Musconetcong Watershed Ass'n v. N.J. Dep't of Envtl. Prot.
| Docket Number | A-2491-20 |
| Decision Date | 03 August 2023 |
| Parties | MUSCONETCONG WATERSHED ASSOCIATION, Plaintiff-Appellant, v. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, Defendant-Respondent, and HAMPTON FARM, LLC, Third-Party Defendant-Respondent. |
| Court | New Jersey Superior Court — Appellate Division |
Argued June 6, 2023
On appeal from the New Jersey Department of Environmental Protection.
Daniel A. Greenhouse argued the cause for appellant (Eastern Environmental Law Center, attorneys; Daniel A. Greenhouse, on the briefs).
Jason Brandon Kane, Deputy Attorney General, argued the cause for respondent New Jersey Department of Environmental Protection (Matthew J. Platkin, Attorney General, attorney; Melissa H Raksa, Assistant Attorney General, of counsel; Jason Brandon Kane, on the briefs).
Guliet D. Hirsch argued the cause for respondent Hampton Farm, LLC (Archer & Greiner, PC, attorneys, join in the brief of respondent New Jersey Department of Environmental Protection Guliet D. Hirsch, on the brief).
Before Judges Gilson, Gummer, and Messano.
GILSON, P.J.A.D.
On February 23, 2017, the New Jersey Department of Environmental Protection (DEP) issued a flood hazard area applicability determination (FHA Determination) to Hampton Farm, LLC (Hampton Farm). Shortly thereafter, appellant Musconetcong Watershed Association (MW Association) requested the DEP to conduct an adjudicatory hearing so it could challenge the FHA Determination. Four years later, on April 6, 2021, the DEP denied that request. MW Association timely appealed from the April 6, 2021 decision. It also sought leave to appeal from the February 23, 2017 FHA Determination, contending it had become final when the DEP denied MW Association's request for a hearing. On an interlocutory motion, a two-judge panel of this court denied leave. We now reconsider, reverse that interlocutory ruling, and grant leave to appeal.
We hold that the DEP's FHA Determination became a final agency decision subject to appeal when the DEP denied MW Association's request for an adjudicatory hearing to challenge the FHA Determination. At that time, all administrative remedies were exhausted. Accordingly, on this appeal, we address both (1) the DEP's April 6, 2021 decision denying MW Association's request for an adjudicatory hearing; and (2) the DEP's February 23, 2017 FHA Determination.
We hold that MW Association did not have a right to an adjudicatory hearing because no statute conferred that right to MW Association, which is a third-party objector, and MW Association did not have a particularized property interest warranting a hearing. Accordingly, we affirm the April 6 2021 final agency decision.
Because we have reversed the ruling on the interlocutory motion, we give the DEP two options concerning its FHA Determination. The DEP can either (1) elect to address MW Association's challenges to its February 23, 2017 FHA Determination and a new briefing schedule will be issued; or (2) request a remand so it can expand and update the factual findings supporting its FHA Determination. The DEP is to select one of those options by submitting a letter to this court within thirty days from the issuance of this opinion.
We discern the relevant facts and procedural history from the administrative record, which we had previously limited to the DEP's decision denying the adjudicatory hearing based on motions filed by the parties.
This appeal arises out of the long-running efforts of Hampton Farm to develop approximately seventy-seven acres of real property it owns in the Borough of Hampton (the Property). The Musconetcong River runs along the Property's northern and western boundaries, and Valley Road runs along its southern boundary. Hampton Farm also owns a separate parcel of approximately sixty-seven acres of land located on the southern side of Valley Road (the Southern Lot). The Southern Lot was not part of Hampton Farm's application for an FHA Determination.
In the early 1980's, Jacob Haberman, the predecessor in title to Hampton Farm, filed a builder's remedy action in the Law Division (the Builder's Remedy Action).[1] In the fall of 2015, the Borough of Hampton and Haberman executed an amended settlement agreement in the Builder's Remedy Action, which allowed the Property to be developed with 333 dwelling units, including forty-five units for low- and moderate-income households. Following a fairness hearing, on March 30, 2016, a final judgment was entered in the Builder's Remedy Action.
As part of the proceedings in the Builder's Remedy Action, MW Association objected to the proposed site plan for the Property, contending that it did not account for an onsite tributary of the Musconetcong River. To address that issue, a provision of the final judgment directed Haberman to file an application with the DEP for a flood hazard area "verification" for the Property.
Under the Flood Hazard Area Control Act (FHAC Act), N.J.S.A. 58:16A-50 to -103, and its regulations, N.J.A.C. 7:13-1.1 to -24.11, certain types of developments are regulated and require permits if the development is in the flood hazard area or the riparian zone of a regulated water. N.J.A.C. 7:13-2.1 to -2.4. Generally, all waters in this State are regulated. N.J.A.C. 7:13-2.2(a). The regulations promulgated under the FHAC Act, however, provide that a segment of water that has a drainage area of less than [fifty] acres" is not regulated, provided it "has no discernible channel," "is confined within a lawfully existing, manmade conveyance structure or drainage feature," "and/or . . . is not connected to a regulated water." Ibid. A riparian zone exists along every regulated water, and a flood hazard area exists along every regulated water that has a drainage area of fifty acres or more. N.J.A.C. 7:13-2.3(a) and (b).
The FHAC Act and its regulations allow the DEP to determine, upon request, that a flood hazard area permit is not required if a water feature on a property is not a "regulated water." N.J.A.C. 7:13-2.2 and -2.5. If a regulated water has a drainage area of less than fifty acres, the water does not have a flood hazard area that is regulated under the FHAC Act. N.J.A.C. 7:13-2.3(b).
In August 2016, Hampton Farm applied to the DEP for an FHA Determination. In its application, Hampton Farm sought "to confirm that the man-made swale emanating near the culvert under Valley Road located on the south-east portion of the [P] roperty is not a [flood hazard area] regulated water and that the Musconetcong River is the only [f]lood [h] azard [a]rea . . . regulated water on the . . . [P]roperty." In the application Hampton Farm also stated:
There is an S-shaped, approximately 350 foot long, man-made vegetated drainage feature that exists in the southwest corner of the [P]roperty emanating near the Valley Road culvert and extending to a point approximately 200 feet from the north-to-south tree line located between the cemetery property boundary and the Musconetcong River. This S-shaped, man-made vegetated feature has no direct surface connection to the Musconetcong River and we have calculated the drainage area to the end of this man-made feature to be 47.1 acres.
On October 6, 2016, the Friends of Musconetcong, an environmental group related to MW Association, submitted public comments to the DEP, consisting of a report challenging the sufficiency of Hampton Farm's FHA Determination application. According to the report, the drainage area of the water feature on the Property is greater than fifty acres and extends beyond the Property. In that regard, the report included graphic depictions and analysis contending that the water feature on the Property connects to and drains into the Musconetcong River. The Friends of Musconetcong thereafter submitted additional public comments, asserting that Hampton Farm's application failed to provide the DEP with the best available topographical mapping and aerial photographs as required by N.J.A.C. 7:13-2.5(d).
On February 23, 2017, the DEP issued an FHA Determination to Hampton Farm, stating that a "[f]lood [h]azard [a]rea [p] ermit is not required for the water feature crossing Valley Road." The DEP concluded "[t]he feature has a drainage area of less than [fifty] acres and it [is] not connected to a regulated water." The DEP's FHA Determination did not address the information provided by the Friends of Musconetcong.
On March 28, 2017, MW Association filed a request with the DEP for an adjudicatory hearing to challenge the FHA Determination. In the hearing request, MW Association asserted that Hampton Farm's calculation of the drainage area was inaccurate and that the application included insufficient mapping and data to support the FHA Determination.
The DEP did not respond to MW Association's request for a hearing until four years later. On April 6, 2021, the DEP finally notified MW Association that it was denying its request for an adjudicatory hearing. The DEP did not explain why it had waited four years to respond to the request. Instead, it briefly addressed the FHA Determination:
To continue reading
Request your trial