfies traditional notions of due process.

1. Although far from a model of clarity, the Administrative Procedure Act allows that "[a] person who has a particularized property interest sufficient to require a hearing on constitutional or statutory grounds" has a right to contest a permit decision before an administrative law judge. The FWPA confers the right to an adjudicatory hearing before an administrative law judge to a property owner who is denied a freshwater wetlands permit.

N.J.S.A. 13: 9B-20. It does not bestow a similar right to an abutting landowner who wants to prevent the issuance of such a permit. Without a statutory right to a trial-type hearing, the objectors must show that they have a "particularized property interest sufficient to require a hearing on constitutional . . . grounds." See N.J.S.A. 52: 14B-3.1, -3.2. (Pp. 11-14)

2. A storm water drainage system capable of capturing excess run-off from Maramark's property presumably would give the neighboring landowners no constitutional basis to complain that their properties were adversely affected. Clearly, in deciding whether to grant subdivision approval, the municipal planning board has jurisdiction over Maramark's storm water drainage plan. Unlike the hearing that the objectors received before the DEP in the freshwater permitting process, planning board hearings are trial-like and adversarial. In this case, the objectors participated in hearings before the Planning Board that spanned fourteen sessions from August 2002 through September 2005. They presented witnesses . . . and they presumably cross-examined the applicant's witnesses pursuant to N.J.S.A. 40: 55D-10(d). (Pp. 15-18)

3. Both the federal and state constitutions prohibit a State from depriving a person of property without due process of law. The process due in any particular case depends on the property interest at stake and the nature of the deprivation threatened by the State's action. Because due process is a flexible and fact-sensitive concept, its demands will be a function of what reason and justice require under the circumstances. In determining whether administrative procedures are "constitutionally sufficient," New Jersey courts have used different formulas, sometimes looking to the analysis set forth by the United States Supreme court in Mathews v. Eldridge. 424 U.S. 319 (1976). Other times, our courts have followed the "particularized property right" test set forth in Cunningham v. Department of Civil Service, 69 N.J. 13 (1975). In applying Mathews to administrative decision-making, courts in some jurisdictions have declined to afford the right to a trial-type hearing even to a landowner seeking a permit to develop his own property. Likewise, courts in other jurisdictions have denied trial-type hearings to aggrieved landowners who have complained about the issuance of a permit allowing a neighbor to develop his property. Following Cunningham, the Appellate Division has held that landowners objecting to the development of neighboring property do not have a particularized property interest warranting an adversarial hearing before an administrative law judge. (Pp. 18-25)

4. In the land-use permitting context, case law suggests that a third-party objector's due process rights may be satisfied by an agency's review process, even absent trial-type procedures. In this case, the objectors received a trial-type hearing before the Planning Board on Maramark's proposed drainage system. In the totality of the circumstances before us, we agree with the Appellate Division that the DEP's administrative procedures, which were subject to judicial review, satisfied the constitutional demands of due process. Moreover, because the threat to the objectors' properties by the issuance of a GP-6 permit is speculative, the objectors did not possess the type of "particularized property interest" that entitled them to a trial-type hearing under Cunningham. (Pp. 25-29)

The judgment of the Appellate Division is AFFIRMED.

CHIEF JUSTICE PORITZ and JUSTICES LONG, LaVECCHIA, ZAZZALI, WALLACE and RIVERA-SOTO join in JUSTICE ALBIN's opinion.

The opinion of the court was delivered by: Justice Albin

Argued September 27, 2005

Maramark Builders, L.L.C., owns a seven-acre wooded and undeveloped piece of property in Livingston Township on which it intends to build single-family residences. While seeking subdivision approval from the Livingston Township Planning Board, Maramark applied to the Department of Environmental Protection (DEP or Agency) for a freshwater wetlands permit to fill a portion of "isolated" wetlands on that property, pursuant to the Freshwater Wetlands Protection Act (FWPA), N.J.S.A. 13:9B-1 to -30. Petitioners are property owners and a community organization named Preserve Old Northfield (POND) who object to the issuance of the permit on the ground that the wetlands are not "isolated" and that filling them will exacerbate flooding conditions on their adjoining properties.

The DEP extensively examined the wetlands issue over a two-year period. The Agency considered the objectors' letters and environmental expert reports; conducted on-site inspections; and met with neighboring property owners, their expert, and their lawyers. At the end of that review process, the DEP issued Maramark a freshwater wetlands permit.

Before and after the DEP's issuance of the permit, the neighbors demanded a trial-type hearing before the Office of Administrative Law (OAL). The DEP responded that the neighbors had no statutory or constitutional right to such a hearing as part of the administrative permitting process. The Appellate Division concurred, finding that the neighbors' speculative claims of increased flooding did not give rise to a property interest cognizable under the federal or state constitution. Accordingly, the Appellate Division upheld the DEP's decision to deny the objectors an adversarial, adjudicatory hearing before an administrative law judge.*fn1

We affirm. The DEP's administrative review procedures for the issuance of a freshwater wetlands permit satisfied traditional notions of due process. The grant of a freshwater wetlands permit is only one part of a comprehensive land-use review process. In this case, the Planning Board has statutory responsibility to determine the adequacy of Maramark's proposed drainage system. For that reason, the neighbors' fear of flooding from the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.