IN THE MATTER OF THE CERTIFICATE OF THE DEPARTMENT OF ENVIRONMENTAL PROTECTION GRANTING PARTIAL RELEASE OFCONSERVATION RESTRICTIONS(DEPARTMENT OF ENVIRONMENTAL PROTECTION, AND THE STATEHOUSE COMMISSION)
A-2316-10T2
| N.J. Super. Ct. App. Div. | Jul 31, 2017Background
- Stafford Township recorded a conservation restriction (2006) over a capped 59.6-acre landfill as part of a Pinelands-related redevelopment project; the restriction generally prohibited development but allowed certain site work (e.g., landfill cap, stormwater basins).
- Stafford leased ~46.8 acres (later reduced to ~33.86 acres) of the capped landfill to a private redeveloper (Walters) to install solar panels; the lease term was 30 years.
- DEP and the State House Commission (SHC) approved a diversion and DEP issued certificates partially releasing the conservation restriction (2010; amended 2015) after finding public benefits, limited environmental impact, and acceptable compensation.
- Appellants (Pinelands Preservation Alliance, NJ Conservation Foundation, NJ Environmental Lobby) challenged DEP/SHC approvals, arguing DEP ignored public interest in perpetual preservation, misapplied Pinelands CMP/T&E protections, and failed to require adequate replacement land (arguing for a 4:1 ratio) or fully analyze alternatives.
- On remand DEP required amended compensation (replacement parcels offered 1:1 by acres and greater in appraised value) and reevaluated T&E impacts with updated ecological reports; DEP and SHC again approved the amended diversion and DEP reissued an amended certificate.
- The Appellate Division affirmed, applying administrative-review standards and deferring to DEP/Pinelands expertise where supported by substantial credible evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether DEP failed to consider the public interest in preserving the conservation-restricted landfill in perpetuity | DEP ignored statutory requirement to weigh public interest in preserving land in its natural state and treated the site as merely convenient for solar panels | DEP properly balanced public interest against significant public benefits (renewable energy for redevelopment), concluding most acreage remained natural and benefits justified partial release | Held for DEP: statute allows release with Commissioner approval; DEP adequately considered public interest and benefits |
| Whether DEP improperly relied on Pinelands CMP decisions and failed to protect threatened & endangered (T&E) species | DEP unlawfully deferred to Pinelands Commission and accepted monetary mitigation (vs. replacement land), risking harm to T&E habitat and violating CMP standards | Pinelands Commission has authority over CMP implementation; its MOAs and findings that impacts were mitigated were lawful; DEP’s review (including new ecological reports) found no irreparable T&E harm | Held for DEP: reliance on Pinelands Commission and ecological evidence was reasonable; no arbitrary or unlawful action |
| Whether Green Acres/GSPTA required a 4:1 replacement-land ratio or equivalent habitat (vs. DEP’s 1:1/value-based swap) | A 30-year lease is a "conveyance" triggering higher replacement ratios and more stringent equivalency (private sponsor → 4:1 per regulations) | Lease is a temporary, partial interest; statutory GSPTA minimum is 1:1 by value/size; Green Acres rules treat leases differently and allow DEP discretion; proposed replacement parcels met value and reasonably equivalent ecological objectives | Held for DEP: 1:1 replacement by value/size satisfied statutory requirement; DEP’s equivalency finding was supported by appraisal and ecological analysis |
| Whether DEP failed to follow its diversion rules on public benefit, alternatives, and T&E (i.e., acted arbitrarily) | DEP lacked evidence that project fulfilled an essential public need or yielded significant public benefit, failed to adequately analyze feasible alternatives, and ignored T&E risks | DEP’s record showed renewable-energy public benefits to the redevelopment, a detailed alternatives analysis showing other options infeasible or impracticable, and ecological reports demonstrating limited/mitigable T&E impacts; agency expertise merits deference | Held for DEP: administrative record contains substantial credible evidence; decisions were not arbitrary, capricious, or unreasonable |
Key Cases Cited
- Pub. Serv. Elec. & Gas Co. v. N.J. Dep't of Envtl. Prot., 101 N.J. 95 (1985) (standard for appellate review of agency action)
- Univ. Cottage Club of Princeton N.J. Corp. v. N.J. Dep't of Envtl. Prot., 191 N.J. 38 (2007) (deference to agency factual findings)
- Pinelands Pres. All. v. State, Dep't of Envtl. Prot., 436 N.J. Super. 510 (App. Div.) (2014) (agency expertise not dispositive when legal interpretation is at issue)
- Cedar Cove, Inc. v. Stanzione, 122 N.J. 202 (1991) (accepting Green Acres restrictions when municipality takes Green Acres funding)