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John and Katherine Kliever v. New Jersey Department of Environmental Protection

August 10, 2012

JOHN AND KATHERINE KLIEVER, PETITIONERS-RESPONDENTS,
v.
NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, LAND USE MANAGEMENT, RESPONDENT-RESPONDENT. THE RIDGE AT SADDLE RIVER, INTERVENOR-APPELLANT.



On appeal from the New Jersey Department of Environmental Protection.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 31, 2012 -

Before Judges Messano, Espinosa and Kennedy.

The Ridge at Saddle River, LLC (The Ridge), owner of real property located in Saddle River and Woodcliff Lake, appeals from the final agency decision of the Commissioner (the Commissioner) of the New Jersey Department of Environmental Protection (DEP).

The genesis of the dispute began on September 16, 2003, when DEP issued The Ridge a stream encroachment permit to build a storm water detention basin on its property, along with a storm water outfall structure within a drainage easement on property owned by respondents, John and Katherine Kliever (the Klievers). The Klievers appealed, and, on September 8, 2006, DEP granted their appeal request.

On January 22, 2008, the case was transmitted to the Office of Administrative Law (OAL) as a contested case pursuant to the Administrative Procedure Act, N.J.S.A. 52:14B-1 to -15.*fn1 The hearing took place before the ALJ over five days in early 2009. The ALJ found the following facts were undisputed.

The southwest corner of The Ridge property shares a common property line with the Kliever property, which historically suffered from drainage problems. In 2002, The Ridge received preliminary approval from the Saddle River Planning Board to construct a sixty-eight unit townhouse development on its property.

The Ridge property contained two storm water drainage areas denoted as Area A and Area B. Thirteen acres of the property, designated as Area A, drained into "Tice's Ditch," a drainage ditch running along the west side of The Ridge property. Area B drained the remaining portion of The Ridge property on the eastern side. The flows from these two areas passed through multiple plots of land before converging into a brook below the Kliever property.

As originally conceived, the development plan did not contemplate the use of the drainage easement on the Kliever property. However, the Planning Board requested this modification as an accommodation to the Klievers' concerns. The stream encroachment permit issued by DEP in 2003 permitted The Ridge to build a storm water detention basin on its property and an outfall structure within the drainage easement on the Kliever property.

In summer 2008, before the stream encroachment permit expired, The Ridge began construction of the detention basin and outfall structure. On October 3, 2008, DEP issued a compliance letter stating The Ridge had constructed the detention basin and outfall structure as permitted.

The central dispute before the ALJ was framed by the competing expert testimony regarding the proper location for measuring the development's storm water discharge. Before it was repealed,*fn2 N.J.A.C. 7:13-2.8(a)(1) provided:

If no regional [storm water] management plan has been developed, any [storm water] discharge within the jurisdiction of this chapter shall be controlled so that either

(i) The volume of [storm water] discharged from the site and the rate of runoff from the two, [ten], and [one-hundred-year] storm events for the post-construction site conditions does not exceed the pre-construction volume and rate of runoff; or

(ii) The post-construction peak runoff rate for the two[-]year storm event is [fifty] percent of the pre-construction peak runoff rate and the post-development peak runoff rate for the [ten] and [one-hundred-year] events are ...


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