Waterfront Development Permit No. WD88-0443-1, Lincoln Harbor Final Development, Weehawken, Hudson County, In re

• Decision Date: 13 November 1990
• Citation: 582 A.2d 1018,244 N.J.Super. 426
• Parties: In re WATERFRONT DEVELOPMENT PERMIT NO. WD88 -0443-1, LINCOLN HARBOR FINAL DEVELOPMENT, WEEHAWKEN, HUDSON COUNTY.
• Court: New Jersey Superior Court — Appellate Division

Page 426

244 N.J.Super. 426

582 A.2d 1018

In re WATERFRONT DEVELOPMENT PERMIT NO. WD88

-0443-1, LINCOLN HARBOR FINAL DEVELOPMENT,

WEEHAWKEN, HUDSON COUNTY.

Superior Court of New Jersey,

Appellate Division.

Argued Sept. 18, 1990.

Decided Nov. 13, 1990.

Gordon N. Litwin, for appellant American Littoral Society (Kenney, Kenney, Gross & McDonough, Red Bank, attorneys; Gordon N. Litwin, Newark, and Linda B. Kenney, Red Bank, of counsel and on the brief).

Kathe M. Mullally, Deputy Atty. Gen., for respondent New Jersey Dept. of Environmental Protection (Robert J. Del Tufo, Atty. Gen., attorney, Michael R. Clancy, Asst. Atty. Gen., of counsel, Kathe M. Mullally, on the brief).

Daniel E. Horgan, for intervenor Hartz Mountain Industries, Inc. (Waters, McPherson, McNeill, attorneys, Daniel E. Horgan, of counsel, Lisa A. Ciaston and Mark O. Norell, Secaucus, on the brief).

Before Judges ANTELL, O'BRIEN and KEEFE.

The opinion of the court was delivered by

ANTELL, P.J.A.D.

On April 11, 1989, the Commissioner of the Department of Environmental Protection (hereinafter "DEP") issued a Waterfront Development Permit to Hartz Mountain Industries, Inc. (hereinafter "Hartz Mountain") to complete the final build out stage of Lincoln Harbor along the Hudson River in Weehawken. The action of the Commissioner is challenged by the American Littoral Society (hereinafter "ALS") on the ground that the Commissioner breached his own department's regulations by personally displacing the Division of Coastal Resources (hereinafter "Division") to whom the power of issuing waterfront permits is confided by N.J.A.C. 7:7-1.5(a). Central to the appeal is ALS's dissatisfaction with those conditions of the permit which allow construction of the project so as to obscure the scenic view of the Hudson River and New York City skyline from the Lincoln Tunnel Helix ¹ and from Gregory Avenue and Paterson Plank Road in Weehawken.

ALS is a non-profit corporation formed primarily to encourage the study and conservation of marine life, especially in the coastal zone. It claims to have about 8000 members, about 3500 of whom reside in New Jersey. It also claims to have been active with regard to issues involving access, both physical and visual, to coastal areas.

The project for which the permit was issued is a mixed use office, retail, hotel and residential complex within the waterfront area brought under regulation by N.J.S.A. 12:5-3. The entire site covers 93.317 acres extending along approximately 3700 linear feet of Hudson River shoreline. The permit allows construction of 1,044,176 square feet of office space, 44,437 square feet of retail space, 332 hotel rooms and 55 residential units. The full build out, including previously approved applications, would comprise 2,202,316 square feet of office space, 99,324 square feet of retail and restaurant space, 332 hotel units, a 250 slip marina and 300 units of housing. Impairment of the view would be caused by the presence of two 160-foot high buildings. The vista, which has been described as "spectacular," is now enjoyed by hundreds of thousands of bus and car passengers each day. Although portions of the view will remain intact if the project proceeds as planned, it appears that its panoramic beauty will be substantially lost--except to the commercial tenants of the two towers.

N.J.S.A. 12:5-3 provides that all plans for waterfront development must be submitted to DEP and that no such improvements may be implemented without that department's approval. By regulation, DEP has prescribed that no regulated activity may be undertaken without a permit issued by the "Division." N.J.A.C. 7:7-1.5(a). "Division" is defined by N.J.A.C. 7:7-1.3 to mean the Division of Coastal Resources in the Department of Environmental Protection. There can be no doubt about DEP's intention to delegate the permit-issuing function to the Division. N.J.A.C. 7:7-4.5 speaks of public hearings to be held before the "Division." N.J.A.C. 7:7-4.4 speaks of the "Division" making an initial review of applications. N.J.A.C. 7:7-4.7 prescribes the timetable within which the "Division" must act on development applications. Involvement of the "Commissioner," as distinguished from the "Division," comes about only after an appeal is taken by an interested person aggrieved by any final action of the Division. N.J.A.C. 7:7-5.1. Where appeals are granted the Commissioner must refer them to the Office of Administrative Law for a fact-finding hearing pursuant to the Administrative Procedure Act "after which the Commissioner will make a final decision." N.J.A.C. 7:7-5.3(d).

The subject of scenic resources and design policy is specifically addressed by the regulations. N.J.A.C. 7:7E-8.12(c) provides:

New coastal development that is visually compatible with its surroundings in terms of building and site design, and enhances scenic resources is encouraged. New coastal development that is not visually compatible with existing scenic resources in terms of largescale elements of building and site design is discouraged.

"Scenic resources" are defined to include "views of the natural and/or built landscape." N.J.A.C. 7:7E-8.12(a). High rise structures, those that are more than 6 stories or more than 60 feet from existing preconstruction ground level, may be acceptable under N.J.A.C. 7:7E-7.14(a), but "[t]he proposed structure must not block the view of dunes, beaches, horizons, skylines, rivers, inlets, bays, or oceans that are currently enjoyed from existing residential structures, public roads or pathways, to the maximum extent practicable." N.J.A.C. 7:7E-7.14(a)3.

The project's impact on the area has provoked controversy, and a public hearing was held before the Division on January 11, 1989, at the Weehawken Municipal Building. It was attended by approximately 125 people, of whom 42 gave testimony, and the Division received approximately 170 letters commenting on the application. In general, the comments given in support of the project cited the municipal need for an improved tax base and respect for the local planning process. They urged that protection of the scenic view was not as important as acquiring needed tax ratables and that the local planning process had already provided at least partial protection for the views.

Opponents of the project cited loss of the views from the Lincoln Tunnel Helix, from Gregory Avenue and Paterson Plank Road, increased air pollution, increased traffic congestion and inadequate wastewater treatment as reasons for their opposition.

At some point between the date of hearing and the date the Commissioner issued the permit the Division prepared a detailed and comprehensive draft decision dated April 11, 1989, in which it concluded that the permit should be denied. In doing so, it took account of the fact that the view could be effectively protected by the design alternative of reducing the height of the buildings from the 160 feet proposed to an estimated 85 feet. Recognizing that this would entail the loss of an estimated 485,425 gross square feet from what was contemplated by the proposed design, the Division found "that the view enjoyed by millions is significant to the Hudson River waterfront region and the State of New Jersey as a whole, and that that significance outweighs the economic impacts to Hartz Mountain Industries and the Township of Weehawken of losing 485,425 square feet of office space." It added that other building design changes could be further analyzed so as to protect the view with a lesser reduction in square footage.

The draft decision of the Division was never effectuated. Instead, for reasons that do not appear in the record, the Commissioner intervened to order issuance of the permit. He did so pursuant to his own written opinion in which he found that although the proposed design would block part of the view, the costs of the redesign discussed in the Division's opinion "would far outweigh the benefits derived" from what he described as this "momentary glimpse" of the view. He also stated, with respect to reducing the height of the two buildings, "that the economic and architectural consequences would be unacceptable in that such a change would significantly reduce the viability of the project."

Explanations as to how the Commissioner reached his conclusion that the redesign would "significantly reduce the viability of the project" were not offered. Pertinent, in this connection, is the letter Hartz Mountain wrote to DEP following the hearing of January 11, 1989. It there stated that the redesign would deprive the southern side of one of the buildings of the attractive water view, "thus reducing marketability and reducing views for workers who will spend their entire days at Lincoln Harbor." In addition to having the Commissioner's findings as to underlying economic facts and figures relevant to viability, it would be useful to know, for example, whether, and just how, the Commissioner weighed Hartz Mountain's appropriation of the unobstructed majestic spectacle for the sole enjoyment of its commercial tenants when he made his determination that the original proposed design protected the public view "to the maximum extent practicable." N.J.A.C. 7:7E-7.14(a)3.

In determining the validity of agency action taken in violation of its own rules of procedure it is necessary to distinguish between interpretative and legislative rules. "A legislative rule is the product of an exercise of delegated legislative power to make law through rules. An interpretative rule is any rule an agency issues without exercising delegated legislative power to make laws through rules." 2 K. DAVIS, ADMINISTRATIVE LAW TREATISE § 7:8, at 36 (2d ed. 1979 & Supp.1989). "A legislative rule is clearly binding on the agency that issues it." Id. § 7:21, at 98 of Supp. "Legislative rules bind agencies, and interpretative rules sometimes do." [citations omitted] Id. at 250 of Main Vol. "Agencies must follow their...