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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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, ...