Opinion
DOCKET NO. A-2157-14T2
04-26-2016
CRANFORD DEVELOPMENT ASSOCIATES, LLC, C/O THE S. HEKEMIAN GROUP FLOOD HAZARD AREA CONTROL ACT INDIVIDUAL PERMIT NO. 2003-08-0006.1 FHA 110001; FLOOD HAZARD AREA PERMIT VERIFICATION NO. 2003-08-0006.1 FHA 110002; and FRESHWATER WETLANDS TRANSITION AREA AVERAGING PLAN NO. 2003-08-0006.1 FWW 110001, CHALLENGED BY TOWNSHIP OF CRANFORD.
Robert L. Podvey argued the cause for appellant Township of Cranford (Podvey, Meanor, Catenacci, Hildner, Cocoziello & Chattman, P.C., attorneys; Mr. Podvey, Marianne C. Tolomeo, Lisa J. Trembly, and Sarah Mitchell, on the briefs). Mark S. Heinzelmann, Deputy Attorney General, argued the cause for respondent New Jersey Department of Environmental Protection (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Heinzelmann, on the brief). Dennis M. Toft argued the cause for respondent Cranford Development Associates, LLC (Chiesa Shahinian & Giantomasi, P.C., attorneys; Mr. Toft and Michael K. Plumb, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner, Leone, and Whipple. On appeal from the New Jersey Department of Environmental Protection. Robert L. Podvey argued the cause for appellant Township of Cranford (Podvey, Meanor, Catenacci, Hildner, Cocoziello & Chattman, P.C., attorneys; Mr. Podvey, Marianne C. Tolomeo, Lisa J. Trembly, and Sarah Mitchell, on the briefs). Mark S. Heinzelmann, Deputy Attorney General, argued the cause for respondent New Jersey Department of Environmental Protection (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Heinzelmann, on the brief). Dennis M. Toft argued the cause for respondent Cranford Development Associates, LLC (Chiesa Shahinian & Giantomasi, P.C., attorneys; Mr. Toft and Michael K. Plumb, on the brief). PER CURIAM
Cranford Township (Cranford or the Township) appeals from a November 20, 2014 order issued by the Commissioner of the Department of Environmental Protection (the DEP or the agency), denying its request for an adjudicatory hearing on two flood hazard permits and a freshwater wetlands permit issued to Cranford Development Associates, LLC (CDA), and reaffirming the issuance of the permits. On this appeal, the Township argues that it was entitled to an evidentiary hearing on the permit applications, and that the agency erred on the merits in granting the permits. We find no merit in either contention, and we affirm substantially for the reasons stated by the agency in its comprehensive written decision. We add these comments.
The permits were issued pursuant to the Flood Hazard Area Control Act, N.J.S.A. 58:16A-50 to -103, and the Freshwater Wetlands Protection Act, N.J.S.A. 13:9B-1 to -30.
I
As our Supreme Court held in In re Freshwater Wetlands Statewide Gen. Permits, 185 N.J. 452 (2006), the Township's claim to an adjudicatory hearing on the DEP permit applications cannot be considered in isolation. Rather, it must be viewed in the context of the multiple proceedings which have taken place in the course of CDA's efforts to develop its property. Id. at 472. Thus, we begin by summarizing the history.
This appeal is the latest installment in a protracted dispute over the construction of affordable housing in Cranford Township. The litigation began in 2008, when CDA filed an affordable housing lawsuit, under the auspices of Mount Laurel. In a companion appeal, also decided today, we affirmed trial court orders confirming the Township's obligation, under the Mount Laurel doctrine, to permit CDA to construct a 360-unit development with an affordable housing component on property located on Birchwood Avenue in Cranford. The trial court's decision, which followed a fourteen-day bench trial in 2010, granted CDA a builder's remedy under Mount Laurel. Thereafter, in 2012, a court-appointed special hearing examiner held a five-day testimonial hearing to review CDA's site plan application and related issues. Those hearings resulted in the court granting site plan approval based on the hearing examiner's positive recommendation.
S. Burlington Cty. NAACP v. Mount Laurel Twp., 92 N.J. 158, 198-99 (1983) (Mount Laurel II); S. Burlington Cty. NAACP v. Mount Laurel Twp., 67 N.J. 151, cert. denied, 423 U.S. 808, 96 S. Ct. 18, 46 L. Ed. 2d 28 (1975) (Mount Laurel I).
Cranford Dev. Assocs., LLC v. Twp. of Cranford, ___ N.J. Super. ___ (App. Div. 2016). Our opinions in these two appeals are intended to be read together.
Much of the evidence in the bench trial and the hearings before the examiner consisted of expert testimony about possible flooding on the proposed development site. The Township had a full opportunity to present expert witnesses and cross-examine CDA's experts on those subjects. Significantly, the trial court and a court-appointed special master both concluded that CDA had credibly and satisfactorily addressed the flooding issue. As a result, the trial judge found no environmental impediment to granting the builder's remedy. The court later granted site plan approval. However, the judge acknowledged that the DEP would make the final decision on the environmental permit issues and thus the court's development approvals were conditioned on CDA obtaining the necessary DEP permits.
As discussed later in this opinion, the court's site plan decision approved CDA's plan to elevate a portion of Birchwood Avenue, to address concerns that the DEP had raised about access to the property.
The DEP permitting process began in 2011, shortly after the trial court rendered its decision granting CDA a builder's remedy. After a review process lasting more than two years, during which both the Township and CDA submitted environmental expert reports and participated in a public hearing, the DEP granted the permits. In its brief, the Township presents the application history as though very little happened during the review process, and the Township contends that the DEP acted too swiftly in approving the permits after the public hearing. The record belies that argument.
Contrary to the Township's contention, it had multiple and extensive opportunities to present evidence to the DEP during the entire process. CDA filed its permit applications on December 19, 2011. The Township sent the DEP several submissions objecting to various aspects of the applications. In fact, the November 10, 2012 report of the court-appointed hearing examiner, which is in the Township's appendix, noted that "Cranford has already participated in the NJDEP review process and has submitted its objections." In addition to receiving the Township's objections, the DEP sent CDA numerous requests for additional information, and CDA made a number of revisions to its applications.
To satisfy the DEP's concern that there be an available access road into the property in the event a flood should occur, CDA sought permission from the Township to raise the level of a portion of Birchwood Avenue adjacent to the development. However, the Township refused to give the necessary local land use approvals, and as a result, the issue was addressed at length as part of the five-day hearing before the hearing examiner in the Mount Laurel proceedings. After considering expert testimony from both sides, the hearing examiner found "no credible evidence" that elevating Birchwood Avenue would cause flooding. The examiner determined that as a matter of land use planning, CDA should be allowed to elevate Birchwood Avenue, and the judge agreed.
As a result of the extensive, interactive permit application process, DEP did not deem CDA's applications complete until October 2013. The DEP then granted the Township's request for a public hearing, which was held on January 16, 2014. Many local residents spoke at the hearing. In addition, the Township's representatives and experts presented testimony. The Township then sent DEP additional written submissions, to which CDA responded. DEP approved the permits on February 7, 2014. The Township requested an adjudicatory hearing (Office of Administrative Law or "OAL" hearing) on March 18, 2014, which the agency denied on November 20, 2014, after several additional months of consideration.
Both CDA and the Township presented some of the same experts who had already testified and been cross-examined in the court hearings. Nothing precluded the Township from submitting the court transcripts to the DEP as part of its presentation. However, as the DEP Commissioner noted in his decision, the Township did not submit those materials.
Relying on Freshwater Wetlands, the DEP found that although the Township owned some property located near the proposed CDA development, it did not have a particularized property interest sufficient to justify an OAL hearing. Instead, the DEP found the Township's concerns over possible flooding of its property to be "speculative," and not supported by the evidence. See Freshwater Wetlands, supra, 185 N.J. at 473. The DEP then addressed each of the Township's substantive objections to the issuance of the permits.
In particular, the DEP found that the project would increase rather than decrease the amount of flood storage volume on the property. The decision noted that CDA would actually "remove fill from the floodway, thus improving conditions." Based on the analysis set forth in its February 7, 2014 staff engineering report, the DEP found that the CDA project would not raise the potential level of flood elevation on neighboring properties. The DEP also rejected the Township's argument that the overland flow of water across Birchwood Avenue, during heavy rains, should be considered a "channel" for purposes of reviewing the impact of the construction. The DEP concluded that the overland flow path of rain or other waters during a flood was a transient or ephemeral event and could not constitute a "channel" within the definition set forth in N.J.A.C. 7:13-1.2:
The February 7, 2014 staff engineering report, which was provided to the Township, found that a stormwater outfall that CDA proposed to build would be constructed outside the existing flood channel and therefore would not need to meet the strict standards set forth in N.J.A.C. 7:13-10.1 for work in a flood channel. The Township did not object to that conclusion or otherwise raise the issue before the DEP Commissioner, whose November 20, 2014 decision noted that CDA did not propose any construction in the flood channel. We decline to consider the Township's argument, which it raises for the first time on this appeal, that building the stormwater outfall would involve construction in a flood channel. See Bergen Pines Hosp. v. Dep't of Human Servs., 96 N.J. 456, 474-75 (1984); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234-35 (1973). Nor will we consider arguments that the Township has raised in footnotes to its brief. See Almog v. ITAS, 298 N.J. Super. 145, 155 (App. Div. 1997), appeal dismissed, 152 N.J. 361 (1998). --------
"Channel" means a linear topographic depression that continuously or intermittently confines and/or conducts surface water, not including transient erosional gullies and other ephemeral features that temporarily form after heavy rainfall. A channel can be naturally occurring or can be of human origin through excavation or construction. A channel includes both bed and banks.
[Ibid.]
Finally, the DEP rejected as speculative and irrelevant the Township's suggestion that power and gas lines would need to be constructed in the "floodplain." The agency noted that the placement of utilities had already been reviewed and approved in the site plan process in the trial court, and that "the vast majority of utility-related structures used will be located underground, and therefore will not affect flooding."
II
On this appeal, our interpretation of legal issues is de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). However, particularly where the DEP's decision is intertwined with its interpretation of evidence, our review is somewhat more deferential. The DEP's action carries a "strong presumption of reasonableness." See Aqua Beach Condo. Ass'n v. Dep't of Cmty. Affairs, 186 N.J. 5, 16 (2006). The Township has the burden of demonstrating that the decision was unsupported by substantial credible evidence or was inconsistent with the applicable statutes and regulations, or that the DEP made a clear error of judgment in applying the law to the facts of record. Ibid.; In re Adoption of Amendments to Water Quality Management Plans, 435 N.J. Super. 571, 582 (App. Div.), certif. denied, 219 N.J. 627 (2014).
In reviewing the DEP's determination, we owe deference to the agency's expertise and to its reasonable construction of its enabling statute and regulations. "We will ordinarily defer to an agency's construction of its enabling statute and its regulations, particularly where the Legislature has relied on the agency's expertise in enforcing a complex regulatory scheme." SJC Builders, LLC v. State of N.J. Dep't of Envtl. Prot., 378 N.J. Super. 50, 54 (App. Div. 2005) (citations omitted).
In its brief, the Township presents two points, divided into subheadings, as follows:
I. THE DEP COMMISSIONER ERRED IN DENYING THE TOWNSHIP'S REQUEST FOR AN ADJUDICATORY HEARING
A. The Township's Significant Property Interest Is at Stake in the Permit Decision.
B. The DEP Approval Process for the CDA Permits Created A Substantial Risk of Erroneous Deprivation of the Township's Interests.
1. The Truncated DEP Review Was Procedurally Insufficient and Deprived the Township of its Property Rights.
2. The Builder's Remedy Suit and Site Plan Proceedings Did Not Satisfy the Township's Due Process Rights.
C. A Hearing Before an Administrative Law Judge is Not Detrimental to the Government's Interests
II. THE DEP'S ISSUANCE OF THE PERMITS WAS ARBITRARY AND CAPRICIOUS
A. Increased Flood Elevation.
B. The DEP Presumption of No Adverse Effect.
C. The Factual Findings Regarding a "Channel."
Having reviewed the record, in light of the applicable legal standards, we conclude that the Township's arguments are not supported by the evidence, and we find no basis to disturb the DEP Commissioner's thorough and well-reasoned decision. Little further discussion is required. R. 2:11-3(e)(1)(E).
On the adjudicatory hearing issue, we agree with the DEP and CDA that Freshwater Wetlands is directly on point. As in that case, the Township had the benefit of both an extensive, two-year DEP review process, and an evidentiary hearing on the site plan application. In addition, the Township had a chance to present its environmental evidence, and cross-examine CDA's experts, in the two-week Mount Laurel trial. As in Freshwater Wetlands, an additional trial-type hearing was not required. Freshwater Wetlands, supra, 185 N.J. at 471-73. Moreover, in the context of this case, requiring an OAL hearing would only serve to unjustifiably delay the construction of affordable housing. See id. at 473.
We agree with the DEP that the Township's speculative concerns about flooding did not entitle the Township to an OAL hearing. Ordinarily, a concern by local property owners that development will cause flooding in the neighborhood is not "the type of 'particularized property interest' that entitle[s] them to a trial-type hearing." Ibid. (citing Cunningham v. Dep't of Civil Service, 69 N.J. 13 (1975)); see In re Auth. for Freshwater Wetlands Statewide Gen. Permit, 433 N.J. Super. 385, 407-08 (App. Div. 2013). Further, for the reasons cogently explained in the DEP staff engineering report and the Commissioner's decision, the evidence does not support the Township's concerns. Specifically, the CDA project will reduce rather than add net fill and impervious cover to this property, and it will add flood storage volume. CDA's apartment buildings will be located entirely outside the flood channel (the floodway), and CDA will remove an existing building from the floodway. Its project will not increase the amount of flooding on neighboring properties, including the Township's property.
On the merits of the permitting decisions, the DEP's factual findings are supported by substantial credible evidence in the record of the agency's extensive permit review process. See Aqua Beach, supra, 186 N.J. at 16. We owe particular deference to those factual findings because they are informed by the agency's environmental expertise. See SJC Builders, supra, 378 N.J. Super. at 54. In light of those factual findings, there is no basis to disturb DEP's decision to issue the permits.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION