On appeal from the Final Decision of the Department of Environmental Protection.
The opinion of the court was delivered by: Fuentes, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman, Fuentes and Gilroy.
In this appeal, the Township of Rockaway (Rockaway) challenges a decision by the New Jersey Department of Environmental Protection (the DEP) that a proposed church campus construction project submitted by the Christ Church (the Church) was exempt from the provisions and regulations of the Highlands Water Protection and Planning Act, N.J.S.A. 13:20-1 to -35 (the Highlands Act). Particularly, the DEP found that the Church's project was exempt from the Highlands Act under N.J.S.A. 13:20-28a(4), as a reconstruction project that is "within 125% of the footprint of the lawfully existing impervious surfaces on the site, provided that the reconstruction does not increase the lawfully existing impervious surface by one-quarter acre or more." Ibid.
As framed by the parties, we are required to determine whether the DEP: (1) misconstrued the meaning of the terms "footprint" and "reconstruction" contained in N.J.S.A. 13:20-28a(4); (2) erred in finding that the Church's project was within 125% of the footprint of the lawfully existing impervious surfaces and that the project did not increase the impervious surface by one-quarter acre or more; and (3) erred in finding that certain pre-existing impervious surfaces on the property were lawful.
Mindful that our standard of review requires us to give substantial deference to an administrative agency's interpretation of a statute that the agency is charged with enforcing, we conclude that, under the facts presented, the DEP's interpretation of the term "reconstruction" in N.J.S.A. 13:20-28a(4) is consistent with the public policy underpinning the Highlands Act and constitutes a sustainable exercise of the agency's enforcement authority. These same principles lead us to uphold the DEP's interpretation of the term "footprint" in N.J.S.A. 13:20-28a(4), in determining that the Church project does not increase the pre-existing impervious surface by more than one-quarter acre and is within 125% of the lawfully existing impervious surfaces.
The following facts will inform our discussion of the legal issues raised in this appeal.
On August 23, 2005, the Church acquired a one hundred acre lot located within the Highlands preservation area*fn1 in Rockaway. The lot included approximately 17.18 acres of pre-existing impervious surface that had been developed with a two-story office building, a one-story industrial building, a garage/maintenance building, paved driveways and parking areas, a ball field, a sanitary pump-station, and a well that Rockaway used to supply water to its residents. These developments were constructed in the early 1980's by Hewlett Packard, Inc., the then owner of the lot.
The United States Army Corps of Engineers (the Corps) had jurisdiction over the filling of wetlands at the time. In August of 1984, the Corps learned that Hewlett Packard filled "[a]bout 20 acres of riverine and scrub/shrub wetlands" in order to construct "parking lots, buildings and a baseball field." The record provides no detail on the exact location of the filled wetlands. There is also no evidence that Hewlett Packard obtained a permit to fill the wetlands. Despite this, the Corps did not initiate enforcement proceedings against Hewlett Packard nor did the Corps cite it for filling the wetlands without authorization. By December of 1985, the Corps reported that the fill had been mitigated and was deemed acceptable.
The Church acquired this property with the intention of converting the developed property into "a church campus consisting of a 2,512-seat sanctuary, a 350-student K-5 elementary school, a gymnasium, recreational fields, administrative offices[,] and cafeteria/dining areas, all [of which would be] serviced by parking areas and internal roadways." The Church's application stated that the new campus would be located in substantially the same location as the existing buildings but would be slightly smaller than the existing development, decreasing the total impervious surface from 17.18 acres to 17.02 acres. The Church did not intend to disturb any of the remaining undeveloped land on the property.
On August 24, 2004, the day after it purchased the property, the Church submitted an application to the DEP requesting a determination as to whether its proposed church campus was exempt from the Highlands Act's regulations pursuant to N.J.S.A. 13:20-28a(4). The Church also submitted an application for site-plan approval to the Rockaway Planning Board (the Planning Board).
By letter dated September 27, 2004, Rockaway requested permission from the DEP to participate in the proceedings related to the Church's application because: (1) the Church had a site-plan-approval request pending before the Planning Board; and (2) a primary well for Rockaway's water supply was located on the Church's property.
On September 30, 2004, the DEP sent the Church an Applicability Determination, granting its exemption application. In this letter, the DEP did not make factual findings in support of its ultimate determination. Rockaway thereafter filed a timely appeal of the DEP's determination to this court. After some initial motion practice, we dismissed Rockaway's appeal without prejudice and remanded for the DEP to make specific factual findings to support its ultimate determination.
On September 23, 2005, the Church submitted to the DEP an application for exemption, which was substantially similar to its earlier filing; this application provided for a smaller campus, reducing the proposed developed area to 16.94 acres. The DEP review included discussions with the Church's engineer, a site visit, an investigation into the filled wetlands on the property, and public comments on the proposal.
On February 5, 2007, the Planning Board approved the Church's development plan. Approximately six months later, the DEP granted the Church's exemption application. The approval letter from ...