46 A.3d 575
N.J. Super. Ct. App. Div.2012Background
- Appellants Asdal Builders, LLC, Asdal Renovations, LLC, and William Asdal challenge a DEP final decision on floodway renovation and construction.
- The DEP consolidated two matters: a permit case denying a stream encroachment permit nunc pro tunc or hardship waiver, and a penalty case for FHACA and FWPA violations.
- The 24-plus acre property lies in Lebanon and Morris Counties, within the floodway of the South Branch Raritan River and on the State Register of Historic Places.
- Renovations included restoring a civil-war era site as the Raritan Inn, adding a zero-energy structure, relocating a garage, and constructing a stone retaining wall; debris-clearing occurred prior to work.
- DEP issued multiple NOVs beginning in 2004 for floodway disturbances and wetlands violations, followed by AONOCAPAs in 2007 and 2009, ALJ Proceedings, and a Commissioner decision affirming some rulings and remanding others.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the SEP denial was correctly grounded | Asdal contends the ALJ findings were ignored and the SEP denial misapplies the abandonment rule. | DEP asserts the structures were abandoned and the net fill argument is improper. | Partially reversed; remanded for reconsideration consistent with opinion. |
| Whether individual liability attaches to Asdal | Asdal seeks reversal of corporate officer liability for FHACA and FWPA violations. | DEP maintains corporate officers may be liable under applicable rules. | Vacated; reversal for lack of statutory basis for individual liability; remanded. |
| Whether enhanced penalties under the EEEA apply to pre-existing violations | Penalties for 2004-2004 activities cannot be enhanced retroactively under the EEEA. | EEEA allows enhanced penalties for ongoing FHACA/FWPA violations after enactment. | Rejected; enhanced penalties improper for pre-existing violations; remand for proper consideration. |
| Whether the penalties were properly weighed and imposed by the Commissioner | ALJ credibility findings should guide penalties; the Commissioner erred in crediting or not crediting certain findings. | Commissioner acted within discretion in light of PHACA and FWPA violations and historic importance of property. | Remanded for redetermination of penalties in light of the opinion. |
| Whether the matter should be remanded for further proceedings | Ambiguities in factual/legal determinations require further agency fact-finding. | Existing record supports some determinations; remaining issues require additional review. | Remanded for additional proceedings consistent with the opinion. |
Key Cases Cited
- New Jersey Dept. of Environmental Protection v. Standard Tank Cleaning Corp., 284 N.J. Super. 381 (App. Div. 1995) (responsible corporate officer doctrine discussed in context of environmental penalties)
- Ventron Corp., N.J. 473 (Supreme Court 1983) (prospective/retroactive statute interpretation for environmental penalties)
- Donelly v. Trenton Water Power Co., 77 N.J.L. 659 (Ch. 1909 (E. & A.)) (definition of millrace/raceway context used in flood plain glossary)