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Roseff v. MMK Reinsurance

August 5, 2010

HARVEY ROSEFF, FRED GILLESPIE, JOSEPHINE LEE, ADRIAN GONZALEZ, MERWYN LEE, AND LORNA LEE, PLAINTIFFS-APPELLANTS,
v.
MMK REINSURANCE, LTD., LEE KELLOGG, HUDSON FARM, AND STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION, DIVISION OF FISH AND WILDLIFE, DIVISION OF WATER QUALITY AND DIVISION OF WATERSHED MANAGEMENT, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Sussex County, Docket No. L-295-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 27, 2010

Before Judges Cuff and Waugh.

Plaintiffs Harvey Roseff, Fred Gillespie, Josephine Lee, Adrian Gonzalez, Merwyn Lee, and Lorna Lee*fn1 challenge a final administrative action of the Division of Fish and Wildlife (DFW), part of defendant Department of Environmental Protection (DEP).*fn2 In 2007, DFW granted defendant Hudson Farm a license to operate a commercial shooting preserve (CSP). Hudson Farm is owned by defendants MMK Reinsurance, Ltd. (MMK) and Lee Kellogg. The license has since been renewed on a yearly basis.

The gist of plaintiffs' challenge is that DFW did not adequately consider the environmental and other harms that would, according to plaintiffs, result from the operation of a CSP in proximity to a residential neighborhood and related recreational facilities. They also challenge the constitutionality, on vagueness grounds, of one of the licensing criteria in the governing statutes, specifically the requirement that "[t]he operation of such shooting preserve shall not conflict with a prior reasonable public interest." N.J.S.A. 23:3-29(d)(1).

Although we uphold the constitutionality of that statute, we have determined that DFW has misinterpreted the statutory language at issue. Consequently, we remand to DFW for reconsideration of its licensing decision.

I.

The following statutory background, facts, and procedural history inform our decision on this appeal.

A.

The holder of a CSP license is allowed "to operate a 'commercial pheasant, mallard, quail and partridge-shooting preserve.'" N.J.S.A. 23:3-29(d). A preserve must contain at least fifty acres, excluding safety zones; and its boundaries must be "clearly defined by posting at intervals of not more than 200 feet with signs to be prescribed by [DFW]." N.J.S.A. 23:3-28(c). Pursuant to N.J.S.A. 23:4-16(d), a "safety zone" is any area within "450 feet of any occupied building" or "any school playground." An "occupied building" is "any building constructed or adapted for overnight accommodation of a person, or for operating a business or engaging in an activity therein, whether or not a person is actually present." Ibid.

Pursuant to N.J.S.A. 23:3-29, DFW "may" issue certain licenses with respect to game birds "when it appears that the application is made in good faith, and is in the public interest." With respect to a CSP license, the following additional requirements apply:

(1) The operation of such shooting preserve shall not conflict with a prior reasonable public interest; and

(2) The applicant shall have produced evidence satisfactory to the division that he will raise or purchase for liberation and liberate on the shooting preserve a total of at least 500 pheasant, mallard, quail and partridge or combination thereof between September 1 of the year for which the license was issued and the following May 1. [N.J.S.A. 23:3-29(d)(1).]

DFW has never adopted regulations implementing its authority to issue CSP licenses. Nevertheless, certain requirements are contained in its "Commercial Shooting Preserve Information Sheet," which is available on DFW's website.*fn3 The information sheet includes the statutory requirements set out above, as well as additional, non-statutory requirements informally adopted by the DFW. The latter include a requirement that shooters "use [] steel or other U.S. Wildlife Service approved nontoxic shot," that the applicant disclose any lease agreement for the land, and that two copies of the tax assessor's map for the property accompany the application. The information sheet states that the maps must clearly delineate the CSP's boundaries, buildings on and adjacent to the property, and safety zones. The information sheet also states that "[a] field inspection of the proposed preserve may be conducted prior to receiving [the] permit." Once the CSP license has been granted, the licensee is required to submit annual reports at the end of each hunting season. The report must include daily kill and stocking sheets. There is, however, no statutory or informal requirement that adjacent landowners be given notice of the application or an opportunity to be heard in opposition to it.

The parties have not raised the issue of whether the contents of the information sheet should have been the subject of rulemaking under the Administrative Procedures Act, N.J.S.A. 52:14B-1 to -15. See Metromedia, Inc. v. Dir., Div. of Taxation, 97 N.J. 313, 328-32 (1984). Nevertheless, our review of the contents of the sheet suggests that rulemaking would be appropriate.

B.

Hudson Farm first applied for a CSP license in August 2000, and was granted License No. 202106. Its preserve originally consisted of 620 acres in Hopatcong and Byram Townships. It sought and received annual renewals of that CSP license. According to DFW, it submitted the required annual report each year at the end of the shooting season.

In 2007, Hudson Farm decided to expand its preserve. It submitted an application for a new license, which included a contiguous addition (Area 1) to the original preserve, as well as an additional, but non-contiguous 878 acre area located in Andover and Byram Townships (Area 2). DFW conducted a field inspection of the additional sites on September 16, 2007, and determined that both new parcels complied with the statutory requirements. It issued License No. 272106 on October 2, 2007. The licensed ...


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