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DiPaolo v. New Jersey Department of Environmental Protection

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 18, 2008

ANGELA DI PAOLO, APPELLANT,
v.
NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, LAND USE REGULATION PROGRAM, RESPONDENT.

On appeal from a Final Agency Decision of the New Jersey Department of Environmental Protection, Agency Docket Nos. 0322-03 -0003.1.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 12, 2007

Before Judges Payne, Sapp-Peterson and Messano.

In this appeal, petitioner Angela DiPaolo challenges the New Jersey Department of Environmental Protection's (DEP) decision, pursuant to the Freshwater Wetlands Protection Act (Act), N.J.S.A. 13:9B-1 to -30, and the Act's implementing regulations, N.J.A.C. 7:7A-1.1 to -17.1, reclassifying her property, which includes freshwater wetlands, as having "exceptional resource value," and its refusal to grant a transition area averaging plan waiver (TAW) and statewide general permits to construct a minor road crossing and an underground utility line. We affirm the final decision of the Commissioner of DEP substantially for the reasons given in his written opinion of May 23, 2005. We conclude that Commissioner Campbell's decision was consistent with his legal authority and supported by substantial credible evidence in the record.

The salient facts are not disputed and were stipulated by the parties as part of the administrative record in the hearing before an Administrative Law Judge (ALJ). In 1998, the DiPaolos purchased a 23.95-acre parcel of land in Moorestown (property). The property includes forest wetlands that are part of a larger contiguous block of wetlands. The DiPaolos planned to subdivide the property into four lots. On one lot the DiPaolos intended to build a home for their personal use, on another lot they planned to construct a home for family members, and they intended to sell the remaining two lots. In 1999 they requested a letter of interpretation (LOI) from DEP to verify the jurisdictional boundary of the freshwater wetlands located on their property. DEP's Land Use Regulation Program (LURP) issued an LOI on February 17, 1999 designating the freshwater lands bounding their property as areas having "intermediate resource value," which meant that the area was neither of "exceptional resource value" ("present habitats for threatened or endangered species, or those which are documented habitats for threatened or endangered species which remain suitable for breeding, resting or feeding by these species during the normal period these species would use the habitat[,]" N.J.S.A. 13:9B-7(a)(2); N.J.A.C. 7:7A-2.4(b)) nor of "ordinary resource value" (freshwater wetlands that "do not exhibit the characteristics" of those of "exceptional resource value" wetlands, and that "are certain isolated wetlands, man-made drainage ditches, swales, or detention facilities[,]" N.J.S.A. 13:9B-7(b)). In February 2002, the Moorestown Township Planning Board granted the DiPaolos preliminary and final subdivision approval for a four-lot subdivision.

In February 2003, the DiPaolos submitted their application to DEP for the requisite wetland approvals needed to continue with their subdivision plans. While this application was pending they also sought the renewal and extension of the 1999 LOI, which was about to expire. DEP reissued an LOI in June 2003 but, in doing so, reclassified the wetlands as having "exceptional resource value" due to the presence of a bald eagle nest within one kilometer of the DiPaolos property, a circumstance about which DEP became aware after it had issued the 1999 LOI. According to records from its Endangered and Non-Game Species Program, the nest was discovered sometime in 2000.

The reclassification affected the DiPaolos' proposed subdivision plan because it increased the transition area adjacent to the wetlands, changing it from fifty feet to 150 feet. DEP also denied the DiPaolo's application for a TAW and construction permits. The DiPaolos informally requested that DEP honor its previous designation of their property as having "intermediate resource value" because, in reliance upon the 1999 LOI, they had expended substantial funds to obtain subdivision approval and to subdivide their lots, including the demolition of an existing house. DEP denied this informal request.

On September 5, 2003, DEP denied the DiPaolos' application for the general permits and a TAW, stating:

1. The Project as proposed places all development within the 150-foot transition area and within the 75-foot maximum reduced transition area. As a result, the amount of disturbance to the transition area and the resulting reduced transition area will not serve the purpose and function of a transition area pursuant to N.J.A.C. 7:7A- 6.2(b) and as set forth in N.J.A.C. 7:7A-2.5(a) & (b), including the following: temporary refuge for freshwater wetlands fauna during high water episodes; habitat area for breeding, spawning, nesting and wintering for migratory, endangered, commercially and recreationally important wildlife; remediation and filtration area for removal of nutrients and pollutants prior to wetlands; an area which accommodates variations in wetlands boundary; a corridor for wildlife movement; and a buffer from human activities. Consequently, the proposed project does not comply with N.J.A.C. 7:7A-6.2(b)[(2)], (b)[(4)] and (d). . . . .

2. The project as proposed does not comply with N.J.A.C. 7:7A-4.3(3); wherein "proposed activities shall not destroy, jeopardize, or adversely modify a present or documented habitat for threatened or endangered species; and shall not jeopardize the continued existence of any local population of a threatened o[r] endangered species."

On October 15, 2003, petitioner requested an administrative hearing to contest the denials. DEP granted both of petitioner's administrative hearing requests and transmitted the matters to the Office of Administrative Law (OAL) as a contested case, pursuant to N.J.S.A. 52:14B-1 to -12. The ALJ consolidated the matters for a hearing. The issues before the ALJ were whether the reclassification of the DiPaolo property as having "exceptional resource value" was appropriate in light of unique circumstances surrounding the property and whether the denial of a TAW and the refusal to issue statewide general permits were appropriate.

David Moskowitz (Moskowitz), an environmental consultant and raptors expert, testified on behalf of the DiPaolos. He agreed that the classification of the property as having "exceptional resource value" was appropriate but characterized the Rancocas Eagles' nest as somewhat of an anomaly due to the fact that it is located in a very suburban area. According to Moskowitz, "[f]or most of the population, bald eagles tend to be sensitive to disturbance, and larger undisturbed areas are clearly preferred as the method of protection." He explained that recent data suggests that bald eagles are becoming, or may already be, tolerant of human disturbance. Based on the existing development in the area, Moskowitz opined that the Rancocas Eagles were "tolerant or very tolerant" of human behavior. In further support of his opinion, he noted that there has never been a documented sighting of a bald eagle on the DiPaolo property and also referenced DEP bald eagle observation notes, prepared by "volunteers that monitor each of the bald eagle nests." Those notes described activity around the nest and the eagles' reactions, or lack thereof, to such events as truck alarms and helicopters.

Moskowitz, however, agreed that the classification of the wetlands on the DiPaolo property as having "exceptional resource value" was appropriate because "[t]he wetlands are along Swedes Run, which bypasses near the nest and then flows through the DiPaolo property." He nonetheless opined that the construction of the three new homes proposed by petitioner, while a disturbance within the habitat, would not have a negative impact upon the Rancocas Eagles' nest, provided the construction was done outside the breeding and nesting seasons. He based this opinion on the fact that the nest is already surrounded by developments, some of which are of higher density than that proposed in the DiPaolo subdivision plan, and within visual range of the nest.

DEP called Laurence Torok (Torok), an employee of LURP and an expert in the habitats of threatened and endangered species, who participated in drafting DEP's Bald Eagle Protocol. Torok testified that the wetlands that bounded the DiPaolo property were documented habitats for bald eagles because of their proximity to the eagles' nest, and because they are part of the property's block of forest that provides an undisturbed interior with suitable trees for perching. Torok opined that construction of the three proposed homes on the property would have a negative impact on the bald eagle habitat because it would fragment the forest block, increase the human disturbance into the interior of the forest patch, and increase disturbance along the edge of the forest. Torok also believed that denial of the permit applications was reasonable because the proposed development plan for the property did not meet the criteria of the law.

On March 30, 2005, the ALJ issued an Initial Decision, recommending that the reclassification of the wetlands, and the denials of the issuance of a TAW and general permits be upheld. The judge observed that the matter was "fairly straight forward" because both parties agreed that most of the property falls inside the circumference established by DEP for the protection of bald eagle nests. The judge accepted Torok's opinion that the DiPaolo's development project would fragment contiguous forested wetlands, and specifically concluded that simply because "eagles in New Jersey may be learning to tolerate human population and the built environment is not a rationale for shrinking remaining habitat."

After the parties submitted exceptions to the Initial Decision, the Commissioner issued the agency's final decision. The Commissioner adopted the findings of the ALJ and affirmed the "exceptional resource value classification" and the denials of the TAW and general permits. The Commissioner found that the lack of a documented sighting of the Rancocas Eagles on the property did not affect the proper classification of the wetlands. In addition, the Commissioner concluded the Rancocas Eagles' alleged higher tolerance to human disturbance was irrelevant to the issue of whether the wetlands were properly classified as having "exceptional resource value." In affirming the ALJ's recommendation that the TAW and general permit denials be upheld, the Commissioner acknowledged that "even though the classification of freshwater wetlands as exceptional resource value does not per se preclude the issuance of any general permit . . . [,]" he noted that the general permits could not be issued without an accompanying TAW and that the TAW was properly denied because the DiPaolos' development plan proposed construction within the seventy-five-foot maximum-reduced transition zone.*fn1 The ensuing appeal followed.

On appeal petitioner contends the final agency decision upholding the reclassification of freshwater wetlands on her property as having "exceptional resource value" was arbitrary, capricious and unreasonable because the proposed development "met the requirements for [s]tatewide general permits." In addition, petitioner contends "the [a]gency failed to consider the unique circumstances involved with [the DiPaolo] property when applying legislative policy."

I.

Once an agency has issued a final decision, "the Appellate Division's initial review of that decision is a limited one." In re Taylor, 158 N.J. 644, 656 (1999). "We will not reverse an agency decision unless: (1) it was arbitrary, capricious, or unreasonable; (2) it violated express or implied legislative policies; (3) it offended the State or Federal Constitution; or (4) the findings on which it was based were not supported by substantial, credible evidence in the record." Univ. Cottage Club of Princeton N.J. Corp. v. N.J. Dep't of Envtl. Prot., 191 N.J. 38, 48 (2007) (citing Taylor, supra, 158 N.J. at 656).

"The fundamental consideration in reviewing agency actions is that a court may not substitute its judgment for the expertise of an agency so long as that action is statutorily authorized and not otherwise defective because [it is] arbitrary or unreasonable." In re Distrib. of Liquid Assets Upon Dissolution of the Union County Reg'l High Sch. Dist. No. 1, 168 N.J. 1, 10 (2001) (citation omitted) (internal quotation marks omitted). If, in reviewing an agency decision, we are satisfied that there is sufficient credible evidence in the record to support the agency's conclusions, we will uphold the decision irrespective of our view that we may have reached a different result on the same set of facts. Taylor, supra, 158 N.J. at 657.

Moreover, we accord substantial deference to an agency's interpretation of a statute or regulation that it is charged to enforce. In re Freshwater Wetlands Gen. Permit No. 16, 379 N.J. Super. 331, 341 (App. Div. 2005); In re Adopted Amendments to N.J.A.C. 7:7A-2.4, 365 N.J. Super. 255, 264 (App. Div. 2003). Our deference, however, is not unfettered and we are "'in no way bound by the agency's interpretation of a statute or its determination of a strictly legal issue.'" Univ. Cottage Club of Princeton N.J. Corp., supra, 191 N.J. at 48-49 (quoting Taylor, supra, 158 N.J. at 658).

II.

Against this legal framework we initially note that a challenge to a documented habitat classification of "exceptional resource value" requires a "demonstration of the long-term loss of one or more habitat requirements of the specific documented threatened or endangered species, including, but not limited to, wetlands size or overall habitat size, water quality, or vegetarian density or diversity." See N.J.A.C. 7:7A-2.4. Here, petitioner failed to demonstrate any such long-term loss. She does not dispute that her property includes freshwater wetlands. Nor does she dispute that the property is located within one kilometer of the bald eagle nest and that eagles are "endangered" species. Rather, petitioner urges the "exceptional resource value" classification was arbitrary, capricious and unreasonable because the Rancocas Eagle has demonstrated its tolerance to human activity; this unique circumstance contradicts the presumption that eagles need and prefer isolation from the human environment; and there have been no recent sightings of Rancocas Eagles on the property.

The Commissioner gave no credence to petitioner's contention that eagles are more tolerant to humans because they are nesting in suburban areas. The Commissioner noted that petitioner's property consisted of almost twenty-four acres that adjoined a farm and quoted petitioner's testimony before the ALJ describing the property as "part of a contiguous wooded area extending to the North and West of the nest. . . ." While acknowledging that some residential developments may be in "'direct view,'" the Commissioner concluded that based upon petitioner's own description, the area "hardly appears to be a highly developed suburban area." This finding is entitled to our deference. In re Freshwater Wetlands Gen. Permit No. 16, supra, 379 N.J. Super. at 341.

Likewise, citing N.J.S.A. 13:9B-7(a)(2), the Commissioner correctly noted that "the definition of habitat does not include an 'actual sighting' requirement of a threatened or endangered species on the subject wetlands." Further, as the Commissioner observed, petitioner's expert, Moskowitz, "conceded at the hearing that the classification of the property as exceptional resource value was 'technically appropriate' as the wetlands stood within the one-kilometer buffer zone." We discern no basis to interfere with these findings which are supported by substantial credible evidence in the record.

III.

Once the ALJ upheld the reclassification of petitioner's property as having exceptional resource value and the Commissioner having adopted those findings, the Commissioner found the ALJ was "constrained to uphold the denial of petitioner's [transition] waiver application." We agree.

The Act regulates activities within a transition area, which is defined as "an area of land adjacent to a freshwater wetland which minimizes adverse impact on the wetland or serves as an integral component of the wetlands ecosystem." N.J.S.A. 13:9B-3; N.J.S.A. 13:9B-17. A transition area, among other recognized purposes, serves as a "habitat area for activities such as breeding, spawning, nesting and wintering for migrating, endangered, commercially and recreationally important wildlife" and as a "buffer area to keep human activities at a distance from freshwater wetlands, thus reducing the impact of noise, traffic, and other direct and indirect human impacts on freshwater wetlands species." N.J.A.C. 7:7A-2.5(b)(2) & (5).

A freshwater wetland of "exceptional resource value" must have an adjacent transition area of 150 feet, which may be reduced to no less than seventy-five feet. N.J.S.A. 13:9B-16(b)(1); N.J.S.A. 13:9B-18(c). Petitioner's proposed subdivision entailed development within the seventy-five-foot maximum reduced transition area. Consequently, the Commissioner's decision's upholding the denial of the issuance of a TAW to petitioner was consistent with his legal authority and supported by substantial credible evidence in the record.

IV.

The Commissioner noted that the absence of a TAW "effectively eliminated the association of the general permit activities with a 'proposed project[,'] causing Petitioner's general permit applications to be fatally deficient." Petitioner urges that the ALJ failed to accord proper weight to Moskowitz' testimony that the eagle habitat would not be destroyed, jeopardized or adversely modified. See N.J.A.C. 7:7A-4.3(b). Essentially, petitioner takes exception to the ALJ's failure to give greater weight to Moskowitz' testimony than to the testimony of Torok or stated differently, petitioner believes that Moskowitz' opinion should have been accepted over Torok's opinion and, as a result, her application for issuance of the statewide general permits granted.

Determining the weight to accord an expert's testimony is clearly within the province of the fact finder. See Espinal v. Arias, 391 N.J. Super. 49, 58 (App. Div.), certif. denied, 192 N.J. 482 (2007). Torok testified that petitioner's wetlands provided a suitable habitat for eagles, a fact which petitioner's expert did not dispute. Although Moskowitz disputed Torok's ultimate conclusion that petitioner's proposed development project would fragment contiguous forested wetlands and increase human disturbance within the forest interior and along the forest edge, even he conceded that construction of the proposed three new homes would cause some disturbance within the habitat. The ALJ was entitled to accept Torok's testimony on this issue and reject Moskowitz' opinion. In accepting Torok's opinion the ALJ then correctly concluded that the proposed development project was inconsistent with the purposes of the Act to "provide essential breeding . . . habitats for a major portion of the State's fish and wildlife, including . . . endangered species . . . ." N.J.S.A. 13:9B-7(a)(2); N.J.A.C. 7:7A-4.1(b)(2). The Commissioner adopted these findings, and his conclusion that the ALJ properly upheld the denial of petitioner's general permit applications is amply supported by the substantial credible evidence in the record.

Affirmed.


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