November 23, 2009
FRIENDS OF LIBERTY STATE PARK, INC., APPELLANT,
LISA JACKSON, COMMISSIONER, NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, AND JON S. CORZINE, GOVERNOR, STATE OF NEW JERSEY, RESPONDENTS.
On appeal from the New Jersey Department of Environmental Protection.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 30, 2009
Before Judges Fuentes, Gilroy and Simonelli.
Appellant, Friends of Liberty State Park, Inc., is a nonprofit organization dedicated to preserving, protecting, conserving and promoting Liberty State Park, Jersey City (the Park). On May 6, 2005, the Land Use Regulation Program (LURP) in the New Jersey Department of Environmental Protection (DEP) issued a waterfront development Coastal General Permit (CGP) authorizing the construction of the "New Jersey September 11, 2001 Memorial" (Memorial) at the northeastern end of the Park. Appellant appeals from the issuance of the May 6, 2005 CGP. Appellant also appeals from DEP Commissioner Lisa Jackson's letter of July 27, 2006, declining to reconsider the Memorial's design; the State Historic Preservation Office's letter of August 17, 2006, affirming its prior determination supporting the construction permit for the Memorial; and Governor Jon S. Corzine's letter of October 1, 2006, declining to revisit the Memorial's design. For reasons that follow, we dismiss the appeal.
In October 2001, then Acting Governor Donald T. DiFrancesco signed Executive Order #134 (2001), establishing the New Jersey World Trade Center Victims Memorial Commission (the Commission) to develop and recommend a concept for a permanent memorial in honor of the New Jersey victims of the September 11, 2001 attacks. 33 N.J.R. 3710(b) (Nov. 5, 2001). In August 2002, then Governor James E. McGreevey signed Executive Order #29 (2002), establishing a Family and Survivor Memorial Committee (Committee) to review and develop suggestions, plans and designs for the Memorial and submit those recommendations to the Commission. 34 N.J.R. 3409(b) (Oct. 2, 2002).
In December 2003, the New Jersey Department of the Treasury, on behalf of the Memorial's sponsor, the DEP's Division of Parks and Forestry (DPF), issued a request for proposals soliciting conceptual design submissions for the "New Jersey September 11, 2001 Memorial Design Competition."
The Park is comprised of 1212 acres situated along the Hudson River in Jersey City. It opened in 1976 and presently offers hiking and biking trails; a two-mile "Liberty Walk" along the river; a science center; an interpretive center; a marina with 200 berths, a boat launch and a restaurant; a thirty-six acre nature area; picnic areas; fishing areas; playgrounds; and the only ferry service in New Jersey to Ellis Island and the Statue of Liberty.*fn1 Also found in the Park is the Central Railroad of New Jersey Terminal (Terminal), which is on the National and New Jersey Registers of Historic Places along with the Morris Canal Basin that forms the Park's northern boundary.
The Memorial site is 1.6 acres, measuring approximately 345 feet by 210 feet, situated at the northeast end of the Park. To the north of the Memorial site is the Morris Canal Basin; to the east is the Hudson River; to the south is the Terminal; and to the west is a parking lot and a maintained lawn. Except to its south, it is surrounded on all sides by Liberty Walk.
In June 2004, the Memorial Jury, consisting of design professionals, a Liberty State Park representative and members of the Committee, selected the design entitled "Empty Sky," by Frederic Schwartz Architects. The winning design consists of two continuous, parallel, thirty-foot high, 200-foot long brushed stainless steel walls flanking a sixteen-foot wide paved bluestone pathway. The walls, each proportioned to represent one side of the World Trade Center's Twin Towers, channel through a gently-sloped grassy knoll that rises ten feet and gradually returns to the level of the pathway. The names of New Jersey victims will be within reach of visitors in four-inch high engraved lettering on the inner walls.
The bluestone pathway will lead visitors from the parking lot to Liberty Walk and to a view of where the Twin Towers once stood across the river in Manhattan. The walls will be illuminated with high intensity lights along their base and with metal halide lights atop to generate beams of light extending into the sky.
Underground concrete filled steel pipe piles will support two concrete retaining walls that will then support the stainless steel walls, which will be formed by grids of marine-grade stainless steel panels. Beams recovered from the Twin Towers will be placed amid a nearby grove of dogwood trees, and violets (the State flower) would cover the knoll.
A public dedication of the Memorial site and groundbreaking occurred in September 2004. Thereafter, DPF selected Langan Engineering and Environmental Services, Inc. (Langan), as its agent to provide construction administration and consultation.
In September 2004, Langan prepared and submitted an initial Environmental Impact Statement and Assessment (EA) to the DEP, stating that the project would cause only "minor environmental impacts mitigated by appropriate construction and methods." This EA identified the required permits and approvals for the project as including, among other items: 1) an approval from the State Historic Preservation Office (HPO) because of the site's proximity to the Terminal and Morris Canal Basin; and 2) a Waterfront Development Permit from DEP's Land Use and Compliance Division "if existing bulkhead is being impacted in any way."
In early December 2004, the DEP's Office of Permit Coordination and Environmental Review held a pre-application meeting with representatives from Langan and Schwartz Architects. By letter dated December 21, 2004, it determined "that a Coastal General Permit will be required for the project from NJDEP's Land Use Regulation Program instead of an Individual Waterfront Development Permit." The agency also found that the DPF needed to coordinate its activities with: 1) the DEP's Site Remediation Program regarding excavation; and 2) the HPO "as the project advances through the design and construction phases." Finally, it "concur[red] with the finding of the EA that no significant adverse environmental impacts have been identified," and it granted "conditional approval of the project." The DEP published notice of its conditional approval and submission of the EA in its DEP Bulletin on December 29, 2004.
Langan filed a revised EA incorporating the DEP's findings during the pre-application process. This revision identified the permits and approvals required for the project as including a Waterfront Development CGP:
Waterfront Development Permit - A Waterfront Development Permit required if any work proposed below Mean High Water or for construction activities in the upland waterfront development zone which extend a maximum of 500 feet from the Mean High Water line. The WFD Permit is issued by NJDEP's [LURP]. Based on a pre-application meeting with the NJDEP and follow-up discussions, the project will qualify for a coastal general permit (NJAC 7:7-7.17) which allows the construction of recreational facilities at public parks. [(emphasis added).]
It also stated that a review by the DEP's HPO was needed, but formal approval was not required:
Historic Preservation Office Review -- A review and approval by DEP's Historic Preservation Office (HPO) is required for work is [sic] within 1/4 mile of a historic structure. Based on a pre-application meeting with the NJDEP, the HPO review will be done as part of the Waterfront Development Permit review. A formal HPO approval will not be required. [(emphasis added).]
In early February 2005, on the DPF's behalf, Langan submitted an application to LURP for a CGP for "Construction of Recreational Facilities at a Public Park" pursuant to N.J.A.C. 7:7-7.17, that is, a CGP No. 17.*fn2 The application stated that "[t]he proposed project will not have an adverse effect on any of the Special Areas defined [in N.J.A.C.] 7:7E-3 that occur on the project site."
Concurrently with its application, Langan mailed notices of its submission of the application to LURP to all neighboring landowners within 200 feet, as well as to various municipal and county offices. No individual notice was sent to appellant, as none was required. On March 23, 2005, the DEP published a notice of the application in its DEP Bulletin. However, it gave the application a "CAF" number and placed it in the section announcing the submission of CAFRA*fn3 applications, instead of giving it a "WFD" number in the section for Waterfront Development applications.
On May 6, 2005, LURP issued the DPF a CGP No. 17 and Water Qualify Certification for the project. At that time, N.J.A.C. 7:7-7.17 stated in relevant part:
7:7-7.17 Coastal general permit for the construction of recreational facilities at public parks
(a) This coastal general permit [CGP No. 17] authorizes the construction of the following recreational facilities at parks which are publicly owned or controlled for the purposes of public access. Construction of the facilities listed below is acceptable provided that the construction has no adverse impact on any Special Areas defined at N.J.A.C. 7:7E-3 and provided that the facility complies with the specific conditions listed below for each facility.
1. Construction of the following facilities provided they are not located on a dune or in a wetland, except as noted at (a)3 below:
i. Playground equipment including, but not limited to, swings, slides, and jungle gyms;
ii. Picnic tables, benches and grills which are not seasonal;
iii. Gazebos, rain shelters and sheds provided they do not exceed a footprint [of] 200 square feet;
iv. Pathways, bicycle paths and jogging and nature trails and associated fitness equipment provided they are not located on a beach; and
v. Fences which do not require permanent footings.*fn4
Valid for five years, the permit authorization stated:
The Land Use Regulation Program has reviewed the referenced application for a General Permit authorization pursuant to the requirements of the Coastal Permit Program Rules at N.J.A.C. 7:7-7 and the Waterfront Development law (N.J.S.A. 12:5-3). The proposed activities are authorized by Coastal General Permit No. 17, which authorizes the construction of certain recreational facilities at parks which are publicly owned or controlled for the purposes of public access. This letter of authorization to conduct regulated activities in open water includes a Water Quality Certificate for these activities.
This permit authorizes the construction of a memorial dedicated to the New Jersey lives lost at the World Trade Center on September 11, 2001. The memorial will include two continuous, 30-foot high, 200-foot long brushed stainless steel walls which will flank a 16 foot wide path paved with bluestones. The existing 30-foot walkway easement will be maintained.
And the permit authorization declared:
In accordance with N.J.A.C. 7:7A-1.7, any person who is aggrieved by this decision may request a hearing within 30 days of the decision date by writing to: New Jersey Department of Environmental Protection, Office of Legal Affairs, Attention: Adjudicatory Hearing Requests . . . . [(emphasis added).]
Thereafter, the DEP's Division of Water Quality issued DPF a New Jersey Pollution Discharge Elimination System General Permit in April 2005, and a Treatment Works Approval in August 2005. Also in August 2005, the Hudson-Essex-Passaic Soil Conservation District certified DPF's soil erosion and sediment control plan. Construction began in June 2006 with soil surcharging of the site to ensure proper compaction.*fn5
In the interim, in April 2006, appellant, by its president Sam Pesin,*fn6 submitted a prepared statement to the Liberty State Park Advisory Committee "accept[ing]" the design chosen for the Memorial, but seeking a reduction in the Memorial's height. Pesin stated that appellant's concerns centered on the Memorial's impact on views of the Manhattan skyline. He stated:
[Appellant] believes, as will all park users, that The State of NJ should have had a public meeting to choose the design of the 9/11 Memorial. The first and only time that the model was shown . . . was after it was chosen . . . .
. . . People have told me, and I agree, that just looking at the skyline is plenty powerful without any memorial. I think a very short wall of the victims' names, either in the Grove of Remembrance or by the river would have been best. . . .
But at this late date, [appellant] accepts the fact that this design was chosen . . . . So I speak today, April 10th, to ask NJ and the architect to eliminate the 10 foot hill, and to change the design into a flat open space. The green open space is of course compatible with the park, as the overwhelming majority has always wanted a free and green open space waterfront park, but the [h]ill harms and diminishes [the Park]. The [h]ill cuts off the skyline . . . .
The [S]tate, despite my speaking to a Division of Parks and Forestry representative at the one design meeting I attended, ignored the main position of [appellant], that the views of the skyline not be blocked. . . .
In response, then DEP Commissioner Lisa Jackson declined to hold public meetings, but did agree to attend one of appellant's meetings and bring representatives of the victims' families.
On June 13, 2006, Commissioner Jackson and those representatives attended a public meeting organized by appellant. Pesin described the meeting the next day as "[concerning] the 9/11 Memorial design and the important issues of the 'national shrine' viewshed [sic] that the design blocks, and also of the public's right to give public input on a public memorial in a public park."
Also on June 14, 2006, the Commissioner met with the Committee, representatives of various other departments, and the architect "to review the design, discuss current status, and to understand if the family members were willing to consider modifications to the current design." In July 2006, Pesin again asked the Commissioner to hold a public meeting to discuss a modified Memorial design, and threatened to hold his own public meeting. On July 17, 2006, Pesin wrote to Governor Corzine, "asking for a meeting . . . to directly request a public meeting on the design for the Memorial that was chosen with NO PUBLIC MEETING because of an undemocratic process that came out of Gov. McGreevey's office" during the design competition.
By letter dated July 27, 2006, Commissioner Jackson declined to revisit the Memorial's design, stating in part:
On [June 14, 2006,] the Family and Survivors Memorial Committee members met again at the [P]ark with representatives of my staff, Departments of Treasury, State Law & Public Safety, and the architect. The purpose of this second meeting was to review the design, discuss current status, and to understand if the family members were willing to consider modifications to the current design. It was the consensus of those family members present that this project should move forward as designed and that they did not want to delay this Memorial to their loved ones and the many victims of the September 11, 2001 [attacks] any longer. The Committee's representatives subsequently conveyed the group's position to me in writing.
Furthermore, while this design might impact views from some portions for the entry road, and parking area, it allows for pedestrians to walk both through the Memorial walls as well as on top of the berm itself where there will be exceptional views of the skyline and river. Empty Sky is designed to incorporate these views, not impede them. The [M]emorial is designed to attract people from their cars and get them to walk into and onto the Memorial. Walking through the Memorial's walls places you directly on the waterfront promenade.
Getting to this point has been a five-year, open process. The design was chosen two years ago, and has gone from conceptual design to the development of construction documents. The project has been issued all applicable permits and is ready for construction.
The Commissioner also noted that, although a nearby concert stage had been relocated, the Park "has well over a mile-long public walkway with exceptional skyline views throughout," and there are "many other vantagepoints [sic] that provide sweeping views of the harbor and skyline."
Meanwhile, on July 13, 2006, Langan wrote to the HPO asking for confirmation that the Memorial project did not require any approvals from the agency. During the review process, the HPO had consented to LURP "[issuing] the permit" even though it would be "send[ing] a memo stating our reservations." In her August 17, 2006 response to Langan, the HPO's Administrator stated that "there are no direct effects on New Jersey Register listed historic sites" because "no part of the project falls within the boundaries of the [Terminal and the Canal Basin]." The administration explained that the HPO had participated in both the EA and CGP reviews and was satisfied that the "project is consistent with the applicable laws and regulations concerning Historic Properties and Cultural Resources."
On September 19, 2006, Pesin, on behalf of appellant, again wrote Governor Corzine, declaring that appellant's counsel had found "serious deficiencies in the permitting process," and requested a meeting with him to "discuss the legal issues and the negative impacts of the design in its current location." Pesin complained that the height of the proposed walls "will block views."
By letter dated October 1, 2006, Governor Corzine advised appellant that he was allowing construction of the Memorial to continue. He explained that the Memorial was not only located where many survivors had been evacuated, but also adjacent to the Terminal, which became the site of the New Jersey World Trade Center Family Assistance Center. On March 5, 2007, appellant filed its notice of appeal.*fn7
We first address appellant's appeal from the July 27, 2006 letter of Commissioner Jackson; the August 17, 2006 letter of the HPO Administrator; and the October 1, 2006 letter of Governor Corzine. We are satisfied that those letters do not constitute final decisions of State agencies for purpose of appeal. Those letters are nothing more than responses to appellant's letters requesting assistance in revisiting the decision concerning the Memorial's design that had been made several years prior. Moreover, even if we were to construe those letters as final decisions for purpose of appeal, for reasons discussed infra, we conclude that appellant's appeal from the letters was untimely filed because appellant had actual notice of the matters complained of more than forty-five days prior to filing its notice of appeal. With that said, we turn to the issue of appellant's appeal from the May 6, 2005 CGP.
Appellant argues that LURP acted in an arbitrary, capricious and unreasonable manner when it authorized the issuance of a CGP No. 17 for the Memorial because: (1) the proposed waterfront development of a memorial did not match any of the descriptions listed in N.J.A.C. 7:7-7.17 or in any other category of CGPs; (2) LURP effectively created a new category of CGPs without following the DEP's rulemaking procedures in N.J.A.C. 7:7-7.1 or the Administrative Procedure Act (APA), N.J.S.A. 52:14B-1 to -15, N.J.A.C. 7:7-7.1(b); (3) the proposed development required an individual coastal permit because all aspects of the project did not qualify for a CGP; and (4) the project has "obvious" adverse environmental impacts, as demonstrated by EA.
Respondents argue that LURP's decision to issue the CGP No. 17 permit was reasonable based on the requirements of N.J.A.C. 7:7-7.17, and substantial credible evidence exists in the record supporting that decision. Respondents also contend that we should dismiss the appeal as untimely because it was not filed within the forty-five day limit of Rule 2:4-1(b). Respondents assert: (1) LURP's permitting decision was quasi-judicial and, therefore, subject to the time limit; (2) adequate notice was provided in the DEP Bulletin and, in any event, appellant had actual notice because construction of the Memorial began in June 2006; and (3) public interest supports the completion of the Memorial without further delay.
Appellants counter that the appeal was timely filed because: (1) LURP's decision to issue the CGP No. 17 was quasi-legislative and, therefore, not subject to the forty-five day time limit; (2) construction of the Memorial and legitimacy of the permitting process are matters of public importance; and (3) the notice that appeared in the DEP Bulletin announcing the permit application was defective because it was placed in the wrong section of the DEP Bulletin. We agree with respondents' argument that the notice of appeal was filed untimely.
"In this State, the right to seek judicial review of administrative action is of constitutional dimension." Hirth v. City of Hoboken, 337 N.J. Super. 149, 160 (App. Div. 2001). Rule 2:4-1(b) provides that "[a]ppeals from final decisions or actions of state administrative agencies or officers . . . shall be taken within 45 days from the date of service of the decision or notice of the action taken." Rule 2:4-4(a) permits only a single thirty-day extension, or a period not exceeding 30 days, "but only if the notice of appeal . . . was in fact served and filed in the time as extended."
When an appeal is untimely, the Appellate Division lacks jurisdiction to decide the merits. Alberti v. Civ. Serv. Comm'n., 41 N.J. 147, 154 (1963); In re Hill, 241 N.J. Super. 367, 372 (App. Div. 1990). It is well established "that when the time for taking an appeal has run the parties to a judgment have a vested right therein which cannot subsequently be taken from them. . . . [I]t is of the utmost importance that at some point judgments become final and litigations come to an end." In re Pfizer's Estate, 6 N.J. 233, 239 (1951) (internal citations omitted).
Nevertheless, our courts have not applied those time limits to: (1) an agency's quasi-legislative actions, Nw. Covenant Med. Ctr. v. Fishman, 167 N.J. 123, 135 (2001); (2) direct challenges to the substantive validity of an agency's regulation, Bergen Pines Hosp. v. N.J. Dep't of Human Servs., 96 N.J. 456, 471 n.10 (1984); (3) important public questions of general applicability, Jacobs v. N.J. State Highway Auth., 101 N.J. Super. 572, 576 (App. Div. 1968), rev'd on other grounds, 54 N.J. 393, 396 (1969); and (4) substantial constitutional questions in the public interest, Twp. of Franklin v. Bd. of Educ. of N. Hunterdon Reg'l High Sch., 74 N.J. 345, 348 (1977), cert. denied, 435 U.S. 950, 98 S.Ct. 1576, 55 L.Ed. 2d 800 (1978). See Pressler, Current N.J. Court Rules, comment 3 on R. 2:4-1 (2010) (discussion of exceptions). The first three exceptions are at issue, and we address them seriatim.
A. Quasi-Legislative versus Quasi-Judicial
"[T]he forty-five day rule applies only to an agency's quasi-judicial decisions that adjudicate the rights of a particular individual." Nw. Covenant Med. Ctr., supra, 167 N.J. at 135 (quoting Pressler, Current N.J. Court Rules, comment 2 on R. 2:4-1 (2001)). The Court explained: When determining whether an agency decision is a quasi-judicial act, "[t]he crucial question[ ][is] whether the fact finding involves a certain person or persons whose rights will be directly affected." Cunningham v. Dep[']t of Civil Serv., 69 N.J. 13, 22 (1975). Indeed, agencies engaged in quasi-judicial decision-making must "consider evidence and apply the law to facts as found, thereby exercising a discretion or judgment judicial in nature on evidentiary facts." Handlon v. Town of Belleville, 4 N.J. 99, 105 (1950). "The nature of the factual inquiries may be dispositive or assist in the disposition of the issue." Cunningham, supra, 69 N.J. at 22. [(Nw. Covenant Med. Ctr., supra, 167 N.J. at 136).]
In contrast to quasi-judicial action, an agency's quasi-legislative action involves considerations of policies and issues applicable to the general public as a whole and is intended to be applied generally and uniformly to all similarly situated persons, not to a specific person or factual situation. Metromedia, Inc. v. Director, Div. of Tax., 97 N.J. 313, 331-32 (1984).
Appellant argues that although an agency's permitting authority is "hybrid in nature" with attributes that are both quasi-legislative and quasi-judicial, the process of granting the GCP No. 17 permitting the construction of the Memorial was quasi-legislative. Not so.
N.J.A.C. 7:7 contains the Coastal Permit Program (CPP) Rules governing the procedures used by the DEP in reviewing permit applications and appeals from permit decisions under CAFRA, the Wetlands Act of 1970 (N.J.S.A. 13:9A-1 to -10), and the Waterfront Development Act (WDA), N.J.S.A. 12:5-1 to -11.
N.J.A.C. 7:7-1.1(a); In re Protest of Coastal Permit Program Rules, 354 N.J. Super. 293, 312 (App. Div. 2002).
Under the WDA,
[a]ll plans for the development of any waterfront upon any navigable water or stream of this State or bounding thereon, which is contemplated by any person . . . , in the nature of individual improvement or development or as a part of a general plan which involves the construction or alteration of a dock, wharf, pier, bulkhead, bridge, pipeline, cable, or any other similar or dissimilar waterfront development shall be first submitted to [DEP]. No such development or improvement shall be commenced or executed without the approval of the [DEP] first had and received, or as hereinafter in this chapter provided. [N.J.S.A. 12:5-3a.]
The DEP considers the regulated "waterfront" as: (1) any part of the Hackensack Meadowland Development District; (2) CAFRA's "coastal area" defined in N.J.S.A. 13:19-4; and (3) all tidal waterways lying outside of those two areas, including their adjacent uplands within 100 feet of the mean high water line. N.J.A.C. 7:7-2.3(a). For properties like the Park that are within 100 feet of the mean high water line and extend inland beyond that mark, the regulated waterfront is the lesser of: (1) 500 feet from the mean high water line; or (2) to the first paved public road, railroad or surveyable property line. N.J.A.C. 7:7-2.3(a)(3).
There are two types of permits available under the CPP Rules: individual coastal permits and coastal general permits. N.J.A.C. 7:7-1.5. Application and notice requirements for individual permits are found in N.J.A.C. 7:7-4.2 and -4.3, and they are comprehensive. In fact, the DEP's review for individual permits includes notice and public comment, and in the agency's discretion, a public hearing. N.J.A.C. 7:7-4.4 to -4.7.
On the other hand, general permits are categorical, that is, not specific to any particular project like an individual permit. They are permits "issue[d] for activities which are substantially similar in nature and cause only minimal individual and cumulative environmental impacts." N.J.A.C. 7:7-1.5(e). Consequently, applicants seeking a CGP under N.J.A.C. 7:7-7 do not specifically apply for a permit itself, as it is considered already issued. Instead, applicants apply for CGP "authorization" under one of the CGP categories set forth in the regulations. N.J.A.C. 7:7-7.1 and 7:7-7.3.
A CGP category is created only after the DEP conducts rule promulgation in compliance with the APA, and it:
1. . . . [D]etermines that the regulated development will cause only minimal adverse environmental impacts when performed separately, will have only minimal cumulative adverse impacts on the environment, and is in keeping with the legislative intent to protect and preserve the coastal area from inappropriate development;
2. . . . [D]etermines that the development will be in conformance with the purposes of applicable statutes; and
3. . . . [H]as provided public notice and an opportunity for a public hearing with respect to the proposed coastal general permit . . . .
Once a CGP category is adopted, the DEP "will not hold hearings on individual applications for a coastal general permit." N.J.A.C. 7:7-7.1(c)(3) (emphasis added). Instead, according to N.J.A.C. 7:7-4.2 and 7:7-7.1(i), applicants must follow the procedures for CGP authorization in N.J.A.C. 7:7-7.3. Also, according to N.J.A.C. 7:7-7.3(g), "[a]n application for authorization under a coastal general permit will also be reviewed following the procedures set forth at N.J.A.C. 7:7-4.8 through 4.11." Lastly, on the grant of all CGP approvals, the DEP is required to publish notice of its decision in the DEP Bulletin and notify persons who had requested notice. N.J.A.C. 7:7-4.8.
The various categories or types of CGPs are found in N.J.A.C. 7:7-7.5 to -7.29. According to the DEP's regulations, each CGP category must "contain a specific description of the type(s) of development which are authorized, including limitations for any single operation," and these limitations must include, "[a]t a minimum," (1) the "size and type of development" that can be undertaken, and (2) a "precise description of the geographic area to which the coastal general permit . . . applies." N.J.A.C. 7:7-7.1(d).
The DEP, however, "shall require an application for an individual coastal permit instead of a coastal general permit if [it] finds that additional permit conditions would not be sufficient, or that special circumstances make this action necessary to ensure compliance with statutory requirements." N.J.A.C. 7:7-7.3(h). Furthermore, "[w]hen all aspects of a project do not qualify for a coastal general permit, then the entire project shall require an individual coastal permit application." N.J.S.A. 7:7-7.3(i).
We determine from this regulatory background, that CGPs present a well-defined and distinct alternate process. The agency takes quasi-legislative action when it adopts new categories of CGPs. In doing so, it considers policies and issues applicable to the public as a whole, which will be applied generally and uniformly. Metromedia, supra, 97 N.J. at 331-32. By contrast, the agency takes quasi-judicial action when it decides whether to grant CGP authorization to a particular applicant. In doing so, it considers particular evidentiary facts and applies those to the established CGP categories. Nw. Covenant Med. Ctr., supra, 167 N.J. at 136.
We conclude that LURP acted in a quasi-judicial manner, and not in a quasi-legislative manner, when it granted the CGP No. 17 authorization for the construction of the Memorial because LURP considered particular evidentiary facts and applied those facts to the established categories. Therefore, this appeal does not fit into the recognized "quasi-legislative" exception to Rule 2:4-1(b).
B. Regulatory Challenge
Appellant raises no direct challenge to the substantive validity of N.J.A.C. 7:7-17. However, by arguing that the project does not substantively fit into that regulation's four corners, appellant is asserting that LURP's CGP No. 17 authorization for the Memorial project was a quasi-legislative action because it essentially amended that category of CGPs without formal rulemaking and is, therefore, outside the time limit of Rule 2:4-1(b). We disagree.
The APA generally defines an administrative rule as any "agency statement of general applicability and continuing effect that implements or interprets law or policy." N.J.S.A. 52:14B-2(e). "[A]n agency determination can be regarded as a 'rule' when it effects a material change in existing law." Nw. Covenant Med. Ctr., supra, 167 N.J. at 136. The APA itself recognizes that an agency action or determination "that implements or interprets law or policy" can constitute an "administrative rule." N.J.S.A. 52:14B-2(e).
If an agency's action or determination constitutes rulemaking, it must comply with the APA's specific procedures, St. Barnabas Med. Ctr. v. N.J. Hosp. Rate Setting Comm'n, 250 N.J. Super. 132, 143 (App. Div. 1991); and with N.J.A.C. 7:7-7.1(c) if it constitutes amending or modifying a CGP. Metromedia lists six factors to be assessed in determining whether agency action constitutes rulemaking:
[I]f it appears that the agency determination . . . (1) is intended to have wide coverage encompassing a large segment of the regulated or general public, rather than an individual or a narrow select group; (2) is intended to be applied generally and uniformly to all similarly situated persons; (3) is designed to operate only in future cases, that is, prospectively; (4) prescribes a legal standard or directive that is not otherwise expressly provided by or clearly and obviously inferable from the enabling statutory authorization; (5) reflects an administrative policy that (i) was not previously expressed in any official and explicit agency determination, adjudication or rule, or (ii) constitutes a material and significant change from a clear, past agency position on the identical subject matter; and (6) reflects a decision on administrative regulatory policy in the nature of the interpretation of law or general policy. These relevant factors can, either singly or in combination, determine in a given case whether the essential agency action must be rendered through rule-making or adjudication.
[Metromedia, supra, 97 N.J. at 331-32].
"All six of the Metromedia factors need not be present to characterize agency action as rulemaking, and the factors should not be merely tabulated, but weighed." In re Request for Solid Waste Util. Customer Lists, 106 N.J. 508, 518 (1987).
Here, LURP's decision granting CGP authorization to the Memorial project does not have wide coverage; was not intended to be applied to all similarly situated persons; was not designed to operate in future memorial cases; and does not reflect a new administrative policy. Nor did LURP amend or modify any of the CGP categories. Simply put, LURP's action was not an administrative rule changing or invalidating the CGP categories listed in N.J.A.C. 7:7-7.17. Thus, in issuing CGP No. 17, LURP did not undertake quasi-legislative action precluding effect of Rule 2:4-1(b).
C. Public Importance
Appellant argues that we should not apply the time limit of Rule 2:4-1(b) to dismiss its appeal, because construction of the Memorial and legitimacy of the permitting process are a matter of public importance. In response, respondents declare that public interest supports the completion of the Memorial without further delay. We are satisfied that public importance of the Memorial itself does not affect the time limitation of Rule 2:4-1(b).
Our courts have been reluctant to impose the time limit when the issues raised in the appeal involve important public questions of general applicability. For example, in Jacobs v. New Jersey State Highway Authority, supra, 101 N.J. Super. at 576, we held that an appeal disputing final agency action forcing its employees to retire at age sixty-five, which was filed sixteen months after the plaintiff's retirement date and after the forty-five day period allowed for appeal, should be entertained "because the case concerns a matter of public interest." Although the Supreme Court reversed on other grounds, it agreed "that the meritorious issue should be resolved." 54 N.J. at 396.
Appellant argues that the DEP's notification of DPF's application for CGP authorization, as published in its Bulletin on March 23, 2005, was deficient. Appellant contends that the agency's mistake in placing the notice of the application in the CAFRA permit application section of its Bulletin, rather than in the waterfront development application section of the Bulletin made it impossible for anyone to challenge LURP's decision within the time prescribed by Rule 2:4-1(b). Although issues involving the lack of notice can be important public questions of general applicability, see SMB Assocs. v. N.J. Dep't of Envtl. Prot., 137 N.J. 58, 61-62 (1994), we are satisfied that the principle is not applicable to this matter.
What is more, we need not decide the question presented by appellant. We are satisfied that even if any publications were required by the administrative regulations, the appeal is barred pursuant to Rule 2:4-1(b) because appellant did not file its notice of appeal within forty-five days of actual notice of LURP's issuance of the CGP No. 17.
"[G]enerally, a cause of action is deemed to accrue when facts exist which authorize one party to maintain an action against another." Marini v. Borough of Wanaque, 37 N.J. Super. 32, 38 (App. Div. 1955). Additionally, "actual notice has always been regarded as superior to constructive notice, such as that given by publication." Ridel v. Sheeran, 73 N.J. Super. 105, 118 (Law Div. 1962) (holding that a complaint in lieu of prerogative writs was time barred when it was filed more than forty-five days after actual notice of the governing body's grant of a special exception from a zoning ordinance, notwithstanding the failure of the governing body to publish notice of its action). Although Ridel has been questioned, Toutphoeus v. Joy, 81 N.J. Super. 526, 532 (App. Div. 1963); Stokes v. Twp. of Laurence, 111 N.J. Super. 134 (App. Div. 1970), we are satisfied that the principle is applicable here because of the unreasonable delay by appellant in filing its appeal after having actual notice of the DEP's action.
Here, appellant is a sophisticated third-party objector, which, after observing the Memorial project move forward since 2003, raised deficiencies in the 2004-2005 permitting process only late in 2006 and 2007 after many months of trying to modify the Memorial design. Appellant had actual notice when construction commenced in June 2006. Actual notice was confirmed in appellant's September 19, 2006 letter to Governor Corzine where it stated that its attorney had found "serious deficiencies in the permitting process."
We determine that appellant, having actual notice of the permit's issuance, delayed too long without good cause in filing its notice of appeal. See SMB Associates, supra, 137 N.J. at 61 (agreeing with the dissent's general principle that "notions of fundamental fairness should [ordinarily] preclude sophisticated third-party objectors from intervening in litigation after observing its progress for several years."). As previously discussed, the same is also true as to appellant's filing its notice of appeal from the July 27, 2006 letter of Commissioner Jackson; the August 17, 2006 letter of the HPO Administrator; and the October 1, 2006 letter of Governor Corzine. Accordingly, we conclude that the appeal is time barred.