RONALD LAROY v. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0447-07T30447-07T3

RONALD and RITA LAROY,

and DENNIS TROMBITAS,

Petitioners-Appellants,

v.

NEW JERSEY DEPARTMENT OF

ENVIRONMENTAL PROTECTION,

Respondent-Respondent.

__________________________________

 

Argued November 19, 2008 - Decided:

Before Judges Rodr guez, Waugh and Newman.

On appeal from the Final Decision of the Commissioner, New Jersey Department of Environmental Protection.

James P. Rhatican argued the cause for appellants (Connell Foley, L.L.P., attorneys; Mr. Rhatican, of counsel and on the briefs; Christine I. Gannon, on the briefs).

Lewin J. Weyl, Deputy Attorney General, argued the cause for respondent (Anne Milgram, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Weyl, on the brief).

PER CURIAM

Petitioners Ronald and Rita LaRoy and Dennis Trombitas appeal from that portion of the final administrative order of the Commissioner of the New Jersey Department of Environmental Protection (DEP) denying their challenge to conditional general permits issued by the agency. We agree with petitioners' legal arguments on appeal only to the extent that the governing regulations do not permit DEP to require the owners of adjacent properties to agree amongst themselves on the creation of a transitional area averaging plan (TAAP). However, we disagree with petitioners to the extent they contend that they could not, through a voluntary agreement among themselves, propose a TAAP to take advantage of the conditional general permits issued by DEP and facilitate the overall use of their property. Because we believe that the latter was the intention of DEP, we affirm the decision on appeal, as interpreted.

I

On August 14, 1973, the LaRoys and Trombitas purchased alternating lots on Valley View Drive in Rockaway Township from a single prior owner. Ronald LaRoy and Trombitas are half-brothers. The LaRoys took title to Lots 50, 52, 54, 56, and 63; Trombitas took title to Lots 49, 51, 53, 55, and 64. Each lot is assessed separately by the Township for municipal taxes. Ronald LaRoy, who paid for the purchase of all of the lots, pays all of the property taxes on both his and Trombitas's lots. Other expenses are paid separately by the parties.

In March 1996, in a different proceeding, petitioners, acting jointly, filed a complaint alleging a regulatory taking of the ten lots they collectively owned due to the constraints imposed by the Freshwater Protections Act (FWPA), N.J.S.A. 13:9B-1 to -30. The FWPA is the State's comprehensive wetlands protection strategy. It creates three different types of regulated natural resources: (1) freshwater wetlands; (2) transition areas; and (3) inland open waters. The FWPA regulates certain activities within these natural resources such as dredging, filling, soil removal, and construction.

N.J.S.A. 13:9B-23(c) allows DEP to issue general permits on a statewide or regional basis for certain regulated activities if the activities will have "only minor impacts on freshwater wetlands." N.J.S.A. 13:9B-23(d) allows DEP, when issuing general permits, to impose specific conditions on the permits. If an applicant is ineligible for a general permit, the applicant can request an individual wetlands permit. N.J.S.A. 13:9B-9. Finally, an applicant can request certain transition area waivers, including individual hardship waivers and individual special-activity waivers. N.J.S.A. 13:9B-18.

In November 1996, during the pendency of the takings litigation, the petitioners filed a joint application for FWPA general permits for four of their lots - Lots 49 and 55 owned by Trombitas, and Lots 50 and 56 owned by the LaRoys. In December 1999, DEP granted plaintiffs conditional State Wide General Permits No. 10 (general permits) for three of those lots - Lots 49, 50, and 55, which are the ones involved in this appeal. The general permits were conditioned on petitioners submitting a TAAP, N.J.S.A. 13:9B-18(b), which allows landowners to reduce the transition area in one location if they correspondingly increase the transition area in another location. See N.J.A.C. 7:7A-6.2(a). The general permits also required that petitioners file for a Stream Encroachment Permit (encroachment permit) for each lot. The general permit application for the fourth parcel, Lot 56, was denied.

Petitioners did not appeal the imposition of the conditions on the general permits or the denial of the general permit for the fourth lot. Instead, they continued to pursue their takings claim with respect to all of the lots.

In August 2000, DEP moved to dismiss the regulatory takings litigation, arguing that the takings claim was not ripe because petitioners had not exhausted their administrative remedies. Petitioners filed a cross-motion for summary judgment. On October 5, 2001, the motion judge granted DEP's motion to dismiss, finding that petitioners' taking claim was not yet ripe.

Petitioners appealed the dismissal and we affirmed. LaRoy v. Twp. of Rockaway, No. A-1477-01T2 (App. Div. Mar. 7, 2003) (LaRoy I). In determining that petitioners had not exhausted their administrative remedies, we observed:

Plaintiffs received general permits for lots 49, 50, and 55, but their application for a general permit for lot 56 was denied. Plaintiffs never appealed from the denial of the lot 56 permit, nor did they seek an individual permit for that lot, as suggested by DEP. Similarly, plaintiffs never filed for individual permits for lots 49, 50, and 55, nor did they appeal from the conditions imposed on the general permits issued for those lots, including the condition that a transition area averaging plan be submitted regarding several of the lots. Finally, plaintiffs never filed for any type of wetlands permit for lots 51, 52, 53, 63, and 64.

[Id. at *19.]

On April 7, 2003, petitioners filed a joint administrative appeal concerning the three conditional general permits issued in 1999, arguing that DEP was not empowered to condition the permits on their submission of a TAAP. They also appealed the denial of the general permit for Lot 56 and raised allegations of inaction by DEP with respect to other applications. In September 2003, DEP transferred the case to the Office of Administrative Law as a contested case. Hearings on the matter were conducted on October 5 and 6, 2006.

The administrative law judge (ALJ) issued her initial decision on June 22, 2007. The ALJ concluded that "petitioners did not prove, by a preponderance of the credible evidence, their claims . . . regarding permit conditions requiring the filing of TAAPs for Lots 49, 50 and 55; that respondent improperly denied an [individual wetlands permit] for Lot 56; and that respondent failed to review and render decisions on [transition area waiver] applications for Lots 50, 51, 53, and 55." The Commissioner adopted the initial decision, with minor modifications, as the final administrative decision on August 3, 2007.

Petitioners appeal only that portion of DEP's final administrative decision that concerns the TAAP-related conditions for Lots 49, 50, and 55.

II

Our role in reviewing the decision of an administrative agency is limited. In re Taylor, 158 N.J. 644, 656 (1999); Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We will not upset the determination of an administrative agency absent a showing that it was arbitrary, capricious, or unreasonable; that it lacked fair support in the evidence; or that it violated legislative policies. In re Musick, 143 N.J. 206, 216 (1996); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). Further, decisions of administrative agencies carry with them a presumption of reasonableness. City of Newark v. Natural Res. Council, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980). We may not vacate an agency's determination because of doubts as to its wisdom or because the record may support more than one result. De Vitis v. N.J. Racing Comm'n, 202 N.J. Super. 484, 489-90 (App. Div.), certif. denied, 102 N.J. 337 (1985).

Petitioners contend that the condition imposed on the general permits by DEP, the submission and approval of a TAAP, is not legally permitted and should be eliminated, allowing them to utilize the general permits without that condition. They argue that, because there are multiple lots and they exercise no "control" over each other's lots, DEP cannot legally treat all nine lots as one "site" for the purposes of a TAAP pursuant to N.J.S.A. 13:9B-18.

N.J.S.A. 13:9B-18(b) permits DEP to grant transition area waivers that allow an applicant to reduce or eliminate portions of one section of an overall transition area to facilitate building or some other use of the area, if the applicant submits a TAAP that "expands [another] portion of the transition area to compensate, on a square footage basis." The applicant has "the right to determine the area of transition area reduction or partial elimination; provided that the transition area averaging plan will result in a transition area consistent with the provisions of [N.J.S.A. 13:9B-16(a)]." Ibid.

The implementing regulation, N.J.A.C. 7:7A-6.2(e), sets forth more detailed requirements for the TAAP. Those requirements concern the nature, location, and ownership of the transition area at issue and provide, in pertinent part, as follows:

If an applicant proposes to expand a transition area to compensate for a reduction elsewhere, the expanded portion of the transition area shall:

 
1. Be an extension of the same transition area that is being reduced, located adjacent to the same freshwater wetlands as the reduced transition area;

2. Be located on the same site, as defined at N.J.A.C. 7:7A-1.4, as the reduction;
 
3. Be owned in fee simple by the applicant, unless the applicant demonstrates sufficient legal authority over the site to carry out all requirements of this chapter. For example, the expanded portion of the transition area shall not be subject to a utility easement or other encumbrance; and
 
4. Have the same ecological characteristics as the reduced portion of the transition area, including the vegetation types, or have characteristics that are equivalent or better as regards the transition area's ability to serve the functions listed at N.J.A.C. 7:7A-2.5. For example, if a forested portion of the transition area is reduced, the expanded portion of the transition area must also be forested.

[Ibid.]

Petitioners argue that, because they do not own the lots jointly or have effective control over each other's property, the requirements of subsections (e)(2) and (e)(3) cannot be satisfied at anytime. We disagree.

The ALJ determined as a matter of fact that all of the lots owned by the petitioners "are within the 'same wetlands system.'" When the petitioners acquired the lots in 1973, they were all contiguous and were divided between the LaRoys and Trombitas on an alternating basis. Those findings are supported in the record. Consequently, we are satisfied that the requirements of N.J.A.C. 7:7A-6.2(e)(1) can be satisfied.

Petitioners challenge DEP's determination that the requirements of N.J.A.C. 7:7A-6.2(e)(2) can be satisfied, arguing that the various lots owned separately by them are not on the "same site," as required by subsection (e)(2). "Site," as used in subsection (e)(2), is defined in N.J.A.C. 7:7A-1.4 (emphasis added) as "the area within the legal boundary of the property(ies) . . . upon which a regulated activity is proposed, is occurring, or has occurred, plus any contiguous land owned or controlled by the same person(s)." In addition, petitioners argue that subsection (e)(3) also requires single ownership. N.J.A.C. 7:7A-6.2(e)(3) (emphasis added) requires that "the expanded portion of the transition area . . . [b]e owned in fee simple by the applicant, unless the applicant demonstrates sufficient legal authority over the site to carry out all requirements of this chapter."

We conclude that petitioners read the language of the regulations too narrowly. While it is true (1) that the various lots involved are not jointly owned by all petitioners and (2) that petitioners do not now "control" each other's separately owned property, we are satisfied that petitioners could voluntarily enter into an agreement for joint control that would enable them to submit a joint TAAP to DEP for the purposes of complying with the general permits and that, assuming the TAAP is otherwise compliant with the statutory and regulatory requirements, DEP could lawfully approve the proposed TAAP as being compliant with the requirements of N.J.A.C. 7:7A-6.2(e)(1) to -(e)(3). That is, in our view, a fair reading of the requirements of the applicable regulation and not at all inconsistent with the provisions of the governing statute, N.J.S.A. 13:9B-18(e). As the Supreme Court held in In re Freshwater Wetlands Protection Act Rules, 180 N.J. 478, 488-89 (2004), "we must give great deference to an agency's interpretation and implementation of its rules enforcing the statutes for which it is responsible."

If petitioners choose not to submit a TAAP through their voluntary action, DEP cannot force them to do so. However, we do not understand DEP to take the position that it can do so. Nevertheless, the conditions are not invalid or ultra vires and we decline to remove them so as to make the general permits unconditional except for the encroachment permit requirement. DEP is authorized to "rescind a general permit and require an application for an individual permit if the commissioner finds that additional permit conditions would not be sufficient and that special circumstances make this action necessary to insure compliance with [the FWPA] or the Federal Act." N.J.S.A. 13:19B-23(d).

DEP has offered petitioners, who are related and have proceeded jointly in litigation and administrative proceedings involving all of the lots purchased in 1973, an approach to a resolution of their FWPA-related land use problems. While DEP cannot force them to utilize that approach, it is not improper for DEP to propose it or to condition a general permit on its use.

To the extent petitioners argue that to apply for a TAAP, a transition area waiver, an individual wetlands permit, or other waiver or permit would be an exercise in futility, we have held that improbability of success does not extinguish the requirement that petitioners navigate the process completely. OFP, L.L.C. v. State, 395 N.J. Super. 571, 582 (App. Div. 2007), aff'd o.b., ___ N.J. ___,____ (2008).

III

In conclusion, we affirm DEP's final agency decision upholding the TAAP requirement of the general permits issued for Lots 49, 50, and 55, as interpreted by us in this opinion.

Affirmed.

 

A more comprehensive history of the case is available in our decision at LaRoy v. Township of Rockaway, No. A-1477-01T2 (App. Div. Mar. 7, 2003) (affirming the dismissal of petitioners' regulatory takings claims).

Lot 54 was developed and sold to a private party in 2001.

In the context of a takings claim, the United States Supreme Court has held that, when a regulatory scheme "offers the possibility of a variance from its facial requirements, a landowner must go beyond submitting a plan for development and actually seek such a variance to ripen his claim." Suitum v. Tahoe Reg'l Planning Agency, 520 U.S. 725, 736-37, 117 S. Ct. 1659, 1666, 137 L. Ed. 2d 980, 992 (1997). We reached the same result in OFP, L.L.C. v. State, 395 N.J. Super. 571 (App. Div. 2007), aff'd o.b., ___ N.J. ___ (2008).

Petitioners do not challenge the requirement that they file for an encroachment permit.

To the extent the ALJ found that there was currently sufficient "control" by the petitioners over each other's property, we do not discern sufficient support in the record for that conclusion.

We need not decide now how such a refusal by petitioners would affect any future claim of taking.

"Federal Act" is defined in N.J.S.A. 13:9B-3 as "section 404 of the 'Federal Water Pollution Control Act Amendments of 1972' as amended by the 'Clean Water Act of 1977' (33 U.S.C. 1344) and the regulations adopted pursuant thereto."

We note that petitioners have other administrative remedies with respect to the lots, as outlined in our opinion in LaRoy I, that they have not yet pursued.

(continued)

(continued)

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A-0447-07T3

January 28, 2009