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John and Nancy Yoder v. New Jersey Department of Environmental Protection

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 6, 2011

JOHN AND NANCY YODER, PETITIONERS-APPELLANTS,
v.
NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, LAND USE REGULATION PROGRAM, RESPONDENT-RESPONDENT.

On appeal from the New Jersey Department of Environmental Protection, Agency Ref. No. 1530-04-0001.1.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 13, 2011

Before Judges Messano, Yannotti and Espinosa.

Appellants John Yoder (Yoder) and Nancy Yoder appeal from a final determination of the Commissioner (Commissioner) of the New Jersey Department of Environmental Protection (DEP or department), which upheld the revocation of a permit issued to appellants under the Coastal Area Facility Review Act (CAFRA), N.J.S.A. 13:19-1 to -21, to construct a single-family home on the property, and the disapproval of amendments to the Stafford Township (Township) Water Management Plan (WMP), adopted under the Water Pollution Control Act, N.J.S.A. 58:10A-1 to -60, and the Ocean County (County) Water Quality Management Plan (WQMP), adopted under the Water Quality Planning Act, N.J.S.A. 58:11A-1 to -16. For the reasons that follow, we affirm.

Appellants own property on Cedar Run Dock Road in the Township. The property is located within an area subject to regulation under CAFRA, which requires the issuance of a permit for certain construction projects. N.J.S.A. 13:19-5. The property is surrounded by protected wetlands, including salt marshes that comprise the Edwin B. Forsyth National Wildlife Refuge. The property also borders upon Cedar Run Creek, which the DEP has declared a Category One stream, which are waters designated by the DEP for purposes of implementing policies to protect against degradation. N.J.A.C. 7:9B-1.4.

In addition, the property is within the Pinelands National Reserve established by Congress, 16 U.S.C.A. § 471i(c). The area has been designated as a Forest Area under the Federal legislation. 16 U.S.C.A. § 471i(c); N.J.A.C § 7:50-5.12. The property is not within the planning jurisdiction of the Pinelands Commission (Commission) under N.J.S.A. 13:18A-11; however, the Commission is required to adopt a Comprehensive Management Plan (CMP) as to any part of the Pinelands National Reserve, including areas within the Reserve that lie outside of its planning jurisdiction. See N.J.S.A. 13:18A-8.

Prior to 1993, the developed lots on Cedar Run Dock Road had septic systems. Those systems began to fail in the late 1980's and early 1990's, and there were concerns about the impact such failures would have on the environment in the surrounding areas. To address these concerns, the Township and County proposed the construction of a public sewer line in the area.

In 1989, the Township and County adopted a proposal to amend the Township's WMP and the County's WQMP and forwarded the plan to the DEP for review. The proposed amendments allowed construction of the sewer line but limited connections to existing residential and commercial developments. The DEP sought comments on the proposal from the Pinelands Commission (Commission), as required by N.J.A.C. 7:15-3.7. The Commission informed the DEP that its CMP policy indicated that sewer service should be provided in the area "only if there is a demonstrated health problem, and then only to serve existing development." The DEP approved the proposed amendments.

Thereafter, the Township requested that the DEP issue a CAFRA permit for construction of the sewer line. On January 18, 1993, the DEP granted the permit, subject to several conditions. The permit stated that "[s]ewer service can be provided to existing residential and commercial development by individual grinder pump and lateral to [several listed] properties only." The permit also stated that:

Any additional proposed sewer service tie ins or construction of laterals to the approved force main must receive a modification in detail to this CAFRA permit . . . and an amendment to the Ocean County Areawide Water Quality Management (208) Plan . . . prior to providing service.

At the time the permit was issued, George Hulse owned the subject property. The only structure on the lot was a storage shed. The property did not have a septic system or plumbing. The property also was not among the forty-three lots identified in the CAFRA permit.

In 2003, Hulse entered into a contract to sell the property to Gabriel Castrovilly (Castrovilly) and Beth Holmes (Holmes).

The sale was conditioned upon Castrovilly and Holmes obtaining permits required to build a new home on the lot. Castrovilly and Holmes hired Yoder to prepare an application on their behalf for a CAFRA general permit.

The CAFRA application was submitted to the DEP on January 15, 2004. It stated that "[t]he lot is serviced by city sewer[.]" The application also included maps and plans that indicated the property was accessible to sewer service. On April 14, 2004, the DEP granted the application and issued the CAFRA permit.

The DEP thereafter learned that the statements in the application regarding sewer service were not correct. Accordingly, the DEP revoked the permit effective May 3, 2005. Castrovilly and Holmes filed an administrative appeal challenging that decision.

Castrovilly and Holmes thereafter took steps to obtain the approvals required to construct the home. They requested that the DEP approve amendments to the Township's WMP and the County's WQMP to allow connection of the proposed dwelling to the existing sewer line. In September 2005, the DEP denied the application. Castrovilly and Holmes filed an administrative appeal challenging this decision. In 2006, appellants acquired the property.

In early 2008, the DEP attempted to settle the dispute by proposing to amend the Township's WMP and the County's WQMP to allow sewer connections to all residential and commercial developments along Cedar Run Dock Road. The Township, the United States Department of the Interior, the Commission, and others opposed the proposal.

In July 2009, the DEP withdrew the proposal and transferred the matters to the Office of Administrative Law for a hearing before an Administrative Law Judge (ALJ). On April 27, 2010, the ALJ rendered an initial decision affirming the DEP's determination to revoke the 2004 CAFRA permit and the DEP's rejection of the request to amend the Township's WMP and the County's WQMP. On July 22, 2010, the Commissioner adopted the ALJ's initial decision. This appeal followed.

Appellants raise the following arguments for our consideration: 1) the findings of fact and conclusions of law by the ALJ and the Commissioner are arbitrary, capricious and unreasonable; and 2) the ALJ and the Commissioner improperly relied upon the change in the Township's zoning ordinance as a basis to reject the administrative appeals.

Appellate review of a final determination of an administrative agency is limited in scope. Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 9 (2009) (citing In re Herrmann, 192 N.J. 19, 27 (2007); In re Carter, 191 N.J. 474, 482 (2007)). In reviewing an agency's decision, we consider: (1) whether the agency's action violates express or implied legislative policies; (2) whether there is substantial evidence to support the agency's factual findings; and (3) whether, in applying the law to the facts, "the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors." Id. at 10 (quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)).

We note initially that the record fully supports the Commissioner's decision to revoke the CAFRA permit that allowed the construction of a single-family home on appellants' property. As we stated previously, the application for that permit erroneously stated that the property was serviced by a sewer line. When the department learned that the sewer line did not extend to appellants' property, it revoked the permit. Appellants do not argue that the DEP erred in doing so.

Appellants nevertheless contend that they should be permitted to connect their proposed dwelling to the sewer line because the 1993 CAFRA permit allowed "existing residential and commercial development[s]" to be connected to the sewer line. Appellants point out that when the CAFRA permit was issued in 1993, there was a shed on the property. They contend that the shed is a structure that meets the definition of a "development" under the department's regulations.

The Commissioner found, however, that the shed on appellants' property could not be considered an "existing residential and commercial development" under the 1993 CAFRA permit. The Commissioner noted that the permit specifically identified by lot and block the existing residential and commercial developments to be connected to the sewer line. Moreover, the record indicates that the sewer line was constructed in order to address the failing septic systems in the then-existing developments. The shed on petitioners' property did not have a septic system or plumbing.

The department's interpretation of the terms of a permit it has issued is entitled to substantial deference. Mutschler v. N.J. Dept. of Environ. Prot., 337 N.J. Super. 1, 13 (App. Div.), certif. denied, 168 N.J. 292 (2001). The DEP's interpretation of the 1993 permit is consistent with the plain language of the permit. Furthermore, the interpretation is in accord with the limited purpose for which the permit was issued, which was to address the failing septic systems on the forty-three lots identified in the permit.

Next, appellants argue that denial of their application to amend the Township's WMP and the County's WQMP was arbitrary and capricious. We disagree. Here, the DEP reasonably found that allowing appellants to tie into the sewer line would have an adverse impact on the environmentally sensitive area. The record supports that finding.

As we have explained, the property borders a Category One stream. It is surrounded by protected wetlands, including salt marshes in the Edwin B. Forsyth National Wildlife Refuge. The property also is within an area designated by the State Planning Commission as "environmentally sensitive." Moreover, the property is located within the Forest Area of the Pinelands National Reserve.

Appellants contend, however, that the Commissioner's determination is arbitrary and capricious because the proposed development will have a de minimus impact on the environment. The Commissioner reasonably found, however, that allowing appellants to tie into the sewer line and develop the property with a single-family home would open the door to developments by other similarly-situated property owners. The Commissioner did not err by considering the potential cumulative detrimental impact upon the environment that could result from such developments. See Gardner v. N.J. Pinelands Comm'n, 125 N.J. 193, 208 (1991).

Appellants further argue that the ALJ erred by considering evidence concerning the Township's amended zoning regulations, which precluded the construction of a home on appellants' property. Appellants assert that it was improper for the ALJ to consider this evidence because it was only presented in a pre-trial brief. We do not agree. The ALJ properly allowed the evidence to be introduced in the administrative hearing because appellants had acknowledged they were aware of the zoning change.

Appellants also contend that the evidence regarding this zoning change was not relevant because the DEP's authority in this area preempts the Township's local zoning regulation. This contention is without merit. Here, the Township amended its zoning ordinance to prohibit the construction of single-family dwellings on Cedar Run Dock Road. The DEP may not approve an amendment to a WMP or WQMP that is inconsistent with a local zoning regulation unless there is a compelling reason for doing so. N.J.A.C. 7:15-5.18(b)(1)-(6). Appellants failed to establish a compelling reason for the DEP to override the Township's zoning regulation.

Affirmed.

20111006

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