N.J. HIGHLANDS COALITION VS. NEW JERSEY DEPARTMENTOF ENVIRONMENTAL PROTECTION(NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION)
196 A.3d 982
N.J. Super. Ct. App. Div.2017Background
- Bi-County owns ~85 acres in Oakland within New Jersey Highlands; wetlands on the site were designated exceptional resource value and documented as Barred Owl habitat.
- A 1991 Mt. Laurel settlement and stipulation of dismissal rezoned the site for inclusionary housing and resulted in a 1991 WQMP amendment placing the property in a sewer service area.
- Over time project plans shifted: Pinnacle proposed 313 units (1999), later revised to 209 units (2004–2007) with a comprehensive conservation plan (CCP) preserving ~16 acres of uplands to protect Barred Owl habitat.
- DEP reclassified the wetlands as exceptional resource value (150-foot transition area), required redesign, and later (after procedural disputes and reconsideration of the 1991 WQMP amendment) settled with Bi-County in 2014 to issue freshwater wetlands general permits (10B and 11) and a transition area waiver for a reduced 204‑unit plan.
- DEP’s permitting decision relied on its T&E Unit review, the CCP, mitigation (preserving 16.81 acres of uplands and expanding some transition areas), and USFWS conditions (surveys and timing restrictions for bats and plant species).
- Appellants (Highlands Coalition; Sierra Club) appealed, challenging (1) DEP’s conclusion that the 2007 local approval was not a MLUL "final approval" (affecting Highlands Act exemption), (2) DEP’s wetlands permit findings re: Barred Owl and other T&E species, and (3) issuance of the transition area waiver.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 2007 Planning Board approval was a "final approval" under MLUL for purposes of Highlands Act exemption | The 2007 approval was an official action that vested rights and thus was final; exemption expired because construction did not commence | DEP: approval was conditional; many MLUL-required conditions (county approval, DEP permits, amended site plan for reduced unit count) remained outstanding, so not final | Court: Approval was not final because required conditions and all MLUL approvals (including DEP permits and amended site plan for 204 units) were not satisfied; exemption applies to Bi-County |
| Whether DEP's issuance of general permits 10B and 11 violated FWPA/N.J.A.C. 7:7A-4.3(b)(3) by failing to protect Barred Owl habitat | Permits and waiver permit forest fragmentation and loss of habitat; DEP failed to find whether the project jeopardizes Barred Owl existence | DEP: T&E Unit found loss was minimal (<.2–.35 acres) and offset by preserving 16.81 acres of upland and expanded transition areas; monitoring and mitigation protect habitat | Court: DEP’s factual and technical determinations were supported by record and not arbitrary or capricious; permits lawful |
| Whether DEP ignored or failed to protect federally listed species (Indiana bat, Northern long-eared bat, Small‑Whorled Pogonia) | DEP failed to address USFWS concerns and did not make findings about impacts to these species | DEP: CCP and settlement required surveys and USFWS review; permits include pre-construction surveys, USFWS approval, and seasonal tree‑clearing limits | Court: DEP considered these species, incorporated USFWS conditions into permits, and required surveys and timing restrictions; record adequate |
| Whether DEP lawfully granted the transition area waiver under N.J.S.A. 13:9B-18 and N.J.A.C. 7:7A-6.1(d) | Waiver lacks required scientific documentation showing no substantial impact; preserving uplands cannot substitute for transition-area protections | DEP: Bi-County’s compliance statement addressed sediment/nutrient/pollutant transport, species impacts, water quality, and proposed compensatory preservation and stormwater controls; DEP reviewed and found standards met | Court: Bi-County satisfied regulatory standards; DEP reasonably concluded waiver appropriate with compensatory preservation and mitigation; decision affirmed |
Key Cases Cited
- Pub. Serv. Elec. & Gas Co. v. N.J. Dep't of Envtl. Prot., 101 N.J. 95 (standard of review for agency action)
- Univ. Cottage Club of Princeton N.J. Corp. v. N.J. Dep't of Envtl. Prot., 191 N.J. 38 (agency action review; deference)
- In re Stream Encroachment Permit No. 0200-04-0002.1 FHA, 402 N.J. Super. 587 (deference to DEP on development-vs-conservation judgments)
- Pinelands Pres. All. v. State, Dep't of Envtl. Prot., 436 N.J. Super. 510 (limits of agency expertise and deference)
- Utley v. Bd. of Review, Dep't of Labor, 194 N.J. 534 (agency statutory interpretation not controlling on purely legal issues)
- Field v. Franklin, 190 N.J. Super. 326 (definition/application of final approval concept under MLUL)
- N.J. Dep't. of Envtl. Prot. v. Huber, 213 N.J. 338 (FWPA purpose and protections)