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In Re: Exemption From Transition Area Requirements For Freshwater

May 2, 2012

IN RE: EXEMPTION FROM TRANSITION AREA REQUIREMENTS FOR FRESHWATER WETLANDS PROTECTION ACT FOR JF BUILDERS.


On appeal from the Commissioner, New Jersey Department of Environmental Protection.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 28, 2012

Before Judges Payne, Reisner and Accurso.

Appellants challenge a final decision of the Department of Environmental Protection (DEP) granting respondent J.F. Builders, Inc. (J.F.)*fn1 an exemption from the transition area requirements of the Freshwater Wetlands Protection Act (FWPA). Because the DEP's decision is supported by substantial credible evidence and is consistent with the FWPA and the agency's implementing regulations, we affirm. See R. 2:11-3(e)(1)(D).

I

The dispute focuses on a building lot in Sea Isle City. The lot was created by subdividing a larger piece of property, after J.F.'s predecessor in title sought and obtained preliminary and final subdivision approval from the Sea Isle City Planning Board in 1981. J.F. bought the lot in 1988 and, in 2009, applied to the DEP for a Transition Area Waiver to permit construction of a duplex on the lot. Construction of a duplex residential building was consistent with the local zoning ordinance, which permitted two-family structures in the zone. By letter dated July 15, 2010, the DEP granted the application, pursuant to N.J.A.C. 7:7A-2.8(f). The approval was later publicly memorialized in the August 4, 2010 DEP Bulletin.

Appellants, a group of neighbors living near the building lot, applied for a hearing to challenge the waiver and sought a stay of construction. In a written decision issued March 16, 2011, the DEP Commissioner denied both applications.*fn2 Quoting N.J.S.A. 13:9B-2, the Commissioner's decision observed that in adopting the FWPA, the Legislature both recognized "'the importance of wetlands'" in protecting "'the public health, safety, and welfare,'" including water quality, and acknowledged that the rights of landowners "'must be fairly recognized and balanced with environmental interests.'" The Commissioner reasoned that "when the Legislature enacted the FWPA, it exempted from its jurisdiction those projects which had received municipal land use approval under the [Municipal Land Use Law]. N.J.S.A. 13:9B-4d."

Absent federal requirements not relevant here, the FWPA provides in pertinent part:

The following are exempt from the requirement of a freshwater wetlands permit and transition area requirements . . .

d. Projects for which (1) preliminary site plan or subdivision applications have received preliminary approvals from the local authorities pursuant to the "Municipal Land Use Law," P.L. 1975, c. 291 (C. 40:55D-1 et seq.) prior to the effective date of this act.

[N.J.S.A. 13:9B-4d(1).]

Tracing the origins of this provision, which was adopted in 1987, L. 1987, c. 156, § 4, the Commissioner explained that in order to assume responsibility for the federal freshwater wetland protection program, as permitted by the Clean Water Act (CWA), 33 U.S.C.A. §§ 1251 to 1387, the State needed to adopt a program "as stringent as the federal program" but could also adopt more stringent regulations. See 33 U.S.C.A. § 1344 (g), (h). The State chose to adopt more extensive wetland protections than the CWA required, by not only regulating development in wetlands themselves but also in buffer areas around wetlands, called "transition areas." See MCG Assocs. v. Dep't of Envtl. Prot., 278 N.J. Super. 108, 112-13 (App. Div. 1994). However, in reconciling environmental interests with the rights of landowners, the Legislature chose to grandfather projects for which municipal land use approvals had already been granted at the time the FWPA was adopted.*fn3

The Commissioner next construed the agency's regulations. In pertinent part, the regulations define the transition area exemption the way N.J.S.A. 13:9B-4 does, as applying to "[a] project for which a preliminary site plan or subdivision application received formal preliminary approvals from local authorities pursuant to the Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq., prior to July 1, 1989." N.J.A.C. 7:7A-2.8(f)1 (emphasis added). In his ...


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