On appeal from the Resolution of the New Jersey Pinelands Commission, No. PC4-07-37.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 16, 2008
Before Judges Wefing, Parker and LeWinn.
Petitioner Ralph Pappas appeals from a Resolution of the New Jersey Pinelands Commission (Commission) adopted on May 11, 2007 denying petitioner's application for a waiver of strict compliance with wetlands regulations. We reverse.
Petitioner owns twenty acres of property within the Commission's jurisdiction in Galloway Township (Township). In 1986, petitioner built a house with a septic system, a garage, tennis court, deck and gazebo. Since that time, petitioner has been seeking a certificate of occupancy (CO) for the premises but the Commission has objected on the ground that the structures encroach on wetlands and wetland buffer zones.
Petitioner purchased the property in 1985. In July of that year, the Atlantic County Division of Public Health issued a permit for a septic system on the property and the Commission reviewed the permit and issued a letter dated August 15, 1985 indicating that the septic permit did not raise any wetlands concerns.
In 1986, before he obtained a building permit and began construction of the house, petitioner met with Joseph Pratzer, an environmental specialist with the Commission. Pratzer advised petitioner that the wetlands buffer on the property could be reduced from 300 to 250 feet. This representation was confirmed in a letter dated January 21, 1986. The letter stated that a plan depicting the proposed development on the property met the wetlands buffer requirements. On the basis of that representation, the Township issued a building permit and petitioner began construction. In 1991, the Township issued a building permit for the garage. No permits were issued for any of the other structures now on the property, however. The Township has refused to grant a CO and petitioner has been unable to occupy the premises since it was constructed in 1986.
In July 1991, the Commission inspected the site for the first time and notified petitioner that the driveway and septic system did not comply with the 300-foot wetlands buffer, and that the tennis court, detached garage, wooden deck and gazebo were "unauthorized development" and "were built on wetlands or wetland buffer areas."
On August 30 and September 3, 1991, the Commission received copies of the permits issued for construction of the house and septic system. On October 1, 1991, the Commission advised petitioner that the permits "raised substantial issues with respect to the standards of the [Pinelands Comprehensive Management Plan] CMP" and scheduled a public hearing on the matter for October 30, 1991.
On November 25, 1991 -- more than five years after the permits were issued and the house constructed -- the Commission issued a report recommending that approval for development of the proposed single-family dwelling be denied. On December 6, 1991, the Commission adopted a resolution memorializing its decision. Then, on January 21, 1992 the Atlantic County Division of Public Health revoked the septic permit -- more than five years after it had issued the permit in July 1985.
On August 25, 1992, the Commission sent a letter to petitioner inquiring "about his progress in restoring the site." The Commission received no response, but nevertheless waited almost a year to inspect the property in June 1993. Petitioner was present for that inspection and, in an effort to comply with the Commission's position, he retained an engineering firm to conduct boring and groundwater tests. The tests demonstrated that there was a sufficient buffer between the seasonal groundwater table and the septic field and that the house was more than 300 feet from any of the wetlands.*fn1 After submitting the engineering reports to the Commission, petitioner heard nothing further from the Commission for eight years.
In December 2001, the Commission filed a verified complaint in the Atlantic County Chancery Division, alleging that, "the house, septic system and driveway were built in wetlands or wetland buffer areas in violation of N.J.A.C. 7:50-6.6 and 6.14;" and that "[n]either the house, driveway nor septic system were constructed, in size or location, in accordance with the approved plans." The complaint further alleged that "[t]he tennis courts, detached garage, wooden deck and gazebo also constitute unauthorized development as they were not depicted on the approved plans and they were built in wetlands or wetland buffer areas, in violation of N.J.A.C. 7:50-6.6 and 6.14." The Commission sought (1) to have the petitioner submit a survey depicting all development on the site and delineating wetlands; (2) a remediation plan approved by the Commission to remove and relocate all development outside of the wetlands and buffer area; (3) removal of all non-native vegetation; and (4) revegetation with approved native vegetation.
In May 2002, petitioner answered the complaint and pled defenses of statute of limitations, laches, unclean hands and estoppel. In September 2002, petitioner had the survey done, showing the structures on the property and wetlands delineations. In a ...