Beattystown Community Council v. Department of Environmental Protection

• Decision Date: 22 June 1998
• Citation: 712 A.2d 1170,313 N.J.Super. 236
• Parties: The BEATTYSTOWN COMMUNITY COUNCIL, Appellant, v. The DEPARTMENT OF ENVIRONMENTAL PROTECTION, Green Eagle Property Resources Limited Partnership, and Township of Mansfield, Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 236

313 N.J.Super. 236

712 A.2d 1170

The BEATTYSTOWN COMMUNITY COUNCIL, Appellant, v. The DEPARTMENT OF ENVIRONMENTAL PROTECTION, Green Eagle Property Resources Limited Partnership, and Township of Mansfield, Respondents.

Superior Court of New Jersey Appellate Division.

Argued May 19, 1998.

Decided June 22, 1998.

Michele R. Donato, Lavallette, for appellant.

William J. O'Hagan, Jr., Neptune, for respondent Green Eagle Property Resources Limited Partnership (Stout & O'Hagan, attorneys; Mr. O'Hagan, of counsel; Laurence I. Rothstein, on the brief).

Valerie Anne Gray, Deputy Attorney General, for respondent Department of Environmental Protection (Peter Verniero, Attorney General, attorney; Mary C. Jacobson, Assistant Attorney General, of counsel; Ms. Gray, on the brief).

Respondent Township of Mansfield did not file a brief.

Elizabeth S. Merritt, Washington, DC, of the District of Columbia bar, admitted pro hac vice, for amici curiae National Trust for Historic Preservation and Preservation New Jersey, Inc. (Cooper, Rose & English, attorneys; Roger S. Clapp, Summit, of counsel; Paul W. Edmonson, San Diego, CA, Ms. Merritt and Laura S. Nelson, Washington, DC, on the brief).

Before Judges DREIER, KEEFE and PAUL G. LEVY.

The opinion of the court was delivered by

PAUL G. LEVY, J.A.D.

Green Eagle Property Resources Limited Partnership (Green Eagle) obtained local approvals to build a large shopping center at the northeast corner of the intersection of State Route 57 and Airport Road in Mansfield Township, Warren County. As part of the project, certain improvements were to be made to these two intersecting roads. The improvements required application to and approval of the Department of Environmental Protection (DEP) because they were located within the Beattystown Historic District. After public hearings before the Historic Sites Council (HSC), the Assistant Commissioner of DEP in charge of such applications approved the roadway improvements. A local citizens' group, Beattystown Community Council (BCC), opposed Green Eagle's application. In this appeal, BCC contends the DEP approval was erroneous. We disagree and affirm. ¹

Green Eagle pursued DEP approval of the encroachment on the Beattystown Historic District by submitting an appropriate application. A public hearing was scheduled before the HSC, an advisory body empowered to make recommendations to the DEP. After the first HSC hearing, Assistant Commissioner Hall ruled that "[a] more complete examination of the traffic patterns associated with improvements within the historic district" was appropriate, as was exploration of the possibility of "less urban traffic standards." He also required Green Eagle to "[p]rovide more detail with plans and elevations of the proposed landscape treatment strictly within the [road right-of-way] limits within the historic district" and that the matter should be remanded to the HSC for further study in these areas. Finally, he ruled that the HSC should not consider the State Development and Redevelopment Plan (State Plan) in making its recommendations related to this application.

Further testimony was taken by the HSC, and the record was returned to the Assistant Commissioner for his final decision. By letter dated April 9, 1997, Hall approved the construction of the road improvements in question, provided that (1) a proposed concrete traffic island in the intersection was eliminated; and (2) certain aesthetic and color changes to the traffic light and paving were implemented.

On appeal, BCC contends that the Commissioner (1) failed to require exploration of "prudent and feasible alternatives" to avoid the encroachment; (2) failed to consider the State Plan in making this decision; and (3) otherwise acted arbitrarily and capriciously in granting this approval.

The Beattystown Historic District achieved its status as a state and national historic site in 1990. Its historical significance comes from its "settlement pattern, industry, architecture, and commerce.... The Village is an example of the settlements that developed in the West Jersey proprietorship in the 18th Century. Beattystown is the oldest settlement in Mansfield Township, having been established by 1762." The "industrial focus" of the early settlement can still be seen there from two buildings dating back to the 18th century. It still "retain[s] its essentially 19th century character and form." Aside from the buildings, Route 57 itself also has historical significance.

The District, approximately 60 acres in size, is located primarily in an area to the west of the Route 57/Airport Road intersection which is the focus of this appeal. But to the east of the intersection, the District extends for 1,360 feet along Route 57, one of its boundary lines being 100 feet north of the centerline of Route 57. Green Eagle's project will occupy 3.9 percent of the district, all of it being on the north side of Route 57 east of the intersection.

Green Eagle's site plan application included a traffic report showing that even without the proposed development, the intersection was too busy and frequently operated in a "failure" condition. Accordingly, it was agreed that certain improvements were required, including installation of a traffic light and widening of the lanes on Route 57 from 24 feet to 42-47 feet and Airport Road from its current 30 to 36-48 feet. The proposed roadway improvements would occupy an additional 0.6 percent of the space within the historic district.

This application is governed by N.J.S.A. 13:1B-15.131, which provides:

The State, a county, municipality or an agency or instrumentality of any thereof shall not undertake any project which will encroach upon, damage or destroy any area, site, structure or object included in the Register of Historic Places without application to, and the prior written authorization or consent of, the Commissioner of Environmental Protection. The commissioner shall solicit the advice and recommendations of the Historic Sites Council in connection with any such application and may direct the conduct of a public hearing or hearings thereon prior to granting or denying authorization or consent. The failure of the commissioner to authorize, consent or deny any such application within 120 days of application therefor shall constitute his consent thereto.

Implementing regulations govern any action by a governmental entity "which has the potential to result in direct or indirect effects on any [registered historic] district," such as Beattystown. N.J.A.C. 7:4-1.3. ² An application to proceed with such an "undertaking" must be submitted to the DEP, which must render a decision within 120 days from receipt of the final form of the application. N.J.A.C. 7:4-7.2(a), (b).

I.

In analyzing the application, the DEP's first step is to determine whether the undertaking constitutes an encroachment. N.J.A.C. 7:4-7.2(e). The DEP found that this particular roadway improvement did encroach the district "in the public right of way," as distinguished from other local site plan considerations, not relevant to the DEP inquiry. As explained in his final decision, the Assistant Commissioner found that the road widening and improvement would "have an adverse impact on the district, [but] they are not avoidable in [his] opinion." He concluded that "the record is clear that there are no meaningful alternatives to making some road and traffic improvements."

The regulations next provide that the HSC must consider the "Secretary of the Interior's Standards for the Treatment of Historic Properties (36 C.F.R. Part 68) and 'Guidelines for Preserving, Rehabilitating, Restoring, and Reconstructing Historic Buildings,' " issued by the National Park Service. The regulations then require the HSC to consider the following:

i. The public benefit of the proposed undertaking;

ii. Whether or not feasible and prudent alternatives to the encroachment exist; and

iii. Whether or not sufficient measures could be taken to avoid, reduce or mitigate the encroachment.

[ N.J.A.C. 7:4-7.2(e)(4) ].

The proposed alternatives to a signalized and widened intersection were:

1. An overpass, in which the left turn traffic from Airport Road would be sent onto the overpass "on a structure which would span over Route 57." This was rejected as creating a far greater intrusion into, and impact upon, the historic district, than would a widened and signalized intersection.

2. A proposal to lessen the scope of the roadway widening, specifically, widen Route 57 only to 37 feet and widen Airport Road only to 36 feet. The Department of Transportation rejected this option as "substandard", stating that the road widening was necessary to promote both "efficiency" and "safety" and this intersection. In rejecting this option, DEP noted that pre-existing traffic conditions caused by previously-constructed housing and commercial developments in the area (Kensington Estates and Mansfield Village Square, respectively), meant that some improvements to the intersection would have to be made, even without Green Eagle's project.

3. "Cosmetic" changes to the proposed intersection, dealing with the style and coloring of the traffic lights and curbing. This recommendation was accepted by Assistant Commissioner Hall even though there was testimony in the record that it would do little to offset the intersection's negative impact on the historic district.

4. Eliminate the proposed concrete island at the intersection, which was also accepted by the Assistant Commissioner.

5. Require the developer to build a service road along the northern perimeter of the shopping center in order to divert traffic from the intersection. The theory behind this plan would be that the service road would take up traffic which would otherwise pass through the Route 57/Airport Road intersection and hence through the historic district. The developer's engineer responded that this was not a viable alternative,...