N.J. Highlands Coalition and Sierra Club, N.J., Petitioners-Appellants,
New Jersey Department of Environmental Protection and Bi-County Development Corp., Respondents-Respondents.
November 7, 2018
certification to the Superior Court, Appellate Division,
whose decision is reported at N.J.Super. (App. Div. 2017).
Lloyd argued the cause for appellants (Columbia Environmental
Law Clinic, Morningside Heights Legal Services, attorneys;
Edward Lloyd and Susan J. Kraham, on the briefs).
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).
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).
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.
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
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.
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
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
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).
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
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 ...