August 8, 2008
PIO COSTA ENTERPRISES AND ANTHONY PIO COSTA, III, PLAINTIFFS-APPELLANTS,
STATE OF NEW JERSEY AND NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2607-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 22, 2008
Before Judges Skillman, Winkelstein and LeWinn.
The Highlands Water Protection and Planning Act (Highlands Act), N.J.S.A. 13:20-1 to -35, divides the Highlands Region into two areas: the preservation area (which is subject to stringent water and natural resource protection standards, policies, planning and regulation), and the planning area. N.J.S.A. 13:20-2, -3, -7. The Legislature designated specific boundaries for both the preservation and planning areas by reference to streets, roads, and specific distances from various natural and artificial boundaries, as well as references to properties by lot and block number. N.J.S.A. 13:20-7(b).
Plaintiffs own a 394-acre tract of land in Montville Township, which is located entirely within the preservation area. Plaintiffs brought this action to challenge the inclusion of their property in the preservation area. Plaintiffs' amended complaint asserted a single claim: that "[t]here is no scientific justification for the inclusion of [their] Property in the Preservation Area" and therefore "placement of [their] Property in the Preservation Area is arbitrary, capricious and unreasonable."*fn1
The case was brought before the trial court by plaintiffs' motion to compel discovery and defendants' cross-motion for summary judgment. The trial court granted the State's motion to dismiss the complaint, thus mooting plaintiffs' motion to compel discovery. In granting the State's motion, the court stated:
If the plaintiffs object to the [Act's] application [to their property] . . . as unfair, plaintiffs can and should apply for a permit from the New Jersey DEP or a permit waiver, N.J.S.A. 13:20-32 and 33.
Instead of pursuing [their] grievances in court, this court suggest[s] that the plaintiffs must pursue their avenues of relief afforded to them under the Highlands Act.
During the pendency of plaintiffs' appeal from the dismissal of their complaint, we decided OFP, L.L.C. v. State of New Jersey, 395 N.J. Super. 571 (App. Div.), certif. granted, 197 N.J. 277 (2007). Our opinion in OFP rejected substantially the same argument plaintiffs present in this appeal on the ground that any claim that an individual property has been improperly included in the preservation area should be presented to the Department of Environmental Protection (DEP) through an application for a hardship variance:
OFP's final argument is that the inclusion of its property in the preservation area is arbitrary and capricious because the property is located adjacent to a landfill, which has already resulted in contamination of drinking water in the area, and therefore, any limitation of this property's development will not further the Act's stated purpose of preserving clean water. This argument is clearly without merit and only requires brief discussion. R. 2:11-3(e)(1)(E). The stated purposes of the Act are not limited to preserving clean drinking water. The Act's purposes also include protection of the "natural resources of the New Jersey Highlands against the environmental impacts of sprawl development[,] . . . [discouragement of] piecemeal, scattered and inappropriate development, in order to accommodate local and regional growth and economic development in an orderly way . . . [and] maintenance of agricultural production and a positive agricultural business climate[.]" N.J.S.A. 13:20-2. Consequently, even if it could be shown that a limitation of development of OFP's property would not serve to preserve clean drinking water, such a limitation still could further the other stated purposes of the Act. Moreover, the Legislature was not required to consider the condition of each individual property within the preservation area in establishing its boundaries, because such boundaries are not required to "be formulated with mathematical perfection." Toms River Affiliates v. Dep't of Envtl. Prot., 140 N.J. Super. 135, 147-48 (App. Div.), certif. denied, 71 N.J. 345 (1976). We also note that if stringent limitations on development of OFP's property are not required to serve any of the Highlands Act's purposes, this would be an appropriate consideration in reviewing an application for a hardship wavier. In fact, N.J.A.C. 7:38-6.8(f) provides that in determining "the environmental impacts of the minimum beneficial economically viable use of the property . . . and the consistency of those impacts with the goals of the Highlands Act," as required by N.J.A.C. 7:38-6.8(c)(3), the [DEP] shall evaluate whether the use would, to the maximum extent possible:
1. Have a de minimis impact on water resources and would not cause or contribute to a significant degradation of surface or groundwaters. . . .;
3. Result in the minimum feasible alteration or impairment of the aquatic ecosystem including existing contours, vegetation, fish and wildlife resources, and aquatic circulation of a freshwater wetland;
5. Not be located or constructed so as to endanger human life or property or otherwise impair public health, safety or welfare;
Consequently, OFP will be afforded an opportunity in its submission in support of an application for a hardship waiver to present whatever evidence it may have that preservation of its property is not required to further the purposes of the Highlands Act.
[Id. at 595-97.]
We affirm the dismissal of plaintiffs' complaint substantially for the reasons set forth in OFP. We add the following supplemental comments.
The expert report of Frank Getchell, a hydrogeologist, upon which plaintiffs relied in opposing defendants' motion for summary judgment, appears to implicitly acknowledge the appropriateness of the inclusion of 234 acres of plaintiffs' property in the preservation area:
The Act references the importance of preserving ground-water recharge, recognizing its importance to local water supplies and streamflow. As such, relative ground-water recharge rates have been quantified by the NJGS for the municipalities comprising the Highlands, based on an annual average precipitation rate in the region of about 44 inches per year. Based on studies and planning assumptions made elsewhere in the northeast, including New Jersey, a ground-water recharge rate equivalent to at least 30 percent of the annual average precipitation amount can be conservatively assumed under optimal conditions. Figure 3 illustrates the extent of those portions of the Property where the NJGS-determined ground-water recharge rate is equal to or greater than 30 percent (at least 13-inches per year of the annual average precipitation amount). The overall extent of the Property is about 394 acres. Of this total area, only about 234 acres (or 59 percent) exhibits a ground-water recharge rate of 13-inches per year or greater. Furthermore, the area exhibiting ground-water recharge potential of less than 13-inches per year is relatively continuous, supporting its treatment as a singular large area. As such, the protection and preservation of the current optimal ground-water recharge area of the Property appears to exceed its actual boundaries and cannot be justified as a primary basis for the designation of the entire Property as belonging in the Highlands Preservation Area.
In summary, based on our review of the delineation of the NJDEP Highlands and the associated Preservation Area, along with the reported bases for these designations as defined by the Act, we do not see a water-resource protection and preservation basis as the primary justification for designating the Property as part of the Preservation Area.
Furthermore, the Getchell report only addresses the issue of protection of water resources relative to inclusion of plaintiffs' property in the preservation area. However, as we noted in OFP, "[t]he stated purposes of the Act are not limited to preserving clean drinking water." 395 N.J. Super. at 595.
Those purposes "also include protection of the 'natural resources of the New Jersey Highlands against the environmental impacts of sprawl development[,] . . . [discouragement of] piecemeal, scattered and inappropriate development, in order to accommodate local and regional growth and economic development in an orderly way . . . [and] maintenance of agricultural production and a positive agricultural business climate[.]'"
Id. at 596 (quoting N.J.S.A. 13:20-2). Because the Getchell report only addresses the issue of protection of water resources, defendants' evidence, presented in support of its motion, that plaintiffs' property is comprised entirely of forest and/or wetlands was uncontradicted.
Plaintiffs argue that the Legislature's delineation of the boundaries of the preservation area was influenced by political considerations and that the trial court should have allowed them to conduct discovery regarding those alleged political influences. In making this argument, plaintiffs rely on an assemblyman's alleged statement, "I guess you didn't know the right people[,]" in responding to plaintiffs' complaint about inclusion of their property in the preservation area. However, "[i]mproper ulterior motives on the part of individual legislators . . . cannot serve to supplant a lawful intent which can otherwise be imputed to the Legislature as a collective body." New Jersey Chamber of Commerce v. New Jersey Election Law Enforcement Comm'n, 82 N.J. 57, 78-79 (1980); see also Schundler v. Paulsen, 340 N.J. Super. 319, 339 (App. Div.), aff'd o.b., 168 N.J. 446 (2001). Therefore, the motives of individual legislators in including plaintiffs' property in the preservation area are not relevant.