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In re Riverview Development

January 27, 2010

IN THE MATTER OF RIVERVIEW DEVELOPMENT, LLC, WATERFRONT DEVELOPMENT PERMIT NO. 0908-05-0004.3 WFD 060001


On appeal from a Final Agency Decision of the Department of Environmental Protection.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued December 9, 2009

Before Judges Stern, Sabatino and Newman.

We are asked in this appeal to consider whether townhouse residents, whose views of the Hudson River and the New York City skyline will be fully or partially blocked by a proposed high-rise development, have the right to a trial-type hearing in the Office of Administrative Law ("OAL") to contest the high-rise developer's application to the Department of Environmental Protection ("DEP") for a waterfront development permit under the Coastal Zone Management Regulations, N.J.A.C. 7:7E-1.1 to -8A.5. The residents also complain that the project will worsen traffic near their hillside dwellings. The DEP Commissioner denied the residents' demand for an OAL hearing, concluding that they lacked "a particularized property interest sufficient to require a hearing on constitutional or statutory grounds," as is necessary under N.J.S.A. 52:14B-3.2.

Through their homeowners' association, the residents now appeal the Commissioner's denial of an OAL hearing. We affirm.

I.

The limited record before us presents these facts and chronology of events bearing upon our analysis.

Appellant, Bergen Ridge Homeowners Association, Inc. ("Bergen Ridge"), is a not-for-profit homeowners' association representing the owners of thirty-four townhomes within Lot 6B of Block 435 of North Bergen. The townhomes are located on a gently-sloped plateau that juts out from the side of the Palisade cliff, between eighty and ninety feet above the Hudson River. Access to the Bergen Ridge complex is only available from Bulls Ferry Road, a road that runs diagonally up the side of the cliff. Bulls Ferry Road is connected to River Road, a thoroughfare which runs along the banks of the Hudson, and Kennedy Boulevard, which runs along the top of the Palisade.

The townhomes in the Bergen Ridge complex were built in or about 1997. The units are all approximately thirty feet high, with rooflines between 110 and 119 feet in elevation above the Hudson River. According to a valuation prepared at Bergen Ridge's request in January 2006 by Donald J. Helmstetter, a real estate appraiser, the townhomes "are all considered to be in good condition and they all have attractive functional floor plans and layouts." Additionally, as Helmstetter noted, "[a]ll of the units have an unimpeded view to the east of the Hudson River and the Manhattan Skyline."

Respondent, Riverview Development, LLC ("Riverview"), is a corporation with its headquarters in Rockaway Beach, New York. In May 2005, Riverview acquired from North Bergen Township several vacant lots along the banks of the Hudson River: Lots 4A and 4B and a portion of Lot 1 of Block 438.

At some point prior to Riverview's purchase, a predecessor in title, Slazer Development, L.L.C. ("Slazer"), performed grading and filling work on the lots without a permit. The unauthorized grading and filling triggered a notice of violation by the DEP. Because the DEP's notice of violation was served on Slazer after Riverview had already bought the property, Riverview was made subject to the violation notice. Subsequently, Riverview negotiated an administrative consent order ("ACO") with Slazer and the DEP to remedy the violation.

Riverview's Initial and Amended Permit Application

In November 2005, Riverview filed an application with the DEP for a waterfront development permit, as required under the Waterfront Development Law of 1914, N.J.S.A. 12:5-3a, and the associated Coastal Permit Program Rules, N.J.A.C. 7:7-2.3. The DEP permit, if approved, would authorize Riverview to build a residential housing complex on the property. The project is located in what DEP regulations classify as the "Hudson River Waterfront Area." N.J.A.C. 7:7E-3.48(a)2.

As proposed by Riverview, the new complex would consist of seventeen townhomes along a 1,150 foot riverside walkway; a two-floor parking structure; and three high-rise towers. The towers would rise to a maximum height of ninety-five feet and would hold 256 condominium units.

Riverview's initial waterfront permit application only referenced Lots 4A and 4B, but not Lot 1, and provided notice of the impending project to property owners located within 200 feet of those two particular lots. As a result of complaints about alleged deficiencies in the permit application, Riverview withdrew its application in March 2006. Riverview then resubmitted an application to the DEP in May 2006, with the proper lots identified and the appropriate notices supplied.

At the request of Bergen Ridge, the DEP convened a public hearing on June 27, 2006 in North Bergen, giving the neighboring property owners a chance to present their objections and concerns. In advance of that public hearing, Riverview provided the DEP with a water quality proposal, a stormwater management report, and a traffic study.*fn1

The High-Rise Structure Regulations

The key regulatory provisions, for purposes of this appeal, are the DEP's "High-rise structures" regulations, codified at N.J.A.C. 7:7E-7.14. These regulations state, in pertinent part:

(a) High-rise structures are structures which are more than six stories or more than 60 feet in height as measured from existing preconstruction ground level.

(b) The standards for high-rise structures are as follows:

1. High-rise structures are encouraged to locate in an urban area of existing high density, high-rise and/or intense settlements;

2. High[-]rise structures within the view of coastal waters shall be separated from coastal waters by at least one public road or an equivalent area (at least 50 feet) physically and visually open to the public except as provided by N.J.A.C. 7:7E-3.48;

3. The longest lateral dimension of any high[-]rise structure must be oriented perpendicular to the beach or coastal waters, except for a high[-]rise structure that is located in the Redevelopment Zone of the City of Long Branch and authorized pursuant to the Long Branch Redevelopment Zone Permit at N.J.A.C. 7:77.4.

4. The proposed structure must not block the view of dunes, beaches, horizons, skylines, rivers, inlets, bays, or oceans that are currently enjoyed from existing residential structures, public roads or pathways, to the maximum extent practicable;

6. The proposed structure must be in character with the surrounding transitional heights and residential densities, or be in character with a municipal comprehensive development scheme requiring an increase in height and density which is consistent with all applicable Coastal Zone Management rules;

7. The proposed structure must not have an adverse impact on air quality, traffic, and existing infrastructure; and

[N.J.A.C. 7:7E-7.14(a)-(b) (emphasis added).]

In light of these requirements, the DEP requested from Riverview a "view shed" analysis.*fn2 The view shed analysis would depict anticipated views of the proposed project from various nearby locations.

Traffic Issues and the Related Regulations

Riverview's traffic study was performed by Schoor DePalma, an engineering firm. The study anticipated the addition of a fourth "leg" to the Bulls Ferry Road/River Road intersection, which would provide a driveway into the new development. Additionally, the plans called for an exclusive left-turn lane into the project from River Road southbound, so as to ease traffic concerns in that direction. Two additional driveways with exclusive access onto northbound River Road would be built, one above and one below the main intersection.

Schoor DePalma's traffic study, which had originally been submitted with Riverview's initial permit application, but had been redrawn to incorporate comments from Hudson County, specifically addressed the traffic requirements codified at N.J.A.C. 7:7E-8.14. Section 8.14 restricts coastal development that causes disturbance to traffic systems. The regulation states, in relevant part, that:

(a) Traffic is the movement of vehicles, pedestrians or ships along a route.

(b) Coastal development shall be designed, located and operated in a manner to cause the least possible disturbance to traffic systems.

(d) Any development that causes a location on a roadway to operate in excess of capacity Level D is discouraged. A developer shall undertake mitigation or other corrective measures as may be necessary so that the traffic levels at any affected intersection remain at capacity Level D or better. A developer may, by incorporating design modification or by contributing to the cost of traffic improvements, be able to address traffic problems resulting from the development, in which case development would be conditionally acceptable. Determinations of traffic levels which will be generated will be made by the New Jersey Department of Transportation. [N.J.A.C. 7:7E-8.14(a)-(d) (emphasis added).]

Schoor DePalma rated the site as generally having, at worst, a level of service*fn3 of "D", both from Bulls Ferry Road onto River Road and from southbound River Road onto Bulls Ferry Road. The traffic expert further opined that the lanes of River Road directly affected by entry and exit of vehicles from the proposed development would not suffer a level of service worse than "B", either in the morning or evening rush hours.

The DEP Staff's Preliminary Analysis

Prior to the public hearing, staff in the Bureau of Inland Regulation within the DEP's Division of Land Use Regulation prepared a written preliminary analysis of the Riverview project's compliance with applicable waterfront regulations. The preliminary analysis, dated June 27, 2006, was signed by a DEP geologist, Joslin Tamagno.

In their preliminary analysis, the DEP staff favorably noted that "[t]he subject site is located in an urban area where high-rise development is common." The analysis also noted that the "proposed high-rise structures will be 95 feet in height ...


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