June 6, 2008
NORTH BYRAM CONCERNED CITIZENS, NEW JERSEY HIGHLANDS COALITION, THE NEW JERSEY ENVIRONMENTAL FEDERATION, APPELLANTS,
NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, RESPONDENT.
SIERRA CLUB-NEW JERSEY CHAPTER, INTERVENOR-APPELLANT.
On appeal from the New Jersey Department of Environmental Protection.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 6, 2008
Before Judges Skillman, Winkelstein and Yannotti.
Appellants North Byram Concerned Citizens (NBCC), the New Jersey Highlands Coalition (NJHC), New Jersey Environmental Federation (NJEF), and intervenor Sierra Club-New Jersey Chapter (SCNJ) appeal from a final determination of the New Jersey Department of Environmental Protection (DEP), which found that a portion of the Route 206 reconstruction and widening project in Byram Township is exempt from regulation under the Highlands Water Protection and Planning Act, N.J.S.A. 13:20-1 to -35 (the Highlands Act or the Act). For the reasons that follow, we affirm.
The Highlands Act was enacted to provide a "comprehensive approach to the protection of the water and other natural resources" in the Highlands region, which consists of nearly 800,000 acres in eighty-eight municipalities in parts of seven counties of the State. N.J.S.A. 13:20-2. The Highlands Act created "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." OFP, L.L.C. v. State, 395 N.J. Super. 571, 576 (App. Div.), certif. granted, 193 N.J. 277 (2007).
The Act established a Highlands Water Protection and Planning Council (the Highlands Council), which is required to adopt a regional master plan for the Highlands region. N.J.S.A. 13:20-4; N.J.S.A. 13:20-6(i); N.J.S.A. 13:20-8. In addition, the DEP is required to adopt rules and regulations to establish environmental standards for the preservation area. N.J.S.A. 13:20-32. The DEP also must "establish a Highlands permitting review program to provide for the coordinated review of any major Highlands development in the preservation area based" upon the DEP's rules and regulations. N.J.S.A. 13:20-33(a).
The Act provides that certain projects and activities are exempt from its provisions. N.J.S.A. 13:20-28(a). The projects and activities exempted include (9) the routine maintenance and operations, rehabilitation, . . . or repair of transportation or infrastructure systems by a State entity or local government unit, provided that the activity is consistent with the goals and purposes of [the Highlands Act] and does not result in the construction of any new through-capacity travel lanes; [and] (10) the construction of transportation safety projects and bicycle and pedestrian facilities by a State entity or local government unit, provided that the activity does not result in the construction of any new through-capacity travel lanes[.]
The DEP has adopted rules in furtherance of its responsibilities under the Act. N.J.A.C. 7:38-1.1 to -14.2.
The regulations provide, among other things, that work may not commence on any "major Highlands development" within the preservation area unless the DEP has issued a Highlands Applicability Determination and/or a Highlands Preservation Area Approval. N.J.A.C. 7:38-2.2(a). According to N.J.A.C. 7:38-2.4(b), persons proposing to undertake any activity in the preservation area that requires land use or water permits from the DEP must either stipulate that the project is subject to regulation under the Highlands Act, or obtain a Highlands Applicability Determination that the project or activity is exempt from regulation under the Act.
The DEP's regulations incorporate the statutory exemptions, including the exemption for routine maintenance and repair of transportation systems, N.J.A.C. 7:28-2.3(a)(9), and for transportation safety projects, and bicycle and pedestrian facilities, N.J.A.C. 7:28-2.3(a)(10). In addition, the DEP's regulations amplify the grounds for granting these exemptions. See N.J.A.C. 7:38-2.4(b)(2), (3), (4) and (5).
On September 21, 2005, the New Jersey Department of Transportation (DOT) filed an application with the DEP seeking a Highlands Applicability Determination. The DOT stated that the portion of its Route 206 improvement project in Byram Township constituted a "major Highlands development" under the Highlands Act but was exempt from regulation pursuant to N.J.S.A. 13:20-28(a)(9) because the project constitutes the routine maintenance and repair of a transportation system.
According to the application, the DOT intends to make improvements to Route 206 in Sussex County. The overall length of the project is 8,658 feet, of which 1,233 feet (approximately 14%) is within the preservation area. The DOT stated that it intends to reconstruct, realign, widen and make other operational and safety improvements to the highway from Acorn Street (at milepost 98.4) to just north of the Waterloo Inn (at milepost 99.57) within Byram Township.
The DOT stated that the Route 206 project in Byram Township would affect two distinct areas in the preservation area. In the first area, the DOT will be constructing a new cross-culvert and a new stormwater management control basin. The DOT stated, "[n]o new through capacity travel lanes are being constructed at this location."
The DOT additionally stated that, in the second area, it will be widening the highway to provide a left-turn lane, constructing a four-foot wide raised island with a three-foot wide inside shoulder, and constructing two inside lanes, two outside lanes, as well as a two-foot wide drainage conveyance area. The DOT indicated, "[t]he widening is not adding a new through-capacity travel lane, yet is adding a center turn lane and auxiliary lanes to increase the traffic volumes through the Waterloo/Brookwood Road signalized intersection."
In accordance with N.J.A.C. 7:38-9.2(b), the DOT provided notice of its application to Byram Township, the Highlands Council, the Byram Township Planning Board, the Byram Township Construction Official, the Byram Township Environmental Commission and the Sussex County Planning Division. By letter dated September 30, 2005, the DEP deemed the application complete and on October 19, 2005, the DEP published notice of the application and invited public comment. Comments were submitted by Byram Township, the NBCC, the Tri-State Transportation Campaign (TSTC), and others interested in the proposal.
The DEP issued a determination dated August 9, 2006, in which it noted that most of the Route 206 project was located outside of the Highlands preservation area. The DEP limited its determination to the section of the project within the preservation area. The DEP found that project was a "major Highlands development" as that term is defined in the Highlands Act and the DEP's regulation. The DEP further concluded that the exemption under N.J.S.A. 13:20-28(a)(9) did not apply because "the proposed widening of the roadway to accommodate the expansion from two to five lanes in the Planning Area does not constitute the routine maintenance and operations, rehabilitation, preservation, reconstruction or repair of a transportation or infrastructure system."
The DEP found, however, that the project was exempt from regulation under the exemption in N.J.S.A. 13:20-28(a)(10) for "transportation safety projects and bicycle and pedestrian facilities." The DEP noted that the DOT's project did not involve the construction of any "through-capacity travel lanes" in the preservation area. The DEP stated, "[t]he portions of the project in the Preservation Area propose lane widening to allow for safe merging of traffic onto the sections of the roadway where additional lanes are proposed in the Planning Area."
The NBCC, the NJHC, and the NJEF filed a notice of appeal on September 25, 2006. On January 10, 2007, the SCNJ filed a motion to intervene as an appellant. We granted that motion by order entered on February 27, 2007. In April 2007, the DEP moved for a temporary remand to permit re-publication of notice of the DOT application and the opportunity for additional public comment on the application. We entered an order on May 10, 2007, granting the DEP's motion.
On July 5, 2007, the DOT amended its application to seek an exemption of the portion of the project in the preservation area on the ground that it involved the construction of transportation safety improvements and pedestrian facilities. The DOT stated, "[t]o the greatest practical extent, most encroachments into the Highlands Preservation Area have been eliminated or minimized by redesigning the intersection of Route 206 at Waterloo and Brookwood Roads, utilizing retaining walls and by relocating a proposed stormwater management basin outside that area." The DOT addressed the impact that the project would have in five areas.
The DOT stated that Area #1, which is located at milepost 99.5, had a "documented history of flooding." According to the DOT, the flooding poses "a risk for accidents during wet and wintry weather conditions, given the steep grade of the highway and associated flooding." The DOT stated that it would be constructing a culvert that will mitigate the flooding.
The DOT additionally stated that in Area #2, which is located between mileposts 99.4 and 99.5, the improvements would address three safety considerations. The DOT stated that this portion of the project would (1) . . . provide a proper transition taper of the auxiliary lane proposed to permit left turns from Byram Plaza (a large existing retail establishment) onto Route 206 southbound; (2) . . . accommodate the proposed left-turn configuration at Byram Plaza, which will be safer for motorists by providing a protected left-turn lane; and, (3) . . . provide an adequate superelevation for the highway's horizontal curve.
Area #3 of the project is at milepost 98.9. The DOT said that the improvements proposed in this area involve "slope and roadway improvements" in the preservation area that will provide "adequate site distance from Netcong Avenue to Route 206[.]" The DOT stated that these improvements would enable motorists to enter and exit the highway more safely and also provide a sidewalk for pedestrians along the southbound side of the road.
The DOT also stated that in Area #4, which is located at milepost 98.8, the improvements involve the replacement of an existing structure at Lubbers Run "to accommodate the transition taper for the proposed dedicated left-turn lane" where the highway intersects with Waterloo and Brookwood Roads. The DOT asserted that the proposed structure would be wide enough to accommodate a future pedestrian tunnel under the road. In addition, the improvements include a "pull-off area for emergency fire vehicles to draw water from Lubbers Run, if needed for a fire emergency."
Area #5 is located at Waterloo Road. The DOT stated that the proposed improvements in this area "would cause minor impacts" in the preservation area. These "impacts" are associated with "a taper area needed to transition back to the existing roadway limits" as well as certain "[m]inor drainage improvements . . . within the taper area, to promote safer conditions during wet weather conditions." Within the taper area, the DOT will be re-grading 99.8 square feet of an existing gravel driveway to meet the proposed roadway grade, at the point where two new left-turn lanes will be constructed. The DOT also will be extending a drainage pipe by 54.5 feet to connect with the existing drainage system along Waterloo Road.
On July 25, 2007, the DEP published notice of the DOT's revised application and invited public comment. Byram Township submitted comments in which it noted that the project addressed some of its safety concerns. The Township stated, however, that it found some of the DOT's design elements, "especially those that flatten, widen, and straighten the roadway throughout its one-plus mile length, will actually promote greater speeds and therefore result in a potentially less safe roadway." The Township stated that the DOT proposal raised the possibility that, at some later date, the shoulder areas would be redesignated for through-capacity travel. The Township stated that the DEP should establish "a clear and objective standard" for a determination of when the shoulder area could be opened to through-capacity travel.
The NBCC, the NJEF, the SCNJ, the TSTC and certain other entities jointly submitted comments. These entities opposed what they viewed as an effort by the DOT "to circumvent the spirit and intent of the Highlands Act by attempting to disguise a roadway widening and addition of [through]-capacity lanes on Route 206 through Byram Township as a 'safety project.'" These entities asserted that the DOT could make various safety improvements to the highway without the need for adding pavement for what was characterized as "through-capacity" travel.
They also stated that the DOT failed to present any traffic studies, accident reports, or any factual basis to support their claim that the project was a "needed" safety improvement. They asserted that the improvements to the highway would result in vehicles traveling at higher speeds with the potential for increased vehicular and pedestrian accidents. They further asserted that there were no "hard facts, studies, data or reports anywhere in this application to indicate the requirement for such a major widening, and a transformation from a rural, 2-lane thoroughfare to a wide, flat and straight 5-lane highway to achieve the goals of increased safety."
The DEP issued a revised determination dated October 1, 2007, in which it concluded that the portion of the Route 206 project in the preservation area is exempt from the Act pursuant to N.J.S.A. 13:20-28(a)(10). The DEP found that the improvements in the preservation area "are intended to provide safer merging conditions; eliminate an existing substandard taper during peak travel periods; improve visibility; and improve stormwater drainage to promote better pavement conditions during storm events."
Appellants first argue that they were not afforded notice and the opportunity to comment on whether the section of the Route 206 project in the Preservation Area qualifies for an exemption under N.J.S.A. 13:20-28(a)(10). We note that this argument was raised in the brief filed by appellants before we granted the DEP's motion for a temporary remand.
As we stated previously, after the matter was remanded to the DEP, the DOT amended its application, the DEP published notice of the revised application, and the DEP invited public comment on the application. The record reveals that appellants availed themselves of the opportunity to submit comments on the revised application. Therefore, the issues raised by appellants as to the adequacy of notice and the opportunity to comment are moot.
We turn to appellants contention that there is insufficient evidence in the record to support the DEP's conclusion that the DOT's improvements to Route 206 in Byram Township are exempt from regulation under the Highlands Act pursuant to N.J.S.A. 13:20-28(a)(10). Appellants assert that the DOT's application failed to establish that the proposed improvements are needed to address any particular safety concerns. Appellants argue that the DEP's finding that the DOT will not construct new "through-capacity travel lanes" in the preservation area is not supported by the record and is arbitrary and capricious. In addition, appellants maintain that the DEP failed to make adequate findings of fact.
The actions of administrative agencies are entitled to a "strong presumption of reasonableness." Newark v. Natural Res. Council, 82 N.J. 530, 539 (1980). We will not substitute our judgment "for the expertise of an agency 'so long as [its] action is statutorily authorized and not otherwise . . . arbitrary or unreasonable.'" Williams v. Dep't of Human Servs., 116 N.J. 102, 107 (1989) (quoting Dougherty v. Dep't of Human Servs., 91 N.J. 1, 12 (1982)).
Consequently, our role in reviewing a final decision of an administrative agency is limited to three inquiries: 1) whether the agency's action is consistent with the governing statues and implied legislative policies; 2) whether there is substantial evidence in the record to support the agency's findings of fact; and 3) whether in applying the legislative policies to the facts, the agency reached a conclusion "that could not reasonably have been made after weighing the relevant factors." Id. at 108. Applying these principles of appellate review, we are convinced that the DEP's exemption determination must be affirmed.
We are satisfied that there is sufficient credible evidence in the record to support the DEP's finding that the portion of the Route 206 project at issue here is a exempt from regulation pursuant to N.J.S.A. 13:20-28(a)(10). In its amended application, the DOT detailed the improvements to be made to the roadway and identified the features of the project that are specifically intended to address transportation safety. The DOT also identified the proposed improvements to the pedestrian facilities.
As stated by the DOT, the "transportation safety" components of the project include the: 1) elimination of a substandard traffic merge on Route 206 at Acorn Street; 2) improvement of three existing horizontal curves to provide proper "superelevation transition"; 3) improvement to eight existing vertical curves to provide minimum curve lengths; 4) construction of sidewalks to improve pedestrian safety; 5) reduction of the speed limit to 35 miles per hour; 6) improvement of highway access and addition of a center turn lane to promote safe ingress and egress; 7) improvements at the intersection of Route 206 with Waterloo and Brookwood Roads by aligning the intersection, adding turning lanes, and improving traffic signal timings; 8) realignment of Lackawanna Drive with the Lockwood Tavern driveway access to provide safer ingress and egress, and the addition of dedicated turning lanes, new traffic signals and improved signal timings; 9) upgrading of the existing roadway guide rail to meet federal and state standards; 10) mitigation of roadway flooding; 11) delineation of crosswalks with a specialized paving treatment to improve pedestrian safety; 12) improvement of sight distance at the intersections of side streets with the highway; 13) improvement of the signals and pedestrian crossing at the Route 206 and Acorn Street intersection; and 14) improvements to signage throughout the project and lighting at intersections.
Appellants argue that the DOT failed to establish that the improvements to Route 206 in Byram Township are "needed" to address particular "transportation safety" concerns. However, the record supports the DEP's finding that the subject improvements will make transportation safer for motorists and pedestrians in the section of the highway in Byram Township. The improvements to the merge areas and the highway curves, the construction of pedestrian walkways, the measures to mitigate roadway flooding, and the improvements to the sight lines, lighting, and crosswalks, are all designed to make Route 206 and adjacent pedestrian areas in the Township safer.
Appellants also argue that there is insufficient evidence in the record to support the DEP's finding that the DOT will not be adding "through-capacity travel lanes" in the preservation area. The record shows that, at present, the section of Route 206 at issue consists of two "through-capacity travel lanes." The DOT intends to construct two additional lanes in Byram Township but those will be used as shoulders for merging traffic not as "through-capacity travel lanes." In addition, the DOT intends to add a turning lane in this section of the highway but that lane also will not be used as a "through-capacity travel lane."
Appellants note that additional "through-capacity travel lanes" have been or will be constructed in other sections of the Route 206 improvement project. Appellants suggest that, at some point in the future, the DOT can simply re-stripe the roadway in Byram Township and turn the shoulder lanes into "through- capacity travel lanes" thereby undermining the very basis upon which the DEP granted the exemption.
However, in its application for the exemption, the DOT stated that this section of the Route 206 project did not include any new "through-capacity travel lanes." Furthermore, in responding to the comments submitted by the SCNJ, the DEP stated, "[i]f the proposed twenty foot shoulders are located within the Preservation Area, they are not allowed to be through-capacity travel lanes. If [the shoulders] are changed to lanes, that will be in violation of the Highlands Act and NJDEP Enforcement Action can be taken."
Moreover, in its October 1, 2007 decision, the DEP stated that the exemption granted to the DOT shall be considered null and void if changes are made to the project that would increase the scope or area disturbed by the project, or result in a change in the use or change the method of wastewater treatment; or if the information submitted to obtain this determination from the Department is later determined to be inaccurate.
Appellants additionally argue that the DEP erred by engaging in what appellants claim is a "patchwork analysis" of the project. They maintain that, in determining whether the DOT is constructing new "through-capacity travel lanes," the DEP erred by limiting its review to the portion of the Route 206 project in Byram Township and should have considered the other parts of the project, including the improvements to the highway in the planning area.
However, the Highlands Act provides that the DEP must adopt rules and regulations "establishing environmental standards for the preservation area[.]" N.J.S.A. 13:20-32 (emphasis added). The Act also provides that the DEP is required to establish a permitting review program for "any major Highlands development in the preservation area[.]" N.J.S.A. 13:20-33(a) (emphasis added). The definition of "major Highlands development" in N.J.S.A. 13:20-3 only encompasses developments, activities and projects "in the preservation area[.]" Thus, the DEP's permitting authority under the Highlands Act is limited to developments in the preservation area.
We recognize that there may be situations where it would be reasonable for the DEP to take into account activities occurring outside of the preservation area when it determines whether a development in that area is exempt from regulation. However, this is not such a case. The record clearly establishes that, whatever improvements DOT may be making to Route 206, it will not be constructing new "through-capacity travel lanes" in Byram Township.
Appellants also argue that the DEP was required to adopt rules and regulations more clearly defining the terms "transportation safety project" and "through-capacity travel lanes." Again, we disagree.
As we stated previously, in N.J.A.C. 7:38-2.3(a)(10), the DEP incorporated the statutory exemption for "transportation safety projects and bicycle and pedestrian facilities" that is found in N.J.S.A. 13:20-28(a)(10). The DEP further explained the grounds for granting this exemption in N.J.A.C. 7:38-2.4(b)(5). The regulation states that an activity is exempt from regulation if it involves:
[t]he construction of transportation safety projects and bicycle and pedestrian facilities by a State entity or local government unit provided the activity does not:
i. Create a new travel lane or increase the length of an existing travel lane by more than 2,640 linear feet, not including tapers;
ii. Result in a cumulative increase in impervious surface of one acre or more; or
iii. Involve the ultimate disturbance of two or more acres of land[.] [Ibid.]
We are not convinced that the DEP is legally required to adopt additional rules to explain the meaning of term "transportation safety project" or to provide a more detailed definition of a "through-capacity travel lane" than that already provided in N.J.A.C. 7:38-2.4(b)(5). The term "transportation safety" should be given its commonly understood meaning. Moreover, the DEP has already provided an explanation of the term "through-capacity travel lane" in N.J.A.C. 7:38-2.4(b)(5). We are satisfied that appellants' argument is not of sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E).
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