IN RE SETTLEMENT OF BOROUGH OF TINTON FALLS v. DEPARTMENT OF ENVIRONMENTAL PROTECTION

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2080-04T22080-04T2

IN RE SETTLEMENT OF BOROUGH

OF TINTON FALLS v. DEPARTMENT OF

ENVIRONMENTAL PROTECTION

______________________________________________________________

 

Argued May 23, 2006 - Decided June 19, 2006

Before Judges Coburn, Collester and Lisa.

On appeal from the New Jersey Department of

Environmental Protection, Agency No. 1300-02-0021.1.

Carter H. Strickland argued the cause for appellant

Shark River Cleanup Coalition (Rutgers Environmental

Law Clinic, attorneys; Mr. Strickland, on

the brief).

Edward J. McKenna, Jr., argued the cause for respondent Borough of Tinton Falls (McKenna, DuPont, Higgins & Stone, attorneys; Edward J. McKenna, Jr., on the brief).

Rachel Horowitz, Deputy Attorney General, argued the cause for respondent New Jersey Department of Environmental Protection (Zulima V. Farber, Attorney General, attorney; Michael J. Hass, Assistant Attorney General, of counsel; Ms. Horowitz, Deputy Attorney General, on the brief).

Michael L. Rodburg, argued the cause for intervenor

CPG Tinton Falls Urban Renewal, LLC (Lowenstein

Sandler, attorneys; Mr. Rodburg, on the brief).

PER CURIAM

Shark River Cleanup Coalition, Inc., appeals from a final administrative decision issued by the Commissioner of the Department of Environmental Protection ("DEP"). The decision approved a settlement between DEP and the Borough of Tinton Falls. We affirm.

In August 2001, Tinton Falls, the Township of Neptune, and three landowners agreed to the creation of new interchange connections between Route 66 and Victoria Boulevard in the vicinity of the Garden State Parkway. The New Jersey Department of Transportation agreed to provide some funds for the project, which included widening Route 66, adding acceleration lanes for Route 66, realigning entrancing ramps from Route 66 to the Garden State Parkway, and constructing an overpass for Victoria Boulevard over Route 66. Under the agreements, Tinton Falls was responsible for securing, among other things, the necessary permits from the DEP, which had jurisdiction under its stream encroachment rules and freshwater wetland rules.

In late December 2002, Tinton Falls applied to DEP for a stream encroachment permit and freshwater wetland permits. Problems arose and delays occurred in the DEP proceedings, primarily, according to the DEP, as a result of the manner in which the consultant employed by Tinton Falls handled the applications.

On December 23, 2003, DEP declared that the applications were ready for formal review. At that time, DEP was formally considering amendment of the stormwater management rules. In January 2004, DEP staff determined that the stream encroachment application submitted by Tinton Falls met the existing stream encroachment and stormwater rules and recommended approval. On February 2, 2004, the new stormwater management rules became effective. 36 N.J.R. 670 (2004).

For technical reasons, which have nothing to do with the merits of the case, DEP did not give final approval for the stream encroachment application by February 2, 2004, although it could have done so under its rules. As a result, DEP told Tinton Falls that its application did not meet the new rules and advised that it apply for a waiver. Subsequently, DEP approved the freshwater wetland applications, but denied the waiver. Asserting that the new stormwater rules would cause "extreme hardship on a public agency that is striving to solve a public traffic issue," Tinton Falls requested an administrative hearing to contest the denial of its stream encroachment application.

On November 3, 2004, the DEP and Tinton Falls settled the dispute so that the project could proceed, and DEP published notice of the settlement. No one objected during the comment period, and the settlement was finalized. More than a month after the public comment period, Shark River filed a notice of appeal with this court and sought a stay. On June 27, 2005, we denied the stay. On July 28, 2005, Shark River moved to supplement the record with documents showing that the project included access to a proposed outlet mall to be located at the intersection of the Garden State Parkway and Route 66. The DEP cross-moved to supplement the record with a certification by Mark Mauriello, a DEP official. We granted both motions, and temporarily remanded the case to the DEP while retaining jurisdiction. Subsequently, we permitted CPG Tinton Falls Urban Renewal LLC to intervene because it was the redeveloper for the roadway project and for portions of the proposed outlet mall.

Mauriello's certification included this statement:

17. In my opinion, the road widening project approved by the Department will not result in any irreparable harm to the unnamed tributary to the Shark River, or to the Shark River, because the settlement contains sufficient safeguards to protect the River's water quality.

The DEP received no evidence contrary to Mauriello's certification.

The Commissioner issued a supplemental decision re-approving the settlement. Shark River argues that the settlement was improper because the project violated the new stormwater rules and was unsupported by any equitable considerations.

After carefully considering the record and briefs, we are satisfied that the Commissioner's decision is supported by sufficient credible evidence in the record as a whole, and that all of Shark River's arguments are without sufficient merit to warrant discussion in a written opinion. R. 211-3(e)(1)(D) and (E). Nevertheless, we add the following comments.

Administrative agencies may reconsider their actions, taking equitable factors in account. Mutschler v. N.J. Dept. of Envtl. Prot., 337 N.J. Super. 1, 14 (App. Div. 2001). Furthermore, absent compelling circumstances, our courts uphold settlements. Ocean County Chapter, Inc. of the Izaak Walton League of Am. v. N.J. Dept. of Envtl. Prot., 303 N.J. Super.

1, 10 (App. Div. 1997). When reviewing an agency's action, the question is not what we might have decided in the agency's place, but whether the result reached by the agency must be set aside because it is arbitrary, unreasonable or capricious. In re Pinelands Comm'n Resolution PC4-00-89, 356 N.J. Super. 363, 372 (App. Div. 2003).

As the Commissioner noted in his supplemental decision, the DEP could have handled the applications separately. Had it done so, the encroachment permit would have been issued before the new rules came into effect. Given that fact, and the other circumstances described above and discussed in detail in the Commissioner's decision, we cannot say that the Commissioner's action approving the settlement was arbitrary, unreasonable or capricious. Therefore, we are obliged to affirm.

Affirmed.

 

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A-2080-04T2

June 19, 2006