August 10, 2007
CASTLE ROCK ESTATES, LLC, PLAINTIFF-APPELLANT,
THE STATE OF NEW JERSEY, THE DEPARTMENT OF ENVIRONMENTAL PROTECTION OF THE STATE OF NEW JERSEY, THE TOWNSHIP OF WEST MILFORD, THE GOVERNING BODY OF THE TOWNSHIP OF WEST MILFORD, AND THE PLANNING BOARD OF THE TOWNSHIP OF WEST MILFORD, DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-3218-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued June 5, 2007
Before Judges Skillman, Lisa and Holston, Jr.
Plaintiff Castle Rock Estates is the contract purchaser of a twenty-eight acre undeveloped tract of land in West Milford Township, Passaic County. In late 2003, Castle Rock applied to the West Milford Planning Board for preliminary major subdivision approval to subdivide its property into seventeen residential building lots. On January 4, 2004, the Board notified Castle Rock that it was required to obtain bulk variances. Castle Rock applied for the required variances on February 13, 2004, and three days of hearings on Castle Rock's application were held in March, April and May 2004. Castle Rock also applied to the Department of Environmental Protection (DEP) and other agencies for various permits required to proceed with its development project.
While Castle Rock's application was pending before the Planning Board, the bill that became the Highlands Water Protection and Planning Act (Highlands Act), N.J.S.A. 13:20-1 to -35, was introduced in the Legislature on March 29, 2004. This bill provided for the establishment of a state agency, called the Highlands Water Protection and Planning Council (Highlands Council), N.J.S.A. 13:20-4, which was delegated responsibility for land use planning in the Highlands Region, consisting of 800,000 acres in eighty-eight municipalities in northwestern New Jersey, including West Milford. The Highlands Act creates two areas within the Region: a preservation area, in which further development is strictly regulated, and a planning area, in which development consistent with the Act's goals is encouraged. See N.J.S.A. 13:20-7(b)(1); N.J.S.A. 13:20-10(b), (c). Castle Rock's property is located in the preservation area.
On June 10, 2004, the Senate and General Assembly passed the Highlands Act, and on August 10, 2004, the Governor signed the Act into law.
On May 6, 2004, during the period the bill that became the Highlands Act was proceeding through the Legislature, the Board granted Castle Rock subdivision approval to create sixteen lots, fifteen of them residential building lots, on its property. However, the Highlands Act only exempts from its provisions a major Highlands development project that obtained preliminary subdivision or other required approval under the Municipal Land Use Law, N.J.S.A. 40:55D-1 to -129, and one of a list of designated approvals from the DEP, before the Act was introduced in the Legislature on March 29, 2004. N.J.S.A. 13:20-28. Therefore, Castle Rock's proposed subdivision is subject to the Highlands permitting review program provided under N.J.S.A. 13:20-33 even though it obtained preliminary subdivision approval while the Act was pending before the Legislature.
In addition, Castle Rock's application for a General Permit No. 6 under the Freshwater Wetlands Protection Act, N.J.S.A. 13:9B-1 to -30, was pending before the DEP at the time of enactment of the Highlands Act. Shortly thereafter, the DEP notified Castle Rock by letter that under the Act it was no longer eligible for the General Permit No. 6 wetlands permit for which it had applied. The letter included detailed instructions as to how Castle Rock could obtain the required approvals for its development project under the Act.
Castle Rock requested an adjudicatory hearing before the Office of Administrative Law to challenge this ruling. On May 10, 2005, the DEP sent a letter to Castle Rock denying the request for an adjudicatory hearing as to the unavailability of the wetlands permit. Castle Rock appealed the denial of a adjudicatory hearing to this court, and we affirmed the DEP's final decision in an unreported opinion. In re Castle Rock Estates, No. A-5564-04T1 (decided July 19, 2006). We stated in the course of our opinion:
Not until May 6, 2004, did appellant receive preliminary subdivision approval to divide the property into residential lots, and because of this, development of the property is subject to the permit requirements of the Act. The Act went into effect on August 10, 2004, and established environmental standards for development in the preservation area. It also required a Highlands Preservation Area Approval for major development within the Preservation area.
. . . Appellant's request clearly was within the Preservation Area of the Highlands Region, pursuant to N.J.S.A. 13:20-7, and therefore required Highlands approval. No issue of disputed fact could be adjudicated in the Office of Administrative Law, and the action of the Department of May 10, 2005, denying appellant's hearing request is affirmed.
However, our opinion noted that we were not passing on the constitutional issues presented in this action, which had been filed approximately a year after enactment of the Highlands Act.
Castle Rock's complaint consisted of 328 numbered paragraphs and asserted 78 "claims for relief." The complaint claimed that the Highlands Act is unconstitutional in various respects both on its face and as applied to Castle Rock's property. The complaint also asserted claims against West Milford and the Board based on alleged intentional delays by municipal officials in considering plaintiff's application for preliminary subdivision and variance approval, which was granted after the March 29, 2004 cutoff date for approvals that were exempt from the Highlands Act restrictions.
The case was brought before the trial court by motions for summary judgment, which eventually resulted in the dismissal of all of Castle Rock's claims. The court also denied Castle Rock's motion to file a second amended complaint asserting additional federal constitutional claims.
On appeal from the orders dismissing its complaint and denying its motion to amend its complaint, Castle Rock presents the following arguments:
I. SINCE THE PROCEDURES FOR RESOLVING DISPUTES BETWEEN ORDINARY CITIZENS AND THE SOVEREIGN UNDER THE HIGHLANDS ACT CONTRAVENE THE FEDERAL DUE PROCESS GUARANTEE, AS A MATTER OF FEDERAL CONSTITUTIONAL LAW, THE TRIAL COURTS COMMITTED REVERSIBLE ERROR IN DISMISSING - AND IN FAILING TO GRANT PARTIAL SUMMARY JUDGMENT - ON THE SIXTY-SECOND, SEVENTY-FIFTH AND SEVENTY-SIXTH CLAIMS FOR RELIEF.
[B.] The Highlands Act Absolutely Prohibits Pre-Enforcement Judicial Review Of All Legal Issues Raised By Persons, But Permits Pre-Enforcement Judicial Review Of All Legal Questions Raised By The Sovereign.
[C.] The Highlands Act Absolutely Precludes Judicial Review Of All Legal Issues Raised By Citizens Prior To The Mandatory Imposition Of Serious Civil Sanctions On Them.
[D.] Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994) Mandates The Invalidation Of N.J.S.A. 13:20-17(a)(2), N.J.S.A. 13:20-25, N.J.S.A. 13:20-35(a), N.J.S.A. 13:20-35(c) And N.J.S.A. 13:20-35(d) On Federal Due Process Grounds.
[E.] Application Of The Tripartite Test Enunciated In Matthews V. Eldridge, 424 U.S. 319 (1976) Compellingly Induces The Conclusion That N.J.S.A. 13:20-17(a)(2), N.J.S.A. 13:20-25, N.J.S.A. 13:20-35(a), N.J.S.A. 13:20-35c And N.J.S.A. 13:20-35(d) Contravene The Federal Due Process Guarantee.
 The Private Interests That Have Been, And Will Be, Affected By Government Action Are Very Critical.
 The Risk Of Erroneous Deprivations Of Citizens' Property Interests From Application Of The Unfair Procedures Contained In The Highlands Act Is Very Substantial, And The Value of Additional Safeguards Is Very Considerable.
 The State's Interests Will Be Promoted By Pre-Deprivation Review.
[F.] The Highlands Act Authorizes The Sovereign To Expose Citizens To Criminal Sanctions After It Has Already Imposed Serious Civil Penalties On Them Prior To Judicial Review.
[G.] The Highlands Act Permits All Causes Of Action Relating To The Regulatory Scheme To Proceed In A Summary Manner Under R. 4:67.
II. SINCE APPELLANT WAS DEPRIVED OF A MEANINGFUL OPPORTUNITY TO BE HEARD ON THE AS APPLIED CLAIMS FOR RELIEF SET FORTH IN THE AMENDED COMPLAINT, THE TRIAL COURTS VIOLATED APPELLANT'S FEDERAL CONSTITUTIONAL RIGHT OF DUE PROCESS OF LAW.
III. THE TRIAL COURT ERRED REVERSIBLY IN DISMISSING APPELLANT'S CAUSE OF ACTION FOR A GOVERNMENTAL TAKING OF ITS PROPERTY WITHOUT JUST COMPENSATION ON THE GROUNDS OF RIPENESS AND FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES.
IV. SINCE THE RETROACTIVE PROVISION OF N.J.S.A. 13:20-28(a)(3) IS IRRATIONAL AND FUNDAMENTALLY UNFAIR, IT VIOLATES THE FEDERAL DUE PROCESS GUARANTEE AND, THEREFORE, THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DISMISSING THE TWENTY-FIRST CLAIM FOR RELIEF.
V. THE ABSOLUTE IMMUNITY OF STATE PROJECTS FROM THE HIGHLANDS ACT BASED UPON AN AD HOC DECISION BY A COMPETING BUREAUCRAT THAT THE PROJECT IS NECESSARY FOR THE PUBLIC INTEREST, REGARDLESS OF THE PROJECT'S EFFECT UPON THE ESSENTIAL SOURCES OF DRINKING WATER IN NEW JERSEY, IS IRRATIONAL, AS A MATTER OF FEDERAL CONSTITUTIONAL LAW AND, THEREFORE, THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DISMISSING THE THIRTY-NINTH THROUGH FORTY-FOURTH CLAIMS FOR RELIEF.
VI. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DENYING PLAINTIFF LEAVE TO FILE THE SECOND AMENDED COMPLAINT.
VII. SINCE THE NOTICE PROVISIONS OF THE TORT CLAIMS ACT CANNOT BE RELIED ON AS A DEFENSE TO A CIVIL RIGHTS CLAIM UNDER 42 U.S.C. SECTION 1983, THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN GRANTING THE TOWNSHIP DEFENDANTS' MOTION TO DISMISS ON THAT BASIS.
Simultaneous with the filing of this opinion, we are filing our opinion in OFP, L.L.C. v. State, ___ N.J. Super. ___ (App. Div. 2007), which also involved challenges to the constitutionality of the Highlands Act. The arguments Castle Rock presents in Points III and IV of its brief are similar to arguments addressed in sections I and II(A) of the OFP opinion, and we reject those arguments substantially for the reasons set forth in OFP.
We affirm the dismissal as untimely of Castle Rock's state law claims against West Milford and its Planning Board substantially for the reasons set forth in Judge Sokalski's May 10, 2006 oral opinion. Although the single federal claim set forth in Castle Rock's amended complaint was not subject to the notice provisions of the Tort Claims Act, N.J.S.A. 59:1-1 to -7, this claim is patently without merit. See R. 2:11-3(e)(1)(E). Therefore, Castle Rock's federal claim was also properly dismissed.
Our review of the trial court's denial of Castle Rock's motion for leave to file a second amended complaint asserting additional federal claims is limited to determining whether the court abused its discretion. Brown v. Twp. of Old Bridge, 319 N.J. Super. 476, 513 (App. Div.), certif. denied, 162 N.J. 131 (1999). When Castle Rock filed its motion to amend, this action had been pending for eight months and the discovery end date had passed. Furthermore, Castle Rock did not make even a prima facie showing that any of the new federal claims it sought to assert had any merit. See Interchange State Bank v. Rinaldi, 303 N.J. Super. 239, 257 (App. Div. 1997) (noting that "there is no point in permitting the filing of an amended pleading when a subsequent motion to dismiss must be granted") (quoting Mustilli v. Mustilli, 287 N.J. Super. 605, 607 (Ch. Div. 1995)). Therefore, we conclude that the trial court did not abuse its discretion in denying Castle Rock's motion to file a second amended complaint.
The arguments that Castle Rock presents under Points I, II and V of its brief are clearly without merit. R. 2:11-3(e)(1)(E). Only one of those arguments warrants short discussion. Castle Rock's primary argument in Point I is that the Highlands Act violates the Due Process Clause of the Fourteenth Amendment because it authorizes the Commissioner of the DEP to impose monetary penalties for violations of the Act without any opportunity for administrative or judicial review.
However, the Act in fact provides an opportunity for both administrative and judicial review of any decision by the DEP.
N.J.S.A. 13:20-35(b)(5) plainly states that whenever the Commissioner issues an order citing a person for violation of the Act, any implementing regulation, or a Highlands permit, the Commissioner shall describe the violation, require compliance or restoration and "provid[e] notice to the person of the right to a hearing on the matters contained in the order." (Emphasis added.) N.J.S.A. 13:20-35(d)(4) provides that if the Commissioner issues a notice of civil administrative penalty for a violation of the Act, its rules, or a Highlands permit, the Commissioner must notify the violator in writing of the facts alleged, the amount of the penalty to be imposed and "affirm the rights of the alleged violator to a hearing." (Emphasis added.) The right to judicial review of any final decision by a state administrative agency is specifically protected by the New Jersey Constitution and implementing court rules. N.J. Const. art. VI, § 5, par. 4; R. 2:2-3(a)(2); R. 2:2-4; see In re Senior Appeals Examiners, 60 N.J. 356, 363 (1972). Even if there were ambiguity in the Act (and we do not find such ambiguity), it would have to be read to preserve the constitutionally protected right to administrative and judicial review of administrative action. See In re Grant of Charter Sch. Application of Englewood on Palisades Charter Sch., 164 N.J. 316, 329 (2000) (noting that "[t]he Legislature is presumed to have full knowledge of, and to act consistently with, the constitution's requirements"). Therefore, we reject Castle Rock's argument that the Highlands Act provides for the imposition of administrative penalties without any opportunity for "pre-enforcement judicial review." See Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 216-18, 114 S.Ct. 771, 780-81, 127 L.Ed. 2d 29, 43-44 (1994).
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