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Lakeside Manor v. State of New Jersey Department of Environmental Protection

August 1, 2011

LAKESIDE MANOR, APPELLANT,
v.
STATE OF NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, RESPONDENT.
MOUNTAIN LAKES ESTATES, APPELLANT,
v.
STATE OF NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, RESPONDENT.



On appeal from the New Jersey Department of Environmental Protection.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued March 15, 2011

Before Judges Parrillo, Espinosa and Skillman.

The opinion of the court was delivered by SKILLMAN, J.A.D. (retired and temporarily assigned on recall).

In August 2004, the Governor signed into law the Highlands Water Protection and Planning Act (the Highlands Act), N.J.S.A. 13:20-1 to -35, which provides for regional land use planning in a part of the northwest corner of the State called the Highlands Region. See N.J.S.A. 13:20-7(a). The Highlands Act creates two areas within the Highlands Region: a planning area in which development consistent with the Act's goals is encouraged, and a preservation area, in which further development is strictly regulated. See N.J.S.A. 13:20-7(b), (c); N.J.S.A. 13:20-10(b), (c).

The Highlands Act contains a number of exemptions from its regulatory provisions, including one for any major Highlands development project that received one of a specified list of municipal land use approvals under the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, and at least one of a specified list of permits issued by the Department of Environmental Protection (DEP) before March 29, 2004. N.J.S.A. 13:20-28(a)(3). This appeal requires us to interpret the requirements of this exemption.

I.

Appellants are affiliated companies that own adjacent tracts of land in the preservation area of the Highlands Region. On October 21, 1999, appellants obtained amended preliminary and final subdivision and site plan approvals for development of the two sites. Mountain Lakes obtained approval for the subdivision of a 130-acre site into 128 building lots for detached single family homes. Lakeside Manor obtained site plan approval for construction of forty-seven three-bedroom townhouses on a 10.801-acre site.

After obtaining these municipal land use approvals, appellants applied for and obtained DEP permits for construction of the facilities required to provide sanitary sewer and water service to the proposed developments. On September 7, 2000, the DEP issued treatment works approvals (TWAs) to the Wanaque Borough Sewerage Authority (Sewerage Authority) authorizing construction and operation of sewer systems to serve the developments. On March 9, 2001, the DEP issued permits to the Wanaque Borough Water Department (Water Department) for construction of water main extensions to serve the developments. Appellants also obtained a number of other state, county, and municipal approvals required for construction of their development projects.

Based on its TWA, Lakeside Manor constructed the complete sewer lines for its development. Those sewer lines were approved by the Sewerage Authority in 2002 and put into service in 2003. Based on its water extension permit, Lakeside Manor also constructed the complete water lines for its development. In addition, Lakeside constructed the roadway system for the entire development, obtained building permits for eighteen townhouse units in three buildings, and actually constructed six units.

Based on its TWA, Mountain Lakes constructed the main sewer line into its development and constructed laterals from the main sewer line into the building envelopes for thirteen houses. This sewer line was approved by the Sewerage Authority in 2002 and put into service in 2003. Based on its water extension permit, Mountain Lakes extended the water line sufficiently to provide water service to those thirteen homes. The Water Department approved this extension and three houses were connected to the water line.

The effective date for the exemption from the Highlands Act provided by N.J.S.A. 13:20-28(a)(3) was March 29, 2004, which was approximately four-and-a-half months before enactment of the Highlands Act.*fn1 As of that date, appellants had obtained the municipal land use approvals required for their ...


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