August 1, 2008
IN THE MATTER OF FRESHWATER WETLANDS LETTER OF INTERPRETATION-RELIANCE DETERMINATION, APPLICANT/ PROJECT MEYERSON ASSOCIATES/ LANDMARK AT PRINCETON, PRINCETON TOWNSHIP, MERCER COUNTY.
On appeal from the Department of Environmental Protection, Division of Land Use Regulation, File No. 1110-05-0006.1 (FWW-060001).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: January 30, 2008
Before Judges Cuff, Lihotz and Simonelli.
This appeal, which is calendared back-to-back with Herrontown Woods Citizens Association v. Regional Planning Board of Princeton, A-1820-06T1, involves a challenge to a Freshwater Wetlands Letter of Interpretation (LOI) issued by the New Jersey Department of Environmental Protection (DEP) to Landmark of Princeton, L.L.C. (Landmark) for property on which Landmark intends to build a residential housing development. Appellant, Herrontown Woods Citizens Association (HWCA) objects to the development and submitted comments in opposition to Landmark's application for an LOI extension.
In seeking preliminary major subdivision and site plan approval, Landmark relied on an LOI issued in 2000. Because the LOI was set to expire before the Regional Planning Board of Princeton (Planning Board) rendered a final decision on the development application, Landmark applied to DEP for an extension of the 2000 LOI. DEP issued an LOI extension in 2006 that revised the wetlands delineation set forth in the 2000 LOI. Landmark subsequently requested, and was granted, permission to disregard the changed conditions noted in the 2006 LOI and to rely on the findings of the 2000 LOI.
HWCA argues that DEP had no legal basis to grant Landmark's reliance request. It further argues that there is no factual basis to support DEP's decision to allow Landmark to rely on the 2000 LOI. We hold that the 2006 LOI extension is not a final agency action and is not ripe for review.
In May 2000, Meyerson Associates, the owners of the subject site, submitted a Freshwater Wetlands LOI application to DEP for the property located at the northeast corner of Snowden Lane and Van Dyke Road in Princeton Township (the Landmark site). On September 1, 2000, DEP issued an LOI/Line Verification letter, confirming the boundaries of wetlands on the Landmark site and classifying those wetlands as intermediate resource value.
The 2000 LOI confirmed the existence of several freshwater wetlands on the Landmark site. Based on an August 29, 2000 site inspection, DEP verified that the western edge of the site was transversed from north to south by an unnamed tributary of Harry's Brook and that a few wetlands were associated with this tributary. The northern edge of the site was transversed from east to west by a man-made ditch, which was classified as an open water channel. Several small wetlands were located in the northeast corner of the site, while a larger, isolated wetland was located in the southeast corner. All of the wetlands were determined to be of intermediate resource value. Landmark incorporated the 2000 LOI in formulating and submitting a preliminary major subdivision and site plan application to the Planning Board.
In June and August 2004, HWCA wrote to Lou Cattuna, a section chief in DEP's Bureau of Inland Regulation, requesting a revaluation of the Landmark site and nullification of the September 1, 2000 LOI. Landmark, as contract purchaser of the Meyerson property, opposed this request by letter dated September 8, 2004.
Landmark applied for a Freshwater Wetlands LOI extension on August 9, 2005. HWCA notified DEP that it opposed the LOI extension due to changed circumstances in the Landmark site. It forwarded an expert report supported by maps of wetlands on the Landmark site. On December 8, 2005, DEP issued a notice of deficiency and asked Landmark to address two specific changes that had occurred on the site between 2000 and 2005. The first was that the wetland in the southeast corner of the site could no longer be considered "isolated" because a site inspection revealed that a steady flow of water drained from the area into a roadside inlet.*fn1 Second, the inspection also revealed that selected areas within the watercourse had acquired wetland characteristics.
Meanwhile, the subdivision and site plan application proceeded before the Planning Board. By the conclusion of the Planning Board's hearings on Landmark's application, the 2000 LOI had expired, but the August 2005 LOI extension application had been submitted and was pending before DEP. In the findings of fact and conclusions of law adopted on December 12, 2005, the Planning Board addressed the situation as follows:
The applicant acknowledged that its original LOI had expired and asked the Board to proceed with action on the submitted application and to condition the Board's approval on the applicant obtaining an LOI from the DEP that did not require it to make any significant amendments to its subdivision plan. The Board understands that if the DEP's extended LOI precludes the applicant from implementing the subdivision and site plan as proposed, then the applicant would not be allowed to implement its Planning Board approval. Instead, applicant will be required to return to the Board either for a new or an amended subdivision approval. This is not a case in which an applicant has proceeded without obtaining an LOI. Instead, this is the case in which a subdivision was designed based [on] an existing LOI which expired during the course of the Planning Board review process. Even though questions were raised as to the validity of the information shown on the old LOI, the Board finds that the applicant acted reasonably in preceding [sic] to the Board and designing its subdivision based on that information. The Board finds that it would be unreasonable to deny the application for preliminary approval based upon the assumption that the DEP's extended LOI will be substantially different thereby requiring a major modification to the applicant's plans. If that in fact occurs, the applicant will be required to return to the Board with its revised plans.
In accordance with these findings, the Planning Board imposed Condition No. 8, which stated:
If the DEP's extended LOI precludes the applicant from implementing the subdivision and site plan as proposed, then the applicant will not be allowed to implement its Planning Board approval. Instead, if it chooses to proceed, applicant will be required to return to the Board either for a new or an amended subdivision and site plan approval.
Landmark submitted a revised plan to DEP on May 19, 2006. However, it did so without prejudice to its request for a reliance determination that it submitted to DEP on April 11, 2006. In response to the deficiency notice, it made several modifications to the plan verified by the 2000 LOI. It presented a more accurate survey of the location of the tributary to Harry's Brook and added two new wetlands within the tributary. The other changes were as follow:
1. The area between wetland point numbers WB-4 and WB-12 has been called out of the "wetland swale".
2. The "isolated" label has been removed from the wetland adjacent to Van Dyke Road, and a note has been added indicating that unpermitted improvements were constructed within the wetland adjacent to Van Dyke Road, thereby connecting that wetland to the Van Dyke Road drainage system; and
3. The improvements to Van Dyke Road that were constructed by Princeton Township have been added to the plan.
On June 14, 2006, DEP issued a Freshwater Wetland LOI/Line Verification-Extension. It concluded that, based on a site inspection conducted on November 29, 2005, the wetlands and waters boundary lines shown on the revised plan were accurate. In addition, DEP determined that the wetlands on the site were of intermediate value, with the exception of the wetlands delineated between WB4 and WB12, which were of ordinary value.
On September 19, 2006, Landmark submitted documentation to DEP and the Division of Law in support of its reliance determination request. The documentation provided additional support for Landmark's claim that it expended more than $689,000 in reliance on the 2000 LOI.
On January 19, 2007, DEP issued Landmark a Freshwater Wetlands LOI-Reliance Determination, signed by Richard C. Reilly, Manager of DEP's Division of Land Use Regulation. The letter provided as follows:
This is in response to [Landmark's] letters of April 11, 2006 and September 19, 2006, regarding the a [sic] Letter of Interpretation-Extension issued in accordance with N.J.A.C. 7:7A-3.6.
On June 14, 2006 the Division issued a Letter of Interpretation - Extension which verified the jurisdictional boundary of freshwater wetlands and waters on the referenced property. The letter of interpretation also classified the wetlands as intermediate resource value with an associated 50-foot transition area. The revised approved survey noted some minor changes from the originally approved survey in the Letter of Interpretation of September 1, 2000. Specifically, an unnamed tributary to Harry's Brook was surveyed for a more accurate location, two small wetlands area[s] were identified within this delineated tributary, and the wetland area located at the corner of Snowden and Van Dyke Roads was shown to be connected to a storm drain and not isolated.
In your correspondence you requested that the Department disregard certain changes noted in the Letter of Interpretation extension. You stated that the applicant utilized the previous approved survey to obtain local approval to develop the property, and that any changes in the revised survey would result in a hardship. My staff reviewed your request and concurs. Therefore the Department will honor your request for you to rely on the original wetland survey with the following conditions:
1. The surveyed boundaries of the unnamed tributary to Harry's Brook shall be utilized on any future development plans. However the wetland areas delineated by the following points shall now be considered State open waters: WBC/WB-D to WB-E/WB-F, and WB-A/WB-B to SOW-24/SOW-25.
2. The Letter of Interpretation and terms of this letter shall expire on September 1, 2010. As noted, the applicant is entitled to rely on the original wetland survey as conditioned by item 1 above. However, please noted [sic] that the issuance of this letter does not guarantee that any future permits or waivers, that may be required will be approved.
Please contact Lou Cattuna of my staff . . . if you have any questions regarding this letter.
It is from this document that HWCA appeals.
As a preliminary matter, we reject the Landmark and DEP contention that HWCA failed to exhaust administrative remedies because HWCA failed to request an administrative hearing to contest the LOI-Reliance Determination. HWCA correctly responds that it did not request an administrative hearing because it had no right to do so. N.J.S.A. 52:14B-3.2, -3.3 and N.J.A.C. 7:7A-1.7(a)(2), -1.7(k) require "particularized property interest sufficient to require a hearing on constitutional or statutory grounds," to request an administrative hearing. In re Freshwater Wetlands Statewide General Permits, 185 N.J. 452, 463-64 (2006). See also In re Amico/Tunnel Carwash, 371 N.J. Super. 199, 210-12 (App. Div. 2004) (ownership of property adjacent to property that is subject of variance appeal before State agency not entitled to a hearing).
At oral argument we expressed reservations whether a LOI is a final agency action subject to an appeal as of right. R. 2:2-3(a)(2). An LOI is an informational document that only takes effect when it is incorporated into a permit decision. DEP has yet to act on Landmark's applications for wetland permits, therefore, any decision by this court as to the import of the LOI would be speculative and possibly unnecessary.
Here, HWCA is appealing the issuance of an LOI. Unlike a permit which confers specific rights on the recipient, an LOI "does not grant approval to conduct any regulated activities. The sole function of a letter of interpretation is to provide or confirm information about the presence or absence of wetlands, boundaries, and/or resource value classification of freshwater wetlands, transition areas, and/or State open waters." N.J.A.C. 7:7A-3.1(b). Because it is purely informational and because it can be voided pursuant to N.J.A.C. 7:7A-3.6(a) when new information discloses a changed condition on the site, an LOI lacks the effect and finality of a permitting, licensing or zoning decision. We, therefore, dismiss the appeal.