Argued October 28, 2014.
Approved for Publication November 26, 2014.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-4634-12.
Donald S. MacLachlan argued the cause for appellants (MacLachlan Law Offices, LLC, attorneys; Mr. MacLachlan, on the briefs).
Thomas J. Herten argued the cause for respondent (Archer & Greiner, P.C., attorneys; Mr. Herten, of counsel; Andrew T. Fede, on the brief).
Lisa M. Almeida, Deputy Attorney General, argued the cause for amicus curiae State of New Jersey Department of Environmental Protection ( John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Almeida, on the brief).
Before YANNOTTI, HOFFMAN
and WHIPPLE Judges.
[438 N.J.Super. 311] YANNOTTI, P.J.A.D.
Intervenors Hillsdale and Westwood Flood Solution Group (the " HWFSG" ), Antonio Xavier and Wendy Xavier (the " Xaviers" ) appeal from an order of the Law Division dated August 1, 2013, finding that the Borough of Hillsdale (" Hillsdale" or the " Borough" ) was preempted by state law from applying its land use approval requirements and other ordinances to a dam improvement project to be undertaken by plaintiff United Water New Jersey, Inc. (" UWNJ" or the " Company" ). We affirm but remand for entry of a modified judgment.
The relevant facts are essentially undisputed. UWNJ provides water to customers in sixty municipalities in Bergen and Hudson Counties. To do so, UWNJ utilizes, among other facilities, the Woodcliff Lake Reservoir, which is located in Hillsdale and the Borough of Woodcliff Lake (" Woodcliff Lake" ). One of the reservoir's structures is a dam across the Pascack Brook, which UWNJ's predecessor, Hackensack Water Company, constructed in 1904. The dam is traversed by Church Road, a private road owned by UWNJ that is subject to use easements held by Hillsdale and Woodcliff Lake.
The New Jersey Department of Environmental Protection (the " NJDEP" ) has classified the dam as a " Class I, High Hazard" structure pursuant to N.J.A.C. 7:20-1.8(a)(1), because there are " normally occupied homes in the area that are susceptible to significant damage in the event of a dam failure." N.J.A.C. 7:20-1.8(a)(1)(i). Between 2005 and 2006, the NJDEP asked UWNJ to [438 N.J.Super. 312] undertake a study of the dam " to determine the maximum probable precipitation and water runoff volume projected to flow into the [Woodcliff Lake Reservoir] during future severe weather events."
UWNJ retained engineering consultants to perform the study and in 2007, they reported that, in the event of severe precipitation, " excess storm related water could rise and overtop the [d]am." The consultants recommended " doubling the amount of impounded water passed downstream from the [dam] into the Pascack Brook."
On December 20, 2007, the NJDEP notified UWNJ that the dam was not in compliance with spillway capacity regulations adopted pursuant to the Safe Dam Act (the " SDA" ), N.J.S.A. 58:4-1 to -14. The NJDEP directed UWNJ to make modifications to the dam to address this condition. UWNJ developed a plan to modify the dam, and provided the plan to Hillsdale for informational purposes. Thereafter, UWNJ submitted its plan to the NJDEP, accompanied by construction drawings, details, and specifications prepared by its professional engineers.
On November 7, 2011, the NJDEP granted UWNJ a permit, requiring the Company to " construct an auxiliary spillway, rehabilitate the low level outlet and rehabilitate the dikes for" the dam. The NJDEP's permit approved the drawings prepared by UWNJ's engineers, as well as certain technical specifications. The permit specified the terms and conditions for the project.
Those terms and conditions indicated that the work was at all times subject to supervision and inspection by the NJDEP's Bureau of Dam Safety and Flood Control (the " Bureau" ); no changes to the approved plans may be made without the Bureau's written consent; all construction activities must be undertaken in accordance with dam safety standards in N.J.A.C. 7:20-1.10; construction work on lands encompassed by the permit shall be
stabilized in accordance with standards for soil erosion and sediment control; trees or brush shall not be allowed to grow on the dam structure; and after construction, inspection reports shall be [438 N.J.Super. 313] submitted to the Bureau in accordance with the standards in N.J.A.C. 7:20-1.11.
In addition, the permit required UWNJ to obtain a current and valid water lowering permit from the Bureau of Freshwater Fisheries for the manipulation of water levels of any lake or impoundment. The permit also stated in bold typeface that it did not give any property rights to its holder, and that it would not be valid " until such time as all other required approvals and permits have been obtained."
Along with the permit, John H. Moyle, P.E. (" Moyle" ), the manager of the NJDEP's Bureau of Dam Safety and Flood Control, issued a letter. In that letter, Moyle stated that because the dam was not in compliance with applicable safety standards, and posed a potential hazard, construction of the dam improvements must begin within six months.
On January 10, 2012, Hillsdale advised UWNJ that the dam modification project required site plan approval from the Borough's planning board. UWNJ's attorney responded with a letter dated March 13, 2012, asserting that site plan and conditional use approval were not required for the project. The planning board's attorney replied in a letter dated April 2, 2012, asserting that the board had jurisdiction to review the project.
On May 1, 2012, Hillsdale adopted Ordinances No. 12-09 and 12-10. Ordinance No. 12-09 amended the tree removal provisions of the borough's land use ordinances. Ordinance No. 12-10 revised the conditional use standards for public utilities. The ordinance required public utilities to submit formal applications for site plan approval of such uses.
That same day, UWNJ filed a petition with the Board of Public Utilities (the " BPU" ) pursuant to the Municipal Land Use Law (" MLUL" ), specifically N.J.S.A. 40:55D-19, which provides, among other things, that a municipal ordinance or regulation adopted pursuant to the MLUL shall not apply to a public utility's development in more than one municipality, if the BPU determines that [438 N.J.Super. 314] the installation " is reasonably necessary for the service, convenience or welfare of the public."
On February 20, 2013, the BPU issued an opinion and order on UWNJ's petition. The BPU noted that there was no dispute requiring it to decide whether the project is reasonably necessary for the service or convenience of the public. The BPU noted that the NJDEP had maintained that its authority under the SDA and the Water Supply Management Act (WSMA), N.J.S.A. 58:1A-1 to -26, completely preempted local regulation of the dam and reservoir.
The BPU accepted, without ruling on, the NJDEP's assertion that the SDA and WSMA preempted local ordinances. The BPU noted that the NJDEP had asserted jurisdiction over dam safety and reliability under the SDA and it declined to consider issues over which the NJDEP had claimed preemption. The BPU elected not to exercise its jurisdiction pursuant to N.J.S.A. 40:55D-19, and dismissed the petition, stating that any party ...