Toll Bros., Inc. v. State, Dept. of Environmental Protection

• Decision Date: 11 July 1990
• Parties: TOLL BROTHERS, INC., Plaintiff-Appellant, v. STATE of New Jersey, DEPARTMENT OF ENVIRONMENTAL PROTECTION, Defendant-Respondent, and Mercer County Planning Board, Defendant.
• Court: New Jersey Superior Court — Appellate Division

Page 519

242 N.J.Super. 519

577 A.2d 845

TOLL BROTHERS, INC., Plaintiff-Appellant, v. STATE of New Jersey, DEPARTMENT OF ENVIRONMENTAL PROTECTION Defendant-Respondent and Mercer County Planning Board, Defendant.

Superior Court of New Jersey,

Appellate Division.

Argued June 11, 1990.

Decided July 11, 1990.

Thomas F. Carroll, III, for plaintiff-appellant (Hill, Wallack & Masanoff, attorneys; Thomas F. Carroll, Princeton, on the brief).

Stuart J. Lieberman, Deputy Atty. Gen., for defendant-respondent (Robert J. Del Tufo, Atty. Gen., attorney; Michael R. Clancy, Asst. Atty. Gen., of counsel; Stuart J. Lieberman, on the brief).

Before Judges MUIR, Jr. and SKILLMAN.

The opinion of the court was delivered by

SKILLMAN, J.A.D.

On May 1, 1985, the Chairperson of the Washington Township Planning Board (Township Planning Board) sent a letter to the Chairperson of the Mercer County Planning Board (County Planning Board) notifying her that the Township Planning Board had adopted a new master plan which included a recommendation that the sewer system be expanded. The letter urged the County Planning Board to adopt the recommended sewer expansion as a part of the county's "208 Water Quality Management Plan Amendment." The letter further stated that adoption of this proposal would allow the "prior approved projects" of certain builders to "move forward." Plaintiff Toll Brothers, Inc. was apparently one of those builders.

On September 3, 1985, Mercer County transmitted an amendment to its Water Quality Management (WQM) Plan, providing for expansion of the sewer service area in Washington Township, to defendant Department of Environmental Protection (DEP) for approval.

On November 4, 1985, DEP published notice of the proposed amendment in the New Jersey Register. 17 N.J.R. 2689. The notice stated that interested parties would have 30 days within which to submit written comments and to request the scheduling of a nonadversarial hearing.

In December 1985 DEP adopted the Statewide WQM Program Plan. 18 N.J.R. 110. This plan, among other things, required the adoption of a county Wastewater Management Plan (WMP) as a precondition of DEP approval of any significant change in a sewer service area. Given this new requirement as well as the demands of various other Mercer County municipalities for amendments in its WQM Plan, the Director of Mercer County's WQM program indicated to DEP that the county anticipated preparing a comprehensive county-wide WMP in lieu of processing individual amendments for all of the municipalities in the county. To that end, the county requested DEP to postpone a final decision on Washington's proposed plan amendment. This postponement was agreed to by Washington Township and the amendment was deactivated. However, the deactivation of the plan amendment relating to the sewer service area in Washington Township apparently was not communicated to affected parties such as plaintiff.

Mercer County never submitted a county-wide WMP to DEP in accordance with the statewide plan adopted in December 1985. It also never requested DEP to reactivate the plan amendment relating to the sewer service area in Washington Township.

On March 31, 1988, plaintiff filed an application for preliminary subdivision approval. The Township Planning Board approved the subdivision application for 93 lots, subject to the condition that plaintiff's property be included within the Section 208 sewer service area. But the County Planning Board denied the application on May 10, 1989 on the ground that plaintiff's property is beyond the current sewer service area.

On May 16, 1989, plaintiff's counsel sent a letter to DEP requesting the agency to approve Mercer County's 1985 application to amend its WQM plan relating to Washington Township.

On June 6, 1989, the Chief of the Wastewater Planning Section of the Bureau of Water Quality Planning sent a reply to plaintiff's counsel advising him that the county's plan amendment had been deactivated and that neither the county nor the township had ever requested that it be reactivated. The letter further noted that "[s]ince the amendment was deactivated, the WQM Plan amendment requirements have changed significantly, particularly with regard to the requirements for a WMP" and recommended that plaintiff "work with the township to develop a WMP that would address all of the wastewater needs of the Township."

On June 8, 1989, plaintiff filed suit against DEP and the Mercer County Planning Board. ¹ The complaint alleged that DEP had a ministerial duty under N.J.A.C. 7:15-3.4c(4)(i)(2) ² to act within 60 days upon any petition to amend a WQM plan. The complaint further alleged that DEP's failure to finally approve Mercer County's plan amendment did not substantially advance any legitimate public interest and regulated plaintiff's property into economic inutility without payment of just compensation, thereby violating plaintiff's rights under the Fifth and Fourteenth Amendments to the U.S. Constitution and the New Jersey Constitution, Art. I, par. 1 and par. 20. Accordingly, plaintiff demanded judgment directing DEP to forthwith approve the 1985 plan amendment, thereby including plaintiff's property within the township's sewer service area. In addition, plaintiff demanded an award of "just compensation" for the deprivation of its property rights.

Plaintiff and DEP filed cross motions for summary judgment. The trial court determined that plaintiff's complaint had been filed beyond the 45-day limit permitted by R. 4:69-6(a) and R. 2:4-1(b) and therefore entered judgment in favor of DEP.

We conclude that plaintiff's complaint was not time-barred. However, we further conclude that the complaint is without merit and therefore affirm the judgment in favor of DEP.

I

The trial court held that plaintiff's action was time-barred because not filed within the 45-day period permitted by R. 4:69-6(a) and R. 2:4-1(b).

Preliminarily, we note that R. 4:69-6(a) is inapplicable, because DEP is a state agency whose actions are properly reviewable by this court pursuant to R. 2:2-3(a)(2) and not the Law Division. See Pascucci v. Vagott, 71 N.J. 40, 51-54, 362 A.2d 566 (1976); Equitable Life Mortgage & Realty Investors v. Div. of Taxation, 151 N.J.Super. 232, 237-238, 376 A.2d 966 (App.Div.1977), certif. den. 75 N.J. 535, 384 A.2d 514 (1977). ³

To determine whether plaintiff's action was filed beyond the time limit for an appeal to this court, it is appropriate to review briefly the statutory and regulatory framework under which the DEP processes and approves WQM plan amendments. Section 208 of the Federal Clean Water Act, 33 U.S.C. § 1251 et seq., requires each state to provide for areawide waste treatment management plans. This is done in New Jersey under the regulation of DEP pursuant to the Water Quality Planning Act, N.J.S.A. 58:11A-1 et seq. Under that act, designated water treatment management planning areas, usually counties, must submit plans to the DEP for approval. N.J.S.A. 58:11A-4, -5 and -10. These plans, and amendments thereto, are referred to as "208" plans. In accordance with N.J.S.A. 58:11A-10, DEP may not make any grants for construction of publicly owned treatment works or grant any permit which is in conflict with an adopted areawide plan. Pursuant to N.J.A.C. 7:15-3.4(b), designated planning agencies are authorized to petition the DEP to amend the statewide plan. Following a county's filing of an amendment petition, the DEP is required to make a preliminary decision within a reasonable period of time based upon a complete review of the case file, the recommendation of the DEP's Division of Water Resources, Bureau of Planning and Standards, and any other pertinent information. N.J.A.C. 7:15-3.4(c)(4). Following the DEP's preliminary approval, a public notice of the plan amendment request has to be published. N.J.A.C. 7:15-3.4(c)(4).

Written comments concerning the amendment request can be forwarded by interested parties within thirty days of the date of the notice. N.J.A.C. 7:15-3.4(c)(4)(i)(1). Parties can request a non-adversarial public hearing and, if the DEP decides that there is significant interest, a public hearing can be held. N.J.A.C. 7:15-3.4(c)(4)(i)(2). The regulations further provide that if no public hearing is held, the DEP "shall render a final decision on the amendment within sixty (60) days." Id.

We have no doubt that the adoption of areawide WQM plans and amendments thereto constitutes quasi-legislative rule-making. An "administrative rule" is any "agency statement of general applicability and continuing effect that implements or interprets law or policy, or describes the organization, procedure or practice requirements of any agency." N.J.S.A. 52:14B-2(e). An agency determination must be considered an administrative rule when all or most of the relevant features of administrative rules are present and preponderate in favor of the rule-making process. Metromedia, Inc. v. Director, Div. of Taxation, 97 N.J. 313, 331, 478 A.2d 742 (1984). This conclusion is warranted

if it appears that the agency determination, in many or most of the following circumstances, (1) is intended to have wide coverage encompassing a large segment of the regulated or general public, rather than an individual or a narrow select group; (2) is intended to be applied generally and uniformly to all similarly situated persons; (3) is designed to operate only in future cases, that is, prospectively; (4) prescribes a legal standard or directive that is not otherwise expressly provided by or clearly and obviously inferable from the enabling statutory authorization; (5) reflects an administrative policy that (i) was not previously expressed in any official and explicit agency determination, adjudication or rule, or (ii) constitutes a material and significant change from a clear, past agency position on the identical subject matter; and (6) reflects a decision on administrative regulatory...