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N.J. Highlands Coalition v. New Jersey Department of Environmental Protection

Supreme Court of New Jersey

December 13, 2018

N.J. Highlands Coalition and Sierra Club, N.J., Petitioners-Appellants,
v.
New Jersey Department of Environmental Protection and Bi-County Development Corp., Respondents-Respondents.

          Argued November 7, 2018

          On certification to the Superior Court, Appellate Division, whose decision is reported at N.J.Super. (App. Div. 2017).

          Edward Lloyd argued the cause for appellants (Columbia Environmental Law Clinic, Morningside Heights Legal Services, attorneys; Edward Lloyd and Susan J. Kraham, on the briefs).

          Lewin J. Weyl, Deputy Attorney General, argued the cause for respondent New Jersey Department of Environmental Protection (Gurbir S. Grewal, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel, and Kristina Miles, Deputy Attorney General, on the brief).

          Richard J. Hoff, Jr., argued the cause for respondent Bi-County Development Corp. (Bisgaier Hoff, attorneys; David R. Oberlander, on the brief).

          PER CURIAM

         The Appellate Division judgment under review affirmed several actions by the State Department of Environmental Protection (DEP) with regard to property in the Borough of Oakland that is subject to the Highlands Water Protection and Planning Act (Highlands Act), N.J.S.A. 13:20-1 to -35.__ N.J.Super.__ (App. Div. 2017). The Court granted the petition for certification filed by plaintiffs, the N.J. Highlands Coalition and the Sierra Club, N.J., to review only the determination that the property owner -- Bi-County Development Corporation (Bi-County) -- qualified for the exemption allowed under the Highlands Act for the construction of affordable housing projects, N.J.S.A. 13:20-28(a)(17) (Exemption 17).

         Exemption 17 states that a major Highlands development project located in one of the specified Planning Areas shall be exempt from the Highlands Act's requirements if, "on or before March 29, 2004," it "has been the subject of a settlement agreement and stipulation of dismissal filed in the Superior Court . . . to satisfy the constitutional requirement to provide for the fulfillment of the fair share obligation of the municipality in which the development is located." N.J.S.A. 13:20-28(a)(17). The statute provides that "[t]he exemption provided pursuant to this paragraph shall expire if construction beyond site preparation does not commence within three years after receiving all final approvals required pursuant to the 'Municipal Land Use Law[]' [(MLUL), N.J.S.A. 40:55D-1 to -163]." Ibid. The dispute in this case centers on the meaning of that provision.

         In January 1991, Bi-County reached a settlement agreement with the Borough of Oakland and the Oakland Planning Board to permit construction of an inclusionary housing development on Bi-County's property within the Borough. As a result of the settlement, the parties filed a stipulation of dismissal resolving litigation between them. In July 2007, the Oakland Planning Board granted preliminary and final major site plan approval and all variances and waivers for construction on Bi-County's property. The approval listed fifty-seven conditions, including receipt of all necessary approvals from the DEP.

         In January 2014, the DEP and Bi-County executed a settlement agreement that provided for issuance of certain general permits for which Bi-County had applied. As part of that settlement agreement, the DEP determined that Bi-County was entitled to the Highlands Act exemption under N.J.S.A. 13:20-28(a)(17) because the property was developed in accordance with the 1991 settlement, and the Planning Board's July 2007 approval was not a final approval within the meaning of N.J.S.A. 40:55D-4 until Bi-County satisfied the conditions of the approval, including issuance of the general permits.

         After the DEP issued the requested general permits in 2015, plaintiffs appealed, contending that the DEP erred as a matter of law in its determination that the 2007 approval was not a final approval within the meaning of N.J.S.A. 40:55D-4. Plaintiffs posited that the 2007 approval was a final approval because it constituted official action that conferred on Bi-County all rights attendant to a final approval, and those rights vested on the date of the final approval regardless of whether there were conditions of approval. Accordingly, plaintiffs argued that, because the 2007 approval was a final approval and Bi-County failed to begin construction, Bi-County was not entitled to the exemption.

         The Appellate Division affirmed the DEP's conclusion "that Bi-County was entitled to the exemption under N.J.S.A. 13:20-28(a)(17).__" N.J.Super. at__ (slip op. at 19). The panel noted that "[t]he Planning Board approved the proposed development, but conditioned its approval on Bi-County satisfying fifty-seven conditions, several of which remained unsatisfied when DEP issued the general permits and transition area waiver," including "the County Planning Board's approval of the site plan and issuance of all necessary DEP approvals, both of which the MLUL requires." Id. at__ (slip op. at 18). The panel also stressed that "the 2007 approval was for the development of 209 units," but that DEP requirements resulted in a reduction to 204 units, and emphasized that "[t]he 2007 approval required Bi-County to return for amended site plan approval if DEP imposed additional conditions or other restrictions on the proposed development, which the DEP did here." Ibid. Thus, the panel concluded, "the 2007 approval was not a 'final approval' because Bi-County had not received 'all final approvals required pursuant to the [MLUL],' and final site plan approval for 204 units." Id. at__ (slip op. at 18-19) (quoting Exemption 17).

         The Appellate Division also affirmed determinations that led to the DEP's decision to grant the general permits, but plaintiffs petitioned for certification only as to the applicability of Exemption 17. The Court granted that petition. 234 N.J. 208 (2017).

         HELD: The judgment of the Appellate Division is affirmed substantially for the reasons expressed in the per curiam opinion. The Court adds modifying comments to clarify that the affirmance is based solely on a plain language reading of the Highlands Act that does not incorporate the definition of "final approval" contained in the separate but related MLUL.

         1. The Court does not read the Appellate Division decision to have meant to engraft the meaning of "final approval" under the MLUL onto the Highlands Act's differing language that ...


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