Salas v. State

• Decision Date: 30 October 2018
• Docket Number: DOCKET NO. A-2825-16T1
• Parties: FRANK SALAS and JOAN SALAS, Plaintiffs-Respondents, v. STATE OF NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, Defendant-Respondent, and ASSOCIATION FOR GOVERMENTAL RESPONSIBILITY, ETHICS AND TRANSPENCY, JODY K. SOWELL, HARRY SOWELL, NANCY BRADSHAW, HELENA LEONARD, GRAHAM STARR and PATRICIA F. BURKE, Plaintiffs-Appellants, v. STATE OF NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, DAVID B. FANZ, ASSISTANT DIRECTOR, DIVISION OF LAND USE REGULATION (in his individual and official capacities), RYAN ANDERSON, SUPERVISOR, ENVIRONMENTAL SPECIALIST 4, OF THE BUREAU OF COASTAL REGULATION (in his individual and official capacities), FRANK SALAS and JOAN SALAS (as indispensable parties), Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

FRANK SALAS and JOAN SALAS, Plaintiffs-Respondents, v. STATE OF NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, Defendant-Respondent,andASSOCIATION FOR GOVERMENTAL RESPONSIBILITY, ETHICS AND TRANSPENCY,JODY K. SOWELL, HARRY SOWELL, NANCY BRADSHAW, HELENA LEONARD,GRAHAM STARR and PATRICIA F. BURKE, Plaintiffs-Appellants, v. STATE OF NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION,DAVID B. FANZ, ASSISTANT DIRECTOR, DIVISION OF LAND USE REGULATION

(in his individual and official capacities), RYAN ANDERSON, SUPERVISOR,

ENVIRONMENTAL SPECIALIST 4, OF THE BUREAU OF COASTAL REGULATION

(in his individual and official capacities), FRANK SALAS

and JOAN SALAS (as indispensable parties), Defendants-Respondents.

DOCKET NO. A-2825-16T1

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Argued September 25, 2018

October 30, 2018

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

Before Judges Yannotti, Rothstadt and Natali.

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket Nos. L-1001-16 and L-1753-16.

Donald F. Burke argued the cause for appellants (Law Office of Donald F. Burke, attorneys; Donald F. Burke and Donald F. Burke, Jr., on the briefs).

Ira E. Weiner argued the cause for respondents Frank and Joan Salas (Beattie Padovano, LLC, attorneys; Ira E. Weiner, on the brief).

Michael J. Schuit, Deputy Attorney General, argued the cause for respondents New Jersey Department of Environmental Protection, David B. Fanz and Ryan Anderson (Gurbir S. Grewal, Attorney General, attorney; Jason W. Rockwell, Assistant Attorney General, of counsel; Michael J. Schuit, Deputy Attorney General, on the brief).

PER CURIAM

This appeal arises from orders entered by the Law Division in these consolidated matters on January 20, 2017, and January 31, 2017, which denieda motion by Donald F. Burke and Patricia K. Burke (collectively, Burke) to intervene and stay administrative proceedings before the New Jersey Department of Environmental Protection (NJDEP); denied a motion for summary judgment by Association for Governmental Responsibility, Ethics, and Transparency, Jody K. Sowell, Harry Sowell, Nancy Bradshaw, Helena Leonard, Graham Starr, and Patricia F. Burke (collectively, the Association); and granted the NJDEP's motion to dismiss the Association's complaint. We affirm.

I.

Frank Salas and Joan Salas (collectively, Salas) are the owners of approximately .48-acres on Gale Road, in the Township of Brick, Ocean County. In 2002, Salas filed an application with the NJDEP pursuant to the Coastal Area Facility Review Act (CAFRA), N.J.S.A. 13:19-1 to -21, for a general permit (GP), which would allow the construction of a single-family home and driveway on the property. In December 2003, the NJDEP issued the GP, but required Salas to obtain a permit pursuant to the Freshwater Wetlands Protection Act (FWPA), N.J.S.A. 13:9B-1 to -30, to allow the filling of wetlands on the property.

In January 2004, Salas filed an administrative appeal challenging the condition the NJDEP placed on the GP. Salas also applied to the NJDEP for a letter of interpretation (LOI), to confirm the presence of freshwater wetlands or any transition area on the property. See N.J.S.A. 13:9B-8; N.J.A.C. 7:7A-4.2(c). In March 2004, the NJDEP issued the LOI to Salas, finding the property consisted of freshwater or tidal wetlands and an associated transition area. Salas filed an administrative appeal challenging the LOI determination.

The NJDEP referred the administrative appeals to the Office of Administrative Law (OAL) for a hearing before an Administrative Law Judge (ALJ). In November 2005, the ALJ issued an initial decision on the appeals. The ALJ concluded that the NJDEP's LOI determination was proper, and that the conditions the NJDEP imposed on the GP were appropriate. On December 29, 2005, the Commissioner of the NJDEP issued a final decision on the appeals, adopting the ALJ's initial decision.

In February 2008, Salas submitted an application to the NJDEP for a freshwater wetlands individual permit, and in October 2010, the NJDEP denied the application. Salas filed an administrative appeal from that decision, and the NJDEP referred the matter to the OAL for a hearing. Thereafter, Salas and theNJDEP reached a settlement of the appeal, which was memorialized in a stipulation executed in December 2014.

The parties agreed the NJDEP would reconsider the application of the agency's regulatory standards to the subject property in order to address Salas's claim that the application of those standards resulted in a taking of property without just compensation. The FWPA provides in pertinent part that

[i]f the court determines that the issuance, modification, or denial of a freshwater wetlands permit by the [NJDEP] pursuant to this act constitutes a taking of property without just compensation, the court shall give the department the option of compensating the property owner for the full amount of the lost value, condemning the affected property pursuant to the provisions of the "Eminent Domain Act of 1971," [N.J.S.A. 20:3-1 to -50], or modifying its action or inaction concerning the property so as to minimize the detrimental effect to the value of the property.

[N.J.S.A. 13:9B-22(b).]

The NJDEP has adopted a rule, which implements this provision of the FWPA, N.J.A.C. 7:7A-13.1. The rule was previously codified at N.J.A.C. 7:7A-17.1, but re-codified with certain changes at N.J.A.C. 7:7A-13.1, effective December 18, 2017. See 49 N.J.R. 834(a) (May 1, 2017); 49 N.J.R. 3849(a) (Dec. 18, 2017). The rule provides that that "[i]f the issuance, modification, ordenial of an individual freshwater wetlands permit would constitute a taking without just compensation," the agency may

1. [c]ompensate the property owner for the lost value of the property;

2. [c]ondemn the affected property pursuant to the Eminent Domain Act of 1971, N.J.S.A. 20:3-1 [to -50]; and/or

3. [r]econsider and modify its action or inaction concerning a permit so as to minimize the detrimental effect to the value of the property.

[N.J.A.C. 7:7A-13.1(a).]

The NJDEP's rule also states that the agency may reconsider and modify a permitting action or inaction to minimize the detrimental effect such action or inaction may have on the value of the property, provided that

1. [t]he [NJDEP] has rendered a decision on a permit application under the rules in this chapter as strictly applied;

2. [a]ll administrative and judicial appeals of the permit decision have been concluded; and

3. [a]ny of the following requirements are met:

i. [a] court has determined that the issuance, modification, or denial of an individual freshwater wetlands permit would constitute a taking of property, and the property owner thereupon submits a request for a reconsideration and modification of the permit action or inaction;ii. [a] takings complaint has been filed with the court or the court has determined that the issuance, modification or denial of the individual freshwater wetlands permit would constitute a taking of property, and the [NJDEP] initiates the reconsideration; or

iii. [t]he issuance, modification, or denial of an individual freshwater wetlands permit is for a single-family home or duplex and the [NJDEP] initiates the reconsideration prior to the filing of a takings complaint.

[N.J.A.C. 7:7A-13.1(b).]

The NJDEP and Salas agreed that the subject property consists entirely of freshwater and coastal wetlands and an associated transition area. The stipulation notes that Salas had revised the plan for the proposed dwelling and driveway. The record shows that Salas agreed to reduce the footprint of the dwelling to .093 acres of the delineated wetlands, construct the dwelling on pilings, and use pervious material for the driveway. Salas also agreed to make a contribution to the Wetlands Mitigation Council or some other suitable entity.

The NJDEP and Salas further stipulated that the agency could not approve the revised plan under the applicable regulatory standards governing coastal zone management and individual freshwater wetlands permits. The NJDEP therefore agreed to initiate reconsideration of the permit denial and authorizationof the revised plan, in accordance with N.J.A.C. 7:7A-17.1 (now N.J.A.C. 7:7A-13.1).

The stipulation stated that Salas would file a complaint against the NJDEP asserting an inverse condemnation claim. The stipulation also stated that within sixty days after filing and service of the complaint, the NJDEP would publish notice of its intent to reconsider the denial of the permit and application of its regulatory standards to the subject property. The NJDEP would provide for a fifteen-day public comment period, as required by its regulations.

The stipulation further provided that within 180 days after publication of the notice, the NJDEP would complete its written analysis of the applicable standards, review the revised plan and proposed mitigation contribution, and issue a final decision in the matter. Salas agreed to dismiss the administrative appeal challenging the permit denial, but retained the right to reinstate the appeal if the NJDEP did not issue an amelioration authorization allowing implementation of the revised plan.

In April 2016, Salas filed a complaint in the Law Division against the NJDEP asserting an inverse condemnation claim. The trial court docketed the matter as OCN-L-1001-16. On June 8, 2016, Burke filed a motion to intervene in that action. Later that month, the NJDEP published notice of its intent toreconsider the denial of Salas's permit application and the application of its regulatory standards to the subject property.

In June 2016, the Association filed a complaint against the NJDEP, various NJDEP employees, and Salas. In that action, which the trial court...