July 7, 2009
SAM HAUBRICH, PETITIONER-APPELLANT,
NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, DIVISION OF LAND USE REGULATION, RESPONDENT-RESPONDENT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 21, 2009
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 subdivision applications have been submitted prior to June 8, 1977.
The DEP has, however, adopted a regulation which provides that the term "project" in N.J.S.A. 13:9B-4(d) does not include the portion of a tract that was not the subject of a proposed development at the time of the subdivision application. N.J.A.C. 7:7A-1.4. Petitioner maintains that the regulation is ultra vires because the statute provides a clear and unambiguous exemption when a property owner has received subdivision approval prior to the effective date of the FWPA.
The ALJ rejected petitioner's contention because the statute does not define the term "project" and the regulatory definition is in accord with the intent of the statute, which is to protect those projects for which there has been a significant investment and expenditure of funds prior to the effective date of the law. As the ALJ noted, "it is within the authority of the DEP, as the agency that is charged to carry out the legislative mandate of the FWPA, to interpret the language of the Act so as to effectuate that legislative intent. And the agency's interpretation of that language is entitled to substantial deference." (Citations omitted).
We have carefully considered petitioner's argument in light of the record and the applicable law. We are satisfied that the argument lacks sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reason set forth by Administrative Law Judge Jeff S. Masin in his written decision dated January 16, 2008 and adopted by the DEP in its final decision dated March 3, 2008.
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