On appeal from Superior Court of New Jersey Law Division, Monmouth County, L-642-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 23, 2007
Before Judges Payne and Graves.
An environmental group, the Shark River Cleanup Coalition (SRCC), appeals from the dismissal by Judge Perri, for failure to state a cause of action, of the SRCC's first-amended verified complaint against defendants Chelsea Property Group, Inc. and CPG Tinton Falls Urban Renewal, LLC (together, Chelsea), the developers of a retail outlet center, instituted pursuant to the New Jersey Environmental Rights Act (ERA), N.J.S.A. 2A:35A-1 to -14.
It is the SRCC's contention that Chelsea was required to comply with municipal stormwater runoff ordinance no. 40:68, adopted by the Borough of Tinton Falls on May 3, 2005 and effective on that date, that would have required the maintenance of an undeveloped three-hundred-foot buffer to protect the water quality of a tributary of the Shark River.
The ordinance provides that it "shall be applicable to any site plan or subdivision application that requires preliminary or final review after the effective date of the adoption of this ordinance." Id. 40:68.1B. The ordinance further states:
Major development that has received one of the following approvals pursuant to the Municipal Land Use Law: preliminary or final site plan approval . . . prior to the effective date of the adoption of this ordinance, is exempt from the rules of this ordinance.
If any of the above approvals is amended, revised or expires, exemption shall be deemed void, and the project in its entirety shall comply with the rules of this ordinance. [Id. 40:68.1C.]
Chelsea received preliminary site plan approval for its outlet project on January 5, 2005, prior to the adoption of the ordinance, and on May 11, 2005, it was granted final site plan approval. Although the record does not contain a copy of the resolution granting final site plan approval, SRCC asserts without contradiction that paragraph 14 noted that Chelsea had applied for various wetlands and other permits from the New Jersey Department of Environmental Protection (NJDEP), that its applications remained pending and, "in the event that these NJDEP permits or other required approvals result in any changes to the site plan, then Chelsea must submit an application for amended site plan approval to the Planning Board. Th[is] will be set forth as a condition of approval."
On June 20, 2005, the NJDEP classified the Shark River Brook and its named tributaries, including one crossing Chelsea's property, as Category One (C1) waterways requiring a three-hundred-foot buffer. N.J.A.C. 7:9B-1.4 and -1.15. Prior to that date, on May 18, 2005, the permits sought by Chelsea were denied by the NJDEP. Chelsea revised its plans and reapplied to the DEP on May 27, 2005. Although its application was expedited, no action occurred before June 20, 2005, the effective date of the relevant NJDEP C1 designation. The application was therefore denied by the NJDEP as the result of failure to comply with the C1 buffer requirements.
Chelsea thereupon modified its plans to avoid the application of NJDEP requirements, and on October 4, 2005, it was informed by the NJDEP that no permits were required, and that the NJDEP did not have jurisdiction over Chelsea's proposed development. Chelsea did not seek further site plan review by the Tinton Falls Planning Board, and none was requested by the Board.
A verified complaint was filed against Chelsea by the SRCC on February 9, 2006, and a first-amended verified complaint was filed on February 21, 2006. In that amended complaint, the SRCC alleged that Chelsea was in violation of the Tinton Falls stormwater ordinance, and it sought temporary and permanent restraints prohibiting Chelsea from any further violation of the ordinance.
A motion to dismiss the complaint on the pleadings, pursuant to R. 4:6-2(e), was filed by Chelsea on March 31, 2006 and granted on May 1, 2006. An appeal was filed the next day. A subsequent motion by Chelsea for sanctions pursuant to N.J.S.A. 2A:15-59.1 and R. ...