BUENA REGIONAL SCHOOL DISTRICT v. NEW JERSEY PINELANDS COMMISSION

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5956-04T25956-04T2

BUENA REGIONAL SCHOOL DISTRICT,

Appellant,

v.

NEW JERSEY PINELANDS COMMISSION,

Respondent.

_________________________________

 

Argued: May 31, 2006 - Decided July 21, 2006

Before Judges Skillman, Axelrad and Sabatino.

On appeal from the New Jersey Pinelands Commission, 84-1157.05.

Michael D. Capizola argued the cause for appellant (Capizola, Fineman & Lapham, attorneys; Mr. Capizola, on the brief).

Lewin J. Weyl, Deputy Attorney General, argued the cause for respondent (Zulima V. Farber, Attorney General, attorney; Michael J. Haas, Assistant Attorney General, of counsel; Mr. Weyl, on the brief).

PER CURIAM

This is an appeal by a school district from a final agency decision of the New Jersey Pinelands Commission conditionally approving the construction of a new middle school but prohibiting the issuance of a construction permit until the municipal utilities authority treatment plant, to which appellant proposed to connect, eliminated its direct discharge of treated effluent into the Deep Run River, or an agreement was reached to eliminate the discharge. We affirm.

I

Most of the essential facts in this matter are not disputed. Appellant, the Buena Regional School District ("the District") is a regional school district in Atlantic County serving kindergarten through twelfth grade. The District is comprised of the Borough of Buena and Buena Vista Township, and it also receives students from Weymouth Township and Estell Manor. These four municipalities are Pinelands communities. The District also receives students from the Borough of Newfield in Gloucester County, a non-Pinelands community.

The District is classified as DFG-A, which is the lowest economic rating for a school district in the State of New Jersey. Two of the existing elementary schools within the school district are obsolete or substandard. Additionally, the Dr. J.P. Cleary Middle School is overcrowded and obsolete. In order to remedy these deficiencies, the District planned to construct a 104,696 square foot middle school together with athletic fields, car and bus parking spaces, a sanitary sewer pump station and other utility improvements. The District then planned to renovate the Cleary Middle School and convert it into an elementary school and close the two substandard elementary schools.

On June 13, 2002, the District notified the Pinelands Commission of its intention to construct a new middle school on 77.82 acres on Block 3701, lots 7 and 8 in Buena Vista Township, which is in a Pinelands Rural Development Area. The site currently contains the Buena Regional High School, which has been served by the public sewer system since the high school was constructed in 1973. The sewer system is operated by the Borough of Buena Municipal Utilities Authority ("MUA"). Following a site inspection by the Commission, the District acquired Lot 5, containing an additional 209 acres, in order to meet the Commission's nitrate dilution standard.

The District then filed a public development application with the Commission on December 1, 2003. Rather than construct an on-site septic system, the District sought to connect to the public sewer system by way of the sewer main that currently serves the high school. The District anticipated this connection would be less costly and less time-consuming than the construction of an on-site septic system based on the expectation that the engineering studies and design of the septic system could cost about one million dollars and the process of design and approval of the septic system by the Department of Environmental Protection (DEP) would take two years. The District proposed to install 105 linear feet of six-foot PVC gravity sewer to an on-site pumping station, which would pump the generated waste off-site to the existing public sewer system. In order to connect to the existing sewer system, the District also proposed to install 1,780 linear feet of three-foot PVC force main to a force main discharge manhole, which would tie into the existing sewer collection system.

Prior to and during the application process, Commission staff members met with appellant's representatives to discuss the requirements of the Pinelands Comprehensive Management Plan, N.J.A.C. 7:50-1.1 to -10.30 ("CMP"), applicable to the proposed development. The Commission staff also informed appellant that the MUA was discharging treated effluent into the Deep Run, a tributary to the Great Egg Harbor River, contrary to the CMP and in violation of an agreement it had made with the Commission in 1990. The Commission had approved the upgrade of the MUA's treatment plant to increase the capacity of the plant and to address the treatment plant's failure to treat waste water adequately and ensure that its effluent met the minimum standards. The l990 upgrade approval was specifically conditioned on the elimination of the wastewater discharge to Deep Run no later than June l, l995, which did not occur. The Commission's major concern was that operation of the proposed middle school project would result in a significant added discharge to Deep Run.

By letter of May 5, 2004, the Commission informed the District of its objection to an expanded direct discharge of effluent to Deep Run, noting that the proposal was inconsistent with several provisions of the CMP. More particularly,

[w]ith regard to centralized waste water treatment and collection facilities (i.e. sewer service), N.J.A.C. 7:50-5.26(b)10 expressly provides that such facilities are only permitted in a Rural Development Area in accordance with the requirements of N.J.A.C. 7:50-6.84(a)(2) . . . . In sum, N.J.A.C. 7:50-6.84(a)2 only authorizes, subject to certain conditions, new sewer systems to be constructed within a Rural Development Area to address public health concerns raised by the failure of more than one existing on-site septic systems. This provision does not authorize the installation of centralized waste water collection facilities to permit new development or the expansion of existing development. Consequently, this provision would not authorize the construction of a sewer extension to service the proposed Middle School as proposed by the Buena Regional School District.

Moreover, even if this provision would permit the construction of new development or the expansion of existing development in the regulated zone, the staff advised the District that N.J.A.C. 7:50-6.84(a)2i prohibits new direct discharge into any surface water body.

The Commission recognized the District's imminent need to construct the proposed middle school and its preference to utilize a centralized wastewater collection facility rather than an on-site wastewater treatment system. The Commission suggested the District pursue the option of an intergovernmental agreement with the Commission pursuant to N.J.A.C. 7:50-4.52(c)2, under which development could occur that did not fully comply with the CMP, provided there was an "equivalent level of protection" of the Pinelands resources as provided through the CMP. The District did not seek such waiver of strict compliance from the CMP regulations, in large part because the Commission required a tri-partite agreement with participation by the MUA. Apparently, the Commission and the MUA could not agree on the terms of an agreement, and the Commission refused the District's request to enter into a two-party agreement without the MUA.

Nor did the District apply for an extraordinary hardship waiver from the provisions of the CMP based on "compelling public need" pursuant to N.J.A.C. 7:50-4.61.

On June 21, 2004, the Commission's Director of Regulatory Programs issued an initial report, in which it projected that the middle school would result in a 16,425 gallon per day increase in wastewater flow to the treatment plant. It concluded that because of the projected increase to wastewater flow to the treatment plant and the corresponding significant increase in discharge to Deep Run, "the proposed development will only maintain consistency with the minimum water quality standards of the State of New Jersey if the Buena Borough treatment plant's stream discharge is eliminated." The Director recommended approval of the District's application subject to the condition that no construction permit be issued until the MUA eliminated its discharge to the Deep Run, or until the MUA entered into an agreement with the Commission to resolve the violation. On July 8, 2004, the District appealed this condition to the Commission and requested accelerated proceedings.

The contested case proceeded before Administrative Law Judge Martone on stipulated facts. The ALJ considered the certification of the District Superintendent, which referred to the schools affected by the new construction, their student populations and the effect on the MUA, and the fact that the MUA has been accepting new connections by other users subsequent to the l990 agreement. The District argued that since the Clearly Middle School was already served by the MUA, initially there would be no change in the effluent sent to the MUA by the proposed new school. It was only when Cleary became a new elementary school, which is a future project not yet designed or approved by the Department of Education, that the student population served by the MUA would increase by 209.

The District also noted that the State of New Jersey approved funding for the proposed new school under the Educational Facilities Construction and Financing Act, N.J.S.A. 18A:76-1 to -44, the Department of Education approved the general design and location of the school and the District planned on conducting a voter referendum for the construction of the school in September 2004. The District further informed the ALJ that as a result of the condition on the issuance of its construction permit, the Department of Education would not permit it to continue with the project or to submit the referendum necessary for funding the project to the voters. The District also expressed a concern of a loss of its State funding opportunity, without which it would be unable to construct the school.

II

On May 9, 2005, ALJ Martone issued an initial decision affirming the Commission's conditional approval of appellant's public development application as complying with the CMP regulations governing institutional and infrastructure development in the Rural Development Areas of the Pinelands Protection Area pursuant to N.J.A.C. 7:50-5.26 (minimum standards governing the distribution and intensity of land use in Rural Development Areas). He rejected the District's argument that the proposed sewer connection was encompassed within the new middle school's institutional use pursuant to N.J.A.C. 7:50-5.26(b)11, or, at most, was an accessory use pursuant to N.J.A.C. 7:50-5.26(b)(14), and under either circumstance was a permitted use not subject to any Pinelands restrictions. The ALJ found that the proposed project included both the permitted institutional use of a school and the permitted accessory use of a public service infrastructure, and more specifically, a "collection facility" under N.J.A.C. 7:50-26(b)10 (permitting public service infrastructure in rural development areas except that centralized waste water treatment and collection facilities shall be permitted to service the area only in accordance with N.J.A.C. 7:50-6.84(a)2). Therefore, he found the extension of the existing sewer line must comply with the requirements of N.J.A.C. 7:50-6.84(a)2, which limits new wastewater treatment or collection facilities to those which address public health problems and serve only existing development, and (a)2i, which specifically prohibits new waste water treatment or collection facilities, i.e. sewers, where there is a direct discharge into any surface water body.

The administrative law judge addressed the District's assertion that it was "being used as a pawn in a continuing dispute" between the Commission and the MUA and its claim that it was improper for it to be used "as the enforcement tool against the MUA" concerning discharge by the MUA. He considered the District's argument that since the Commission has been in negotiations with the MUA for over a decade and has not imposed a moratorium on the sewer treatment plant or on the connection of new users to the plant, that the plant is in compliance with DEP regulations and is not discharging pollutants, and therefore the Commission could not selectively prohibit the new middle school from also connecting to the MUA treatment plant. Rejecting that argument, the ALJ found the Commission had correctly conditioned its approval on the MUA's remediation of the effluent discharge into the Deep Run based on the agency's obligation to enforce N.J.A.C. 7:50-6.83(a), which requires all development permitted under the CMP to be designated and carried out so that the quality of surface and ground water will be protected and maintained. He stated:

In view of this provision, I fail to see how it would be appropriate for the Commission to ignore the continuing violation by the MUA and to permit the addition of more than 16,000 gallons per day of increased waste water flow into the Deep Run. I agree with the Commission's position that petitioner should not be permitted to reap the illicit benefit of this continuing violation.

The administrative law judge also agreed with the Commission that the proposed project would expand a pre-existing non-conforming use, and the increase of treated effluent into Deep Run would be an impermissible expansion of this non-conforming use in violation of a variety of CMP regulations. See N.J.A.C. 7:50-5.2(a)2 (expressly prohibiting the expansion because it would contravene N.J.A.C. 7:50-6.84); N.J.A.C. 7:50-6.83 (requiring that all development permitted under the CMP shall be designed and carried out so that the quality of surface and ground water will be protected and maintained).

The parties filed exceptions and cross-exceptions to the initial decision. The Commission adopted its final resolution on June 10, 2005, affirming and approving the ALJ's initial decision and approving the conditional development application. Among other items, the Commission found: (1) N.J.A.C. 7:50-5.26(b)10 prohibits the construction of waste water treatment and collection facilities (sanitary sewer) in a Pinelands Rural Development Area; (2) construction of a middle school is a permitted use in the Rural Development Area under N.J.A.C. 7:50-5.26(b)11; and (3) the District's proposed construction of a 1,780 linear foot sanitary sewer extension falls within the definitions of both waste water collection facility and public sewer infrastructure under N.J.A.C. 7:50-5.26(b)10 and is thus subject to the limitations of N.J.A.C. 7:50-6.84(a)2. The Commission further found the MUA continued to violate its l990 agreement to eliminate discharge of effluent to Deep Run by l995 and the proposed development would result in a 16,425 gallon per day increase in direct discharge to Deep Run in further violation of the agreement. Moreover, it found expansion of the existing sewer line to service the middle school would constitute an impermissible expansion of a non-conforming use in contravention of the water quality and other standards of the CMP.

III

The District appeals from the conditional approval of the construction permit. The District challenges the Commission's interpretation of the CMP regulations. More particularly, it argues that since the school is a permitted use, the proposed sewer connection should be considered either part of that use under N.J.A.C. 7:50-5.26(b)11, or an accessory use under N.J.A.C. 7:50-5.26(b)14. The District contests the ALJ and Commission's finding that the proposed sewer connection line is a public service infrastructure or a collection facility under N.J.A.C. 7:50-5.26(b)11, and thus contends the limitations of N.J.A.C. 7:50-6.84(a)2 are inapplicable. Additionally, the District renews the argument it made to the ALJ that it should not be used as a pawn in a dispute between the Commission and MUA, where there is no sewer moratorium on the treatment plant and for over a decade the Commission has not seen fit to enforce its order that "No wastewater shall be discharged in the Deep Run after June l, 1995." The District's concluding argument is that the Commission's conditional approval is arbitrary and capricious when viewed in light of the minor increase in waste water flow and the significant public benefit of the project.

IV

A longstanding interpretation of a statute by a regulatory agency is entitled to great weight. Honachefsky v. N.J. Civil Serv. Comm'n, 174 N.J. Super. 539, 542 (App. Div. 1980). Courts accord substantial deference to the agency's interpretation of a statute it is charged with enforcing, GE Solid State, Inc. v. Director, Division of Taxation, 132 N.J. 298, 306 (1993), provided the rule falls "within the fair contemplation of the delegation of the enabling statute," New Jersey Guild of Hearing Aid Dispensers v. Long, 75 N.J. 544, 561-62 (1978). In Cedar Cove, Inc. v. Stanzione, 122 N.J. 202, 212 (1991) the Court explained: "The meaning ascribed to legislation by the administrative agency responsible for its implementation, including the agency's contemporaneous construction, long usage, and practical interpretation, is persuasive evidence of the Legislature's understanding of its enactment."

In reviewing the final decision of a state administrative agency, we examine the record to determine whether sufficient or substantial credible evidence exists to support the agency decision. Dore v. Bd. of Educ. of Twp. of Bedminster, 185 N.J. Super. 447, 453 (App. Div. 1982) (citing Atkinson v. Parsekian, 37 N.J. 143, 149 (1962)). Our scope of review is limited. We intervene in those rare circumstances in which the agency action is arbitrary, capricious or unreasonable, is clearly inconsistent with its statutory mission or violates legislative policies expressed or implied in the act governing the agency. Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963); see also Williams v. Dep't of Human Servs., 116 N.J. 102, 108 (1989); Baylor v. New Jersey Dep't of Human Servs., 235 N.J. Super. 22, 26 (App. Div. 1989).

The CMP reflects the minimum standards for protection of the Pinelands. Fine v. Galloway Twp. Comm., 190 N.J. Super. 432, 439 (Law Div. l983). We are satisfied the Commission's overall analysis and application of its CMP regulations to the District's middle school project is sound and consistent with its statutory mission to protect the sensitive water quality of the Pinelands region to which it is entrusted under the Pinelands Protection Act. N.J.S.A. 13:18A-2. Accordingly, based on our limited standard of review, there is no reason to second-guess the Commission's interpretation of the Pinelands Rural Development Area regulations.

The ALJ and Commission properly rejected the District's argument that its sewer connection was not subject to any restriction by virtue of wastewater disposal being an inherent element of the middle school, a permitted institutional use in the Pinelands Rural Development Area under N.J.A.C. 7:50-5.26(b)11. That regulation also permits a more specific use that covers the proposed connection to public sewer service. The Pinelands CMP defines "public service infrastructure," a separate category of permitted uses under N.J.A.C. 7:50-5.26(b)10, to include sewer service and similar services provided or maintained by public or private entities. N.J.A.C. 7:50-2.11. Although the ALJ and Commission could have concluded the proposed l,780 linear feet extension of the existing force main sewer line component of the proposed development constituted an "accessory use" as a separate specified principal use under N.J.A.C. 7:50-5.26(b)14, there was clearly a sufficient basis in the record for the alternative determination that it constituted a public service infrastructure. The record also supports its finding that it constitutes a waste water collection facility, i.e. "any part of a system used to carry waste water and includes laterals, mains, trunks, interceptors and other similar facilities." N.J.A.C. 7:50-2.11.

Public service infrastructure is a permitted use in Rural Development Areas subject to the limitations of N.J.A.C. 7:50-6.84(a)2. N.J.A.C. 7:50-5.26(b)10. Accordingly, the District's proposed infrastructure expansion must meet the restrictions imposed under N.J.A.C. 7:50-6.84(a)2, which, among other items, prohibit the direct discharge of an increased 16,425 daily gallons of effluent to surface water such as Deep Run.

Having found no basis upon which to disturb the Commission's interpretation of its CMP regulations as they pertain to the District's development application, we turn now to the condition imposed by the agency. We understand the District's frustration with the overall process and its feeling that it is being used by the Commission as leverage to obtain compliance by the MUA with an order to cease discharge of effluent into the Deep Run surface water body that the Commission has not sought to enforce in over a decade. It is also unfortunate that the District was caught between the proverbial "rock and a hard place" at the May 6 and May 20, 2004 meetings when the Commission staff insisted that any Memorandum be a tri-partite agreement with the MUA participating and the two agencies could not agree on the terms.

We are not unmindful that the District, which has proceeded in good faith to improve the education of its students by seeking to replace substandard and obsolete physical school facilities -- having obtained approval from the Department of Education for the general design and location of the middle school in 2002, attended numerous pre- and post-application meetings with Commission staff and offered to participate in a tri-partite agreement, purchased additional land at the Commission's direction, secured State and local funding, and planned to commence construction in May 2006 -- has virtually no control over satisfaction of the condition of its development approval.

That being said, however, as the ALJ noted, based on the CMP mandate of requiring all development in the Pinelands to be carried out so that the quality of surface and ground water will be protected and maintained, we are constrained to conclude that the condition the Commission imposed on the District's development application is reasonable and advances the mandate and purposes of the Pinelands Protection Act. The CMP does not permit discharge into a surface water body except in very limited circumstances. Even when the CMP does permit continued discharge, the discharge must continue at the existing rate and no additional capacity is permitted.

The Pinelands conditional approval meets the CMP and is supported by substantial credible evidence in the record. It complies with the CMP regulations for Rural Development Areas, N.J.A.C. 7:50-5.26(b)10, and the regulatory limitations on expanded sewer service and direct discharges of effluent to the Deep Run, N.J.A.C. 7:50-5.26-(b)10 and N.J.A.C. 7:50-6.84(a)2. Both the ALJ and the Commission determined that the District's proposal would add a direct discharge of effluent to the Deep Run, specifically referencing "the addition of more than 16,000 gallons per day of increased waste water flow into the Deep Run."

Although the District contended that when the students moved from the Cleary Middle School, which is connected to the MUA sewer treatment plant, to the new middle school, there would be no net change in the flow to the treatment plant, it acknowledged that when the Cleary school is reoccupied by elementary students there will be additional flow to the treatment plant. The District claimed, however, it would be de minimis and of little consequence to the operation of the treatment plant. We have rejected appeals from substantive application of environmental standards based on claims of minute adverse effect on Pineland resources, stating that "[i]f exemptions should be granted because development on individual tracts would impair only minutely the entire resources of the Pinelands, the cumulative effect of such exemptions would defeat the legislative goals of the Pinelands Protections Act." Orleans Builders & Developers v. Byrne, 186 N.J. Super. 432, 444 (App. Div. 1982). The reality is that the CMP does not permit any new discharge to the Deep Run and by connecting into the public sewer system, the District would discharge into the system and thus discharge into the Deep Run. Under these circumstances, rather than being considered arbitrary, the Commission might be considered remiss in not imposing the condition on the District's development application for the construction of its middle school.

That does not mean that the District is left without a remedy. The District had the option from the outset to construct the project with an on-site septic system. Furthermore, at oral argument we were advised that the MUA has been in negotiations with the Commission for two years in an attempt to reach a memorandum of agreement to remove its discharge from the Deep Run and discharge its treated wastewater onto a permeable land surface, and that the MUA has recently entered into a contract to purchase a tract of land for this purpose. Perhaps a tri-partite agreement can now be reached so that the condition of the District's approval can be removed, and the necessary new school can be built.

Most critically, and that which we do not quite understand, is why the District has not filed an application with the Commission for a waiver of strict compliance from the CMP based on "compelling public need" in accordance with N.J.A.C. 7:50-4.64. Specifically, applicant must establish that the middle school will serve an essential need of applicant's district and county. N.J.A.C. 7:50-4.64(a). Additionally, the public health and safety must require the requested waiver, the public benefits from the use must override the importance of protecting the Pinelands, the use must be required to serve the needs of the residents of the Pinelands, and there must be no feasible alternatives outside of the Pinelands to meet the need. N.J.A.C. 4:64(a)1i-iv. Following a ten-day comment period by members of the public, N.J.A.C. 7:50-4.66, a public hearing is scheduled, N.J.A.C. 7:50-4.66(i), after which the Commission is required to make a determination within ninety days, N.J.A.C. 7:50-4.67. We would suggest the District promptly file such application with the Commission, although we make no determination as to the merits of such application.

Affirmed.

 

The CMP was promulgated in 1981 to advance the goals of the Pinelands Protection Act, N.J.S.A. 13:18A-1 to -58, which sets as a priority the protection of the existing high quality of surface and ground water in the Pinelands. One of the specific goals of the CMP is the regulation of land and water resources, and the protection of water by the implementation of water management techniques, N.J.S.A. 13:18A-8(d)(1)&(2). This includes prohibitions and restrictions on development in the Pinelands Rural Development Area, particularly as it affects the water quality. The existing Buena high school and its public sanitary service was constructed prior to the enactment of the CMP.

The record just contains an undisputed, non-specific allegation of "other" connections. At argument, counsel for the District indicated he believed the new connections were for single family homes.

We were advised at oral argument that the voters have approved the bonds, the bonds have been issued, the State has committed funds to the project and the District has put money on deposit with the State. In addition, the plans have been drawn, with construction to have commenced in May 2006, subject to removal of the condition and issuance of the permits.

In its brief the District claimed the Commission had advised it that waivers were not available for public entities. It is possible the District misunderstood the comment, as there is nothing in N.J.A.C. 7:50-4.64 that restricts such application, and neither the Commission nor the applicant cites to any regulation that would bar such an application. Moreover, the Commission reminded the District of its right to make such an application, as set forth in the November l8, 2004 supporting affidavit by its Director of Land Use submitted to the ALJ. The ALJ noted there were factual disputes concerning a possible waiver of strict compliance with the requirements of the CMP but declined to address the issue as it was not before him. At oral argument the District's counsel acknowledged that he found no prohibition in the regulations that would prevent the District from seeking a waiver based on "compelling public need."

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A-5956-04T2

July 21, 2006