On appeal from the Final Decision of the Commissioner, Department of Environmental Protection, Division of Land Use Regulation, Docket No. 1905-0013.1 FWW050001.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parker and Yannotti.
Petitioner Sam Haubrich appeals from a final decision rendered on March 3, 2008 by the Department of Environmental Protection (DEP) adopting the initial decision of the administrative law judge (ALJ), denying petitioner's application for an exemption from the Freshwater Wetlands Protection Act (FWPA), N.J.S.A. 13:9B-1 to -30.
Petitioner owns 4.3 acres of land in Frankford Township, Sussex County. The property is zoned C-2 commercial and plaintiff is seeking site plan approval for a permitted use. Eighty percent of the property is wetlands, however, and petitioner sought an exemption from the FWPA in order to build a used car sales facility.
Prior to the hearing before the ALJ, the parties stipulated to certain facts, the most pertinent of which are:
4. The Property was previously part of a larger [twelve]-acre parcel of land for which the municipal Frankford Land Use Board granted preliminary and final subdivision approval set forth on a filed map dated July 26, 1977 . . . .
5. Petitioner's predecessor secured a five-lot subdivision for the [twelve]-acre parcel which include[s] [petitioner's] lots 3.02 and 3.03. These two lots total approximately 4.3 acres.
6. According to a proposed 1995 site plan map submitted by petitioner during discovery most of the Property is covered with freshwater wetlands. Petitioner's 2005 "Application-Zoning Brief for Concept Review for Sam Haubrich-123 Auto Sales" submitted to the Frankford Land Use Board reports that more than 80% of the property is covered with wetlands.
7. The 1977 subdivision approval did not include any accompanying site plan approval, nor did the plans for the 1977 subdivision approval identify any proposed structures on the Property. Further, no specific project was discussed in the 1977 application nor was any shown on any of the referenced 1977 plans.
After reviewing the stipulated facts and the applicable statutes, the ALJ determined that the "project" for which petitioner sought the exemption before the DEP "is most assuredly not the 'project' that the Frankford authorities reviewed and approved in 1977. And that is the fatal flaw in the petitioner's attempt to have his plan, his 'project,' the proposed used automobile sales operation, exempted from the requirements of the Act based upon the prior approval." The ALJ concluded that, "[w]hat the local authority approved in 1977 is nothing like what Haubrich now proposes . . . . [I]t is entirely correct for the DEP, operating pursuant to N.J.S.A. 13:9B-4 and N.J.A.C. 7:7A-2.2-8, to identify his 'project' as not the 'project' that the local board approved in 1977, but instead a different 'project.' And as such Haubrich has no subdivision approval under the MLUL that allows him any exemption from the requirements of the FWPA."
In this appeal, petitioner argues that he "is entitled to a statutory exemption from the freshwater wetlands protection act requirements as unambiguously enacted by the legislature." Petitioner argues that N.J.S.A. 13:9B-4(d) specifically exempts his proposal from the FWPA. Paragraph (d) states:
Projects for which (1) preliminary site plan or subdivision applications have received preliminary approvals from the local authorities pursuant to the "Municipal Land Use Law," . . . prior to the effective date of this act, (2) preliminary site plan ...