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Realty v. New Jersey Dep't of Environmental Protection

February 2, 2009


On appeal from the New Jersey Department of Environmental Protection, Docket No. 0267-05-0003.1 and FHA 05001.

Per curiam.


Argued November 19, 2008

Before Judges Parrillo, Lihotz and Messano.

Appellant ANM Realty (ANM) appeals from the August 3, 2007 decision of the Assistant Commissioner of the Department of Environmental Protection (DEP),*fn1 upholding the DEP's enforcement of stream encroachment regulations amended after ANM received site plan approval, but prior to the commencement of construction on its property abutting the Pascack Brook. ANM asserts the amended regulations were flawed and unenforceable. Therefore, DEP's attempted enforcement of the erroneous amendments exceeded the agency's jurisdictional power. ANM also argues the Commissioner's attempt to cure an error in the regulations, after the dispute was presented, constitutes ad hoc decision-making in violation of the Administrative Procedure Act. We disagree with ANM's positions and affirm.

ANM owns a 0.46-acre property in Westwood, which is adjacent to Pascack Brook. In July 2003, ANM submitted an application to Westwood's Zoning Board of Adjustment (Zoning Board) seeking site plan approval, a use variance and various bulk variances to tear down the existing structures and construct on its property a mixed-use office/residential building with parking. The Zoning Board adopted a resolution on January 5, 2004, memorializing its preliminary and final site plan approvals, variances, and waivers, conditioned on "approval from any other governmental agencies, if any" and compliance with "any and all State and Federal laws and applicable regulations."

The site plan included a proposal for construction of a 100-foot long, 17-foot high concrete retaining wall along Pascack Brook, set back more than twenty-five feet from the channel's bank, as required by the then Flood Hazard Area Control Rules, promulgated pursuant to the Flood Hazard Area Control Act, N.J.S.A. 58:16A-50 to 101, which regulated stream encroachment. Following ANM's commencement of construction of the retaining wall, DEP's Bureau of Land Use Compliance and Enforcement issued a field notice of violation. The DEP advised the surface water quality standards classification upgraded Pascack Brook to a Category One (C1) waterway, which required a stream encroachment permit and a buffer set-back of fifty feet. The notice specifically cited failure to construct the wall beyond fifty feet of the brook's bank, as required by N.J.A.C. 7:13-1.1.*fn2 The notice required ANM to submit to a jurisdictional determination. ANM objected to the application of the regulations, as they were adopted after its municipal approvals were issued. Moreover, ANM argued the flood hazard area control regulations applicable to its development do not require a permit.

The DEP administers surface water quality standards (SWQS) to protect the quality of the waters of the State pursuant to the Water Quality Planning Act, N.J.S.A. 58:11A-1 to -16; the Water Pollution Control Act, N.J.S.A. 58:10A-1 to -60; and in conformance with the requirements of the federal Water Pollution Control Act, 33 U.S.C.A. § 1251. In addition to preserving water quality, implemented stream encroachment rules protect the aquatic environs, including the unnecessary destruction of near-stream vegetation that anchors soil and filters pollutants from degrading water quality. The SWQS are found at N.J.A.C. 7:9B-1.1 to -1.15.

Additionally, the Flood Hazard Area Control Act Rules (flood hazard rules), N.J.A.C. 7:13-1.1 to -19.2, implement the Flood Hazard Area Control Act and set forth "requirements governing human disturbance to the land and vegetation" in the flood hazard area of protected waters. N.J.A.C. 7:13-1.1(a). The flood hazard rules include provisions governing development permits. N.J.A.C. 7:13-2.1. A common objective between the flood hazard rules and the SWQS is "to preserve the quality of surface waters, and to protect the wildlife and vegetation that exist within and depend upon such areas for sustenance and habitat." N.J.A.C. 7:13-1.1(c).

Pascack Brook is a feeder stream of the Oradell Reservoir.

In accordance with DEP's statewide "antidegradation policies," N.J.A.C. 7:9B-1.5, designed to improve and preserve water quality, New Jersey's bodies of water were classified based on major drainage basins.*fn3 Six tables were prepared in the SWQS, found at N.J.A.C. 7:9B-1.15(c) through (h). Pascack Brook is positioned in the Passaic River, Hackensack River and New York Harbor Complex drainage basins. N.J.A.C. 7:9B-1.15(e)(Table 3).

In 1995, SWQS classified the brook as "fresh-water, non-trout production" (FW2-NT). Ibid. For development adjacent to an FW2-NT water body, stream encroachment regulations required a permit for development within twenty-five feet "back from the top of the channel bank[.]" N.J.A.C. 7:13-1.3(a)(2).*fn4

In July 2003, when ANM filed its application to the Zoning Board, Pascack Brook was classified as FW2-NT. As required by this SWQS classification, ANM's site plan application stated a retaining wall would be built adjacent to the brook, more than twenty-five feet from the channel bank, without benefit of permit.

In November 2003, the DEP published proposed amendments to the SWQS "to upgrade the antidegradation designation for seven streams including both named and unnamed tributaries based upon 'exceptional ecological significance.'" 35 N.J.R. 4949(a), 4957-58 (Nov. 3, 2003). Included in the reclassification was the Oradell Reservoir, which was upgraded to protect its "exceptional water supply significance." Ibid. Pascack Brook's ...

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