IN RE FLOOD HAZARD AREA VERIFICATION, ETC. (NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5637-18
IN RE FLOOD HAZARD
AREA VERIFICATION
(RIPARIAN ZONE ONLY)
FILE NO. 2105-04-0002.1
FHA180001 and FLOOD
HAZARD AREA
APPLICABILITY
DETERMINATION FILE NO.
2105-04-0002.1 APD180001.
___________________________
Argued September 28, 2021 – Decided November 24, 2021
Before Judges Messano and Accurso.
On appeal from the New Jersey Department of
Environmental Protection, File Nos. 2105-04-0002.1
APD180001 and 2105-04-0002.1 FHA180001.
Daniel Greenhouse argued the cause for appellant
Skylands Preservation Alliance (Eastern
Environmental Law Center, attorneys; Daniel
Greenhouse, Senior Staff Attorney, on the briefs).
Neil Yoskin argued the cause for respondent Yaraghi
Realty, LLC (Cullen and Dykman, LLP, attorneys; Neil
Yoskin, of counsel and on the brief).
Cristin D. Mustillo, Deputy Attorney General, argued
the cause for respondent New Jersey Department of
Environmental Protection (Andrew J. Bruck, Acting
Attorney General, attorney; Sookie Bae-Park, Assistant
Attorney General, of counsel; Cristin D. Mustillo,
Deputy Attorney General, on the brief).
PER CURIAM
The Flood Hazard Area Control Act (the Act), N.J.S.A. 58:16A-50 to
-103, "confers broad authority" on the New Jersey Department of Environmental
Protection (DEP) "to protect the 'safety, health, and general welfare ' of the
public by 'delineat[ing] and mark[ing] flood hazard areas' and subjecting them
to 'land use regulations.'" Am. Cyanamid Co. v. State, Dep't of Env't. Prot., 231
N.J. Super. 292, 297 (App. Div. 1989) (alterations in original) (quoting N.J.S.A.
58:16A-50(b)). Among other things, the Act authorizes DEP to
adopt rules and regulations which delineate as flood
hazard areas such areas as . . . the improper
development and use of which would constitute a threat
to the safety, health, and general welfare from flooding.
These delineations shall identify the various
subportions of the flood hazard area for reasonable and
proper use according to relative risk, including the
delineation of floodways necessary to preserve the
flood carrying capacity of natural streams.
[N.J.S.A. 58:16A-52(a).]
Regulations promulgated under the Act provide that subject to certain
exceptions not relevant here, "[a]ll waters in New Jersey are regulated . . . [and
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e]very regulated water possesses a flood hazard area and/or a riparian zone
. . . ." N.J.A.C. 7:13-2.2(a). These regulated areas "generally overlap."
N.J.A.C. 7:13-2.3(d). Again, with certain exceptions not relevant here, anyone
engaging in broadly defined "[r]egulated [a]ctivities," see N.J.A.C. 7:13-2.4, "in
a regulated area shall do so only in accordance with" permits or authorizations
issued by DEP. N.J.A.C. 7:13-2.1(b).
In September 2018, the owners of 112 acres of land in Franklin Township,
Warren County, intended to construct a 1.2 million square foot commercial
warehouse facility with tractor-trailer parking on a portion of the property. 1
They applied to DEP for a Flood Hazard Area Applicability Determination
(AD), verifying there was no flood hazard area on the property, and a Riparian
Zone Only Verification (RZOV) regarding an unnamed tributary stream of the
Musconetcong River. See N.J.A.C. 7:13-2.3(b) (defining "flood hazard area");
N.J.A.C. 7:13-2.3(c) (defining "riparian zone"). On March 14, 2019, DEP
issued an AD, concluding a "Flood Hazard Area Verification [(FHAV)] to
establish the stream's flood hazard area elevation must be submitted." On the
same day, DEP issued an RZOV "establishing the limits of the riparian zone
1
Respondent Yaraghi Realty, LLC (Yaraghi) has since purchased the property.
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along the unnamed tributary to the Musconetcong River . . . ." The RZOV also
stated:
Although the regulated water possesses a flood hazard
area that extends onto the subject site, the applicant has
elected to only verify the limits of the riparian zone
associated with this feature. Therefore, a flood hazard
area exists on the site; however, its limits have not been
verified.
Less than two weeks later, however, on March 25, 2019, DEP issued a
second AD (the March 25 AD) indicating a Flood Hazard Area Permit was not
required for the development. Citing the original September 2018 submission
by the developers' consultant, and "two . . . drawings" submitted in August and
December 2018, DEP stated: "Based on the vertical elevation change between
the stream and proposed grading[,] the proposed activity is not located within
the flood hazard area. No activity is proposed within the stream's riparian zone."
On April 3, 2019, DEP published notice of the issuance of the RZOV in the DEP
Bulletin. See N.J.A.C. 7:13-21.3(d) (requiring DEP to "provide notice of the
decision on an application for a verification . . . in the . . . Bulletin").
On April 26, 2019, appellant Skylands Preservation Alliance (SPA)
requested an adjudicatory hearing on the issuance of the RZOV. See N.J.A.C.
7:13-23.1 (setting procedures to request an adjudicatory hearing under the Act).
While that request was pending, SPA learned for the first time of the March 25
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AD and moved for leave to file an appeal with this court as within time. We
denied that request and dismissed the appeal, noting it was "premature." Our
July 8, 2019 order specifically said that SPA "may file a notice of appeal from
the . . . March 25, 2019[,] decision after the []DEP has issued a decision on
[SPA's] request for a hearing, or at the conclusion of the administrative
proceedings."
The DEP Commissioner issued an order denying SPA's request for an
adjudicatory hearing on July 25, 2019. She concluded that SPA lacked standing
to challenge the RZOV. SPA filed its appeal.
SPA argues that DEP's action in issuing the March 25 AD was arbitrary,
capricious, and unreasonable. It contends, therefore, that the March 14 AD
governs and requires a complete FHAV for the property. SPA urges us to
reverse both the March 14 RZOV and the March 25 AD. Alternatively, SPA
argues it was entitled to an adjudicatory hearing under the Administrative
Procedure Act (the APA), N.J.S.A. 52:14B-1 to -31. Lastly, SPA contends that
because DEP issued the March 25 AD beyond the time mandated by the
Constructions Permit Law, N.J.S.A. 13:1D-31, the March 14 AD controls.2
2
N.J.S.A. 13:1D-31 obligates DEP to "approve, condition or disapprove an
application for a construction permit within [ninety] days following the date that
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DEP contends that SPA was not entitled to an adjudicatory hearing
because it lacked standing. See, e.g., In re NJPDES Permit No. NJ0025241, 185
N.J. 474, 481–82 (2006) (holding that non-applicants are only entitled to an
adjudicatory hearing under the APA pursuant to an applicable statute or if they
possess a "particularized property interest of constitutional significance that
[wa]s directly affected by [the] agency's . . . decision"). DEP also argues that
only the Commissioner's July 25, 2019 denial of SPA's request for an
adjudicatory hearing is properly before us, because that is the only order
included in SPA's notice of appeal. See, e.g., Campagna v. Am. Cyanamid Co.,
337 N.J. Super. 530, 550 (App. Div. 2001) (refusing to consider a challenge to
an order not listed in the notice of appeal). In a footnote in its brief, DEP asserts
that if we intend to address the merits of SPA's arguments, we should remand
the matter to the agency so it may explain its reasons for issuing the March 25
AD.
Yaraghi also argues that SPA was not entitled to an adjudicatory hearing
because it lacked standing under the APA. It contends that DEP's issuance of
the application is complete." For reasons that follow, we do not address the
merits of this argument.
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the RZOV and March 25 AD was appropriate under the controlling regulations
and supported by sufficient credible evidence before the agency.
I.
We first dispense with DEP's argument regarding the scope of the appeal.
The history of motion practice in our court plainly demonstrates that our July 8,
2019 order fully intended to preserve SPA's right to challenge the March 25 AD
after DEP decided SPA's request for an adjudicatory hearing. Indeed, our March
2, 2020 order, granting SPA's motion to settle the record, required the agency to
include in the items comprising the record on appeal its "March 25, 2019 [AD];
the March 14, 2019 [AD]; and the agency's records regarding these decisions." 3
"When a party appeals from a final judgment, the party may seek review
of interlocutory orders that have not been rendered moot or definitively ruled
upon by an appellate court in a prior or separate appeal." Silviera-Francisco v.
Bd. of Educ. of Elizabeth, 224 N.J. 126, 140–41 (2016) (citing Elmora Hebrew
Ctr., Inc. v. Fishman, 239 N.J. Super. 229, 232 (App. Div. 1990), aff'd, 125 N.J.
404 (1991)). The orders we entered on SPA's motions indicated that DEP's
3
As already noted, because it was unaware at the time that DEP had issued the
March 25 AD, SPA's request for an adjudicatory hearing only sought to
challenge the RZOV. Our order, therefore, intended to corral all the agency's
decisions and include them in the appellate record.
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March 14 and March 25, 2019 determinations were essentially interlocutory,
because administrative proceedings were not exhausted, and those agency
decisions would be within the scope of any appeal SPA might file in the future.
"An interlocutory order is preserved for appeal with the final judgment or
final agency decision if it is identified as a subject of the appeal. That may be
done in the notice of appeal or the case information statement." Id. at 141
(citations omitted). Here, SPA's case information statement set forth in exacting
detail all of DEP's decisions for which it sought review.
II.
We affirm the decision denying SPA an adjudicatory hearing. Pursuant
to the APA, no State agency may promulgate a regulation "that specifically
allows a third party to appeal a permit decision," unless "otherwise required by
federal law or by . . . statute." N.J.S.A. 52:14B-3.3(a); see also N.J.A.C. 7:13-
23.1(e) (denying adjudicatory hearings "in contravention of the [APA]"). A
third party is defined as any person other than:
a. An applicant . . . .
b. A State agency; or
c. A person who has a particularized property interest
sufficient to require a hearing on constitutional or
statutory grounds.
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[N.J.S.A. 52:14B-3.2.]
The Legislature determined that giving third parties the right to hearings would
"give rise to a chaotic unpredictability and instability that would be most
disconcerting to New Jersey's business climate and would cripple economic
development." N.J.S.A. 52:14B-3.1(c); see also In re Riverview Dev., LLC, 411
N.J. Super. 409, 424 (App. Div. 2010) (the limitations were "intended to prevent
the processing of permit applications by State agencies from being bogged down
by time-consuming and costly formal hearings" that "consume substantial public
and private resources"). As a result, "third parties generally are not able to meet
the stringent requirements for constitutional standing in respect of an
adjudicatory hearing." In re NJPDES Permit No. NJ0025241, 185 N.J. at 482.
SPA argues it was entitled to an adjudicatory hearing because DEP's
March 25 AD was issued without the benefit of any agency record explaining
the decision that reversed the earlier-issued AD. While we agree with the
assertion that there is no agency record explaining the decision, it does not mean
SPA has standing under the APA. Moreover, as we explain, there is another
remedy which provides SPA with the ability to challenge DEP's decisions. See
In re Freshwater Wetlands Statewide Gen. Permits, 185 N.J. 452, 471 (2006)
(noting an agency's "administrative procedures, which were subject to judicial
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review, satisfied the constitutional demands of due process"). We affirm DEP's
denial of an adjudicatory hearing in this case.
III.
We set forth some of the details available in the record as it currently
exists. When the developers' application was submitted in September 2018,
their environmental consultant, Envirotactics, Inc., acknowledged that available
mapping and aerial photographs demonstrated an onsite stream that was an
unnamed tributary of the Musconetcong River and "carrie[d] a riparian zone
designation of [three-hundred] feet." Envirotactics, however, contended that its
onsite inspections "confirm[ed] there [was] no discernible feature in that
location," and it asserted that "[d]rainage occur[red] from the adjacent farm
fields and a season[al] ditch is formed, however, no defined bed or banks are
located onsite." Envirotactics did acknowledge "an offsite stream" on
neighboring property "carrie[d] a . . . riparian zone[] that extend[ed] onto the
property."
On October 2, 2018, DEP notified the developers that the application was
"administratively complete but not technically complete." Specifically, DEP
determined that based on "aerial photographs and topography," the unnamed
tributary "on-site appears to be a regulated water due to its drainage area in
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excess of [fifty] acres." See N.J.A.C. 7:13-2.2(a)(3) (excepting from the
definition of regulated waters those with "no discernible channel" but only if
they have a drainage area of less than fifty acres).
For reasons unexplained in the record, one day later, on October 3, 2018,
DEP conducted a site visit. On October 5, DEP notified Envirotactics that it
was correct; the onsite feature "does not . . . have a defined bed and bank . . . .
Therefore, there is no flood hazard area or riparian zone associated with this
feature." Over the ensuing months, DEP and Envirotactics exchanged emails
and correspondence about the purported onsite water feature.
On January 2, 2019, DEP deemed the application complete; the agency's
email to Envirotactics stated the application was received December 18, 2018,
not October 2, making March 17, 2019, the final day of the agency review
period. See N.J.A.C. 7:13-21.3 (requiring DEP to render a decision on the
application within ninety calendar days after it "is declared complete for
review").
The owner of neighboring property, a professional engineer, sent
extensive comments and supporting data to DEP, asserting the department was
mistaken about the nonexistence of an onsite regulated water feature. DEP
personnel again visited the property in February 2019, and took photographs.
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However, they are not part of the record. When SPA moved to settle the record
on appeal for the third time, DEP certified that the photographs were destroyed.
SPA sent a letter to DEP on February 25, 2019. It reiterated its objection
to "the submitted verification" application and further noted the lack of public
notice. SPA claimed it only became aware of the "verification submission"
through the DEP Bulletin issued on January 16, 2019.4 SPA contended that the
developers failed to properly provide notice to public officials and neighboring
property owners as required by N.J.A.C. 7:13-19.1.
On March 1, 2019, DEP advised Envirotactics that it expected to issue its
verification letter prior to March 15. On March 11, DEP produced its internal
report. It indicated no streams were present "on site." On March 13, DEP
produced an internal report recommending issuance of an RZOV. On March 14,
DEP issued the RZOV and the initial AD, which, as noted, concluded a "Flood
Hazard Area Verification" was required "to establish the stream's flood hazard
area elevation."
SPA raises several arguments grounded in the Act's implementing
regulations. For example, it notes that DEP never required the developers to file
a formal application for a FHAV, noting the original application filed in
4
A copy of which is not in the record.
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September 2018 posited that verification unnecessary, despite the presence of
an onsite stream in aerial photographs and maps. Envirotactics contended no
verification was necessary because there was no defined bed or bank, hence no
regulated feature existed. However, SPA properly notes that N.J.A.C. 7:13-
2.2(a)(3) excepts from the definition of regulated waters those with "no
discernible channel," but only if they have a drainage area of "less than [fifty]
acres." DEP had previously determined in October 2018, that the drainage area
for the feature as it appeared in photos and on maps was greater than fifty acres.
Furthermore, SPA notes that the RZOV verified only the riparian zone of
the offsite stream. The RZOV specifically stated that a concomitant flood
hazard area existed "on the site," but its limits were never verified. SPA
questions how DEP concluded that no regulated area would be impacted by the
construction of the proposed project without requiring some verification of this
flood hazard area on a portion of the property.
SPA also contends that DEP's own regulations state that it "will not
undertake a site inspection . . . in the context of an applicability determination."
N.J.A.C. 7:13-2.5(b). And, if the applicability determination cannot be made on
the developer's submission, DEP must "advise[ the applicant] to submit an
application for a verification." N.J.A.C. 7:13-2.5(f)(2)(iii). SPA notes that
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when DEP concluded the developers' September 2018 request for an
applicability determination revealed the presence of regulated water on site, the
regulations did not permit DEP to conduct a site visit, but rather required the
developers to submit a formal application for an FHAV.
Lastly, we note that while a request for an applicability determination does
not require public notice, applications for FHAVs do require public notice in
some circumstances. See N.J.A.C. 7:13-19.1. SPA raised the issue of a lack of
public notice with DEP, but there is no indication in the record that DEP
responded.
DEP never addressed these issues, all raised in SPA's brief. Simply put,
it is deeply disturbing that DEP filed a brief failing to address anything other
than the propriety of denying SPA's request for an adjudicatory hearing, and
chose instead to suggest, in a footnote, that a remand to address the merits of
SPA's contentions was appropriate.
Yaraghi did not take such a crabbed view of the scope of this appeal since
its brief addresses the merits of SPA's arguments. Yaraghi argues that DEP's
decision is entitled to deference and presumptively valid. It cites DEP's 2018
Technical Manual as authority for the proposition that a "seasonal ditch" in a
"farm field[]" is not regulated water under the Act. According to Yaraghi, "at
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worst, DEP staff made the correct decision, but may have simply misstated their
reason for having done so." Perhaps, but we cannot conclude such on this
record.
We disagree with SPA that based on the current record, we should
essentially accept that the March 14, 2019 AD controls, require Yaraghi to apply
for an FHAV for the alleged onsite regulated water feature and prohibit any
development until DEP verifies any flood hazard areas on the site. That course
requires us to stray from our responsibilities and simply ignore what is already
in the record, i.e., the March 25 AD. It is axiomatic that our review of agency
determinations is limited, and "[i]t is settled that '[a]n administrative agency's
interpretation of statutes and regulations within its implementing and enforcing
responsibility is ordinarily entitled to our deference.'" Seigel v. N.J. Dep't of
Env't Prot., 395 N.J. Super. 604, 613 (App. Div. 2007) (alterations in original)
(quoting Wnuck v. N.J Div. of Motor Vehicles, 337 N.J. Super. 52, 56 (App.
Div. 2001)). This is particularly true given the special expertise required in
applying the intricate regulations under the Act. Whether the issuance of the
March 25 AD was proper cannot be determined on this record, because DEP has
never explained its decision, which SPA contends was a reversal of course from
the March 14 AD.
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"It should go without saying that turning . . . square corners is minimally
what citizens should be able to expect from their government . . . ." Klumpp v.
Borough of Avalon, 202 N.J. 390, 413 (2010). "[W]henever an administrative
agency acts, be that act mandatory or strictly voluntary, it must do so reasonably
and in a manner calculated to achieve the policies expressed in the agency's
organic statute." In re State & Sch. Emps.' Health Benefits Comm'ns'
Implementation of Yucht, 233 N.J. 267, 281 (2018) (citing 37 Steven L. Lefelt
et al., N.J. Practice: Administrative Law & Practice § 7.17 (2d ed. 2000)). When
the record is inadequate, the appropriate course for us to follow is to require a
remand hearing to develop "a proper record to permit meaningful judicial
review." Id. at 285.
Given the agency's failure to explain the reasons for its decision or to
address the merits of SPA's arguments on appeal, we reluctantly remand the
matter to DEP for further proceedings. DEP shall produce its entire file for
SPA's inspection and copying, and it shall permit SPA and Yaraghi a thirty-day
period to provide comments to the agency. DEP shall then issue a final decision,
indicating: 1) whether Yaraghi must submit an FHAV application for any onsite
regulated water feature that may exist or why such application is not required
by DEP's regulations and the Act; and 2) why an FHAV is unnecessary for the
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offsite stream's flood hazard area under the particular circumstances presented
by the proposed project. That decision shall be the final agency decision and
appealable to this court.
Affirmed in part and remanded for further proceedings consistent with this
opinion. The remand shall be completed within ninety days, and DEP shall file
its decision with this court. We retain jurisdiction.
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