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In re Freshwater Wetlands Letter of Interpretation-Reliance Determination

August 1, 2008


On appeal from the Department of Environmental Protection, Division of Land Use Regulation, File No. 1110-05-0006.1 (FWW-060001).

Per curiam.


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 ...

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