On appeal from Superior Court of New Jersey, Chancery Division, Burlington County, Docket No. L-0050-04.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman, Axelrad and Sabatino.
The primary issue presented by this appeal is whether an applicant for a wetlands permit who proposes to mitigate the adverse impact upon wetlands of a development project on its property at an off-site location must give notice to owners of property within 200 feet of the mitigation site. We conclude that such notice is required if the proposed wetlands mitigation project involves the disturbance of existing wetlands. This appeal also involves issues concerning the availability of injunctive relief to parties who claim that a mitigation project has caused damage to their property and the proper allocation of jurisdiction within the Superior Court over claims against private parties joined in the same complaint as a challenge to a final decision of a State administrative agency.
In 2001, a predecessor in title to defendants RLR Investment, LLC and R&L Carriers (referred to collectively as R&L) applied to the Department of Environmental Protection (DEP) for a freshwater wetlands permit to construct an access road to a proposed trucking facility in Burlington Township. A wetlands permit was required because the proposed road would pass through freshwater wetlands regulated under the Freshwater Wetlands Protection Act (FWPA), N.J.S.A. 13:9B-1 to -30.
Because the proposed road would adversely impact wetlands, R&L was required to submit a wetlands mitigation proposal. To satisfy this requirement, R&L proposed to create forested wetlands and enhance existing agricultural wetlands on another property located in Springfield Township.
Plaintiffs own a 152-acre farm that abuts the property on which R&L proposed to construct this mitigation project. However, plaintiffs were not given any notice of R&L's application to the DEP for approval of the project.
On September 23, 2003, the DEP granted R&L's application for a wetlands permit authorizing construction of the access road, subject to the condition that R&L mitigate for the wetlands disturbance on this site through "creation of 1.197 acres of forested wetlands at an off-site wetland mitigation project . . . conducted prior to or concurrent with the construction of [the access road]." This permit was subsequently amended to require creation of 2.394 acres rather than 1.197 acres of forested wetlands on the mitigation site.
By a letter dated January 30, 2004, the DEP approved R&L's proposed wetlands mitigation project for the Springfield Township site.
Plaintiffs first became aware of R&L's proposed wetlands mitigation project around the time of this approval, when a person representing R&L called plaintiff Matthew Rinaldo. According to Rinaldo, he then called the DEP and spoke to an official who assured him that there were various unresolved issues regarding the mitigation project, which he would have "plenty of opportunity to address" before the project went forward. However, less than two months later, on March 15, 2004, workmen appeared on the site with construction machinery, including a backhoe, bulldozer, roller and earth moving dump trucks, and began construction of the project. On March 18, 2004, Rinaldo sent a letter to the DEP objecting to the commencement of the mitigation project, which he claims was ignored.
On April 5, 2004, plaintiffs brought this action in the Chancery Division, seeking to enjoin continued construction of the mitigation project, a mandatory injunction requiring repair and restoration of the damage R&L had already done to their property, and money damages. Plaintiffs alleged that the workers constructing the project had built a fifty-foot wide road extending the entire southern length of their property and, in the course of building this road, trampled and crushed bushes, cut down and thinned out trees, and elevated the ground with rocks and fill. Plaintiffs also alleged that the workers drove construction machinery over their farmland, crushing and trampling vegetation. They further alleged that the workers dug holes in the ground and placed pink flags around a pond, the rear tree line and fields on their property.
The complaint named not only RLR Investments and R&L Carriers as defendants, but also James N. Gray Company and Greenvest, which were involved in the design, planning and construction of the mitigation project, and the owner of the property, 206 Associates. The complaint asserted various tort claims against these defendants, including trespass, intentional interference with property rights, nuisance, conversion of water supply and negligence. In addition, the complaint joined the DEP as a defendant and sought a declaration that the DEP's approvals of R&L's wetlands permit and mitigation project were invalid.
When plaintiffs filed their complaint, the trial court signed an order to show cause that restrained defendants from entering plaintiffs' property, but denied plaintiffs' application to restrain continued construction of the wetlands mitigation project on the 206 Associates property. Plaintiffs' application for a preliminary injunction was not heard until more than three months later, on July 14, 2004. By then, construction of the wetlands mitigation project had been completed.
On the return date, the trial court continued the restraint barring R&L from entering plaintiffs' property, but denied plaintiffs' application for preliminary injunctive relief in all other respects. The court stated that plaintiffs had not presented evidence that the wetlands mitigation project had caused or would cause damage to their property "for which pecuniary damages are insufficient," and in any event, plaintiffs' application to enjoin "continuation of the wetlands project appear[ed] to be moot" because the project had been completed.
On that same date, the trial court also heard the DEP's motion to dismiss plaintiffs' complaint because it challenged final decisions of a state administrative agency over which the Appellate Division has exclusive jurisdiction. The trial court initially indicated that it would transfer the counts of plaintiffs' complaint that challenged the DEP's grant of the wetlands permit and mitigation project approval to this court and the remaining counts to the Law ...