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In re Review and Revision of the Decision to Deny Freshwater General Permit No. 7

February 6, 2009

IN THE MATTER OF REVIEW AND REVISION OF THE DECISION TO DENY FRESHWATER GENERAL PERMIT NO. 7


On appeal from a Final Determination of the Department of Environmental Protection.

The opinion of the court was delivered by: Simonelli, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued December 15, 2008

Before Judges Carchman, Sabatino and Simonelli.

Appellant, Earl Stahl, challenges the issuance of a freshwater wetlands general permit for respondent, Samuel Barresi, by the Department of Environmental Protection (DEP) for Barresi's regulated wetlands activities on Stahl's property. Stahl contends that the DEP's decision to issue the permit without requiring compliance with the Stormwater Management Rules (SMR), N.J.A.C. 7:8-1 to -6.3, was arbitrary, capricious and unreasonable. Stahl also contends that the DEP deprived him of his due process rights and failed to appropriately consider his interests. We reject these contentions and affirm.

Stahl owns approximately ten acres of land on Fostertown Road in Medford, designated as Lot 39.01, Block 302. Barresi owns two adjoining lots designated as Lots 39.05 and 39.06, Block 302, each of which are approximately 2.5 acres. The Stahl and Baressi properties are designated freshwater wetlands.

Barresi purchased his property in 1985. In 1986, he purchased a storm drainage easement on Stahl's property from a former owner. The easement permits Barresi to "construct, alter, and maintain a twenty foot wide storm drainage area, and appurtenances, across" a portion of Stahl's property. Stahl purchased his property in 1987, subject to and with knowledge of the easement.

The Freshwater Water Protection Act*fn1 (FWPA) divides freshwater wetlands into three categories. The first, and most highly protected category, is freshwater wetlands of exceptional resource value. N.J.S.A. 13:9B-7a. See also N.J.A.C. 7:7A-2.4(b). The two lesser protected categories are freshwater wetlands of ordinary resource value, which includes man-made ditches, swales or detention facilities, and freshwater wetlands of intermediate resource value, which includes all other wetlands. N.J.S.A. 13:9B-7b and c. See also N.J.A.C. 7:7a-2.4(d) and (e).

At the time Barresi obtained the easement, a man-made freshwater ditch/swale (the ditch) was located both on his property and within the easement on Stahl's property. The freshwater wetlands within the ditch area on Stahl's property is of both ordinary and intermediate resource value. The freshwater wetlands within the ditch area on Barresi's property is of ordinary resource value.

In 1987, the Medford Township Planning Board (Board) approved Barresi's application to subdivide one of his lots to construct a 35,400 square foot warehouse. As part of the approval, the Board reviewed drainage calculations and stormwater management. Barresi installed a foundation, but never constructed the warehouse. Thereafter, in 1994, without requiring a permit, the DEP authorized Stahl to install a parallel piping system in the ditch beginning at the northern end of the easement on Barresi's property and continuing northward to the paved driveway on Stahl's property. The DEP also authorized Stahl to raise the bottom contour elevations of the ditch without a permit.

In 1995, Barresi sought a use variance to permit the construction of an indoor ice skating rink on the previously constructed foundation. The Board granted a use variance subject to site plan review and approval. The Board addressed drainage issues during its review and subsequently granted preliminary and final site plan approval, subject to certain conditions.

During the construction of the ice rink, in order to facilitate storm water drainage from the ice rink, Barresi relocated the ditch to align it with the parallel drainage piping that Stahl had installed. The Board, the Burlington County Soil Erosion Conservation Commission, and the township engineer and code officials approved the work. Barresi completed construction of the skating rink in 1997.

Three years later, based largely on information Stahl provided, on October 19, 2000, the DEP issued a Notice of Violation notifying Barresi of two violations: (1) the removal and relocation of an existing freshwater wetlands ditch located on Stahl's property without a freshwater wetlands general permit; and (2) the direct discharge of storm water from the ice rink into regulated freshwater wetlands.*fn2 The DEP instructed Barresi to either restore and ...


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