HARVEY ROSEFF v. MMK REINSURANCE, LTD.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6209-07T16209-07T1

HARVEY ROSEFF, FRED GILLESPIE,

JOSEPHINE LEE, ADRIAN GONZALEZ,

MERWYN LEE, and LORNA LEE,

Plaintiffs-Appellants,

v.

MMK REINSURANCE, LTD., LEE

KELLOGG, HUDSON FARM, and STATE

OF NEW JERSEY, DEPARTMENT OF

ENVIRONMENTAL PROTECTION, DIVISION

OF FISH AND WILDLIFE, DIVISION

OF WATER QUALITY AND DIVISION OF

WATERSHED MANAGEMENT,

Defendants-Respondents.

___________________________________

 

Argued January 27, 2010 - Decided

Before Judges Cuff and Waugh.

On appeal from Superior Court of New Jersey, Law Division, Sussex County, Docket No. L-295-08.

Harvey Roseff and Adrian Gonzalez, appellants, argued the cause pro se.

John E. Ursin argued the cause for respondents MMK Reinsurance, Ltd., Lee Kellogg, and Hudson Farm (Courter, Kobert & Cohen, attorneys; Mr. Ursin, on the brief).

Lauren J. Trasferini, Deputy Attorney General, argued the cause for respondent New Jersey Department of Environmental Protection (Paula T. Dow, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Trasferini, on the brief).

PER CURIAM

Plaintiffs Harvey Roseff, Fred Gillespie, Josephine Lee, Adrian Gonzalez, Merwyn Lee, and Lorna Lee challenge a final administrative action of the Division of Fish and Wildlife (DFW), part of defendant Department of Environmental Protection (DEP). In 2007, DFW granted defendant Hudson Farm a license to operate a commercial shooting preserve (CSP). Hudson Farm is owned by defendants MMK Reinsurance, Ltd. (MMK) and Lee Kellogg. The license has since been renewed on a yearly basis.

The gist of plaintiffs' challenge is that DFW did not adequately consider the environmental and other harms that would, according to plaintiffs, result from the operation of a CSP in proximity to a residential neighborhood and related recreational facilities. They also challenge the constitutionality, on vagueness grounds, of one of the licensing criteria in the governing statutes, specifically the requirement that "[t]he operation of such shooting preserve shall not conflict with a prior reasonable public interest." N.J.S.A. 23:3-29(d)(1).

Although we uphold the constitutionality of that statute, we have determined that DFW has misinterpreted the statutory language at issue. Consequently, we remand to DFW for reconsideration of its licensing decision.

I.

The following statutory background, facts, and procedural history inform our decision on this appeal.

A.

The holder of a CSP license is allowed "to operate a 'commercial pheasant, mallard, quail and partridge-shooting preserve.'" N.J.S.A. 23:3-29(d). A preserve must contain at least fifty acres, excluding safety zones; and its boundaries must be "clearly defined by posting at intervals of not more than 200 feet with signs to be prescribed by [DFW]." N.J.S.A. 23:3-28(c). Pursuant to N.J.S.A. 23:4-16(d), a "safety zone" is any area within "450 feet of any occupied building" or "any school playground." An "occupied building" is "any building constructed or adapted for overnight accommodation of a person, or for operating a business or engaging in an activity therein, whether or not a person is actually present." Ibid.

Pursuant to N.J.S.A. 23:3-29, DFW "may" issue certain licenses with respect to game birds "when it appears that the application is made in good faith, and is in the public interest." With respect to a CSP license, the following additional requirements apply:

(1) The operation of such shooting preserve shall not conflict with a prior reasonable public interest; and

(2) The applicant shall have produced evidence satisfactory to the division that he will raise or purchase for liberation and liberate on the shooting preserve a total of at least 500 pheasant, mallard, quail and partridge or combination thereof between September 1 of the year for which the license was issued and the following May 1.

[N.J.S.A. 23:3-29(d)(1).]

DFW has never adopted regulations implementing its authority to issue CSP licenses. Nevertheless, certain requirements are contained in its "Commercial Shooting Preserve Information Sheet," which is available on DFW's website. The information sheet includes the statutory requirements set out above, as well as additional, non-statutory requirements informally adopted by the DFW. The latter include a requirement that shooters "use [] steel or other U.S. Wildlife Service approved nontoxic shot," that the applicant disclose any lease agreement for the land, and that two copies of the tax assessor's map for the property accompany the application. The information sheet states that the maps must clearly delineate the CSP's boundaries, buildings on and adjacent to the property, and safety zones. The information sheet also states that "[a] field inspection of the proposed preserve may be conducted prior to receiving [the] permit." Once the CSP license has been granted, the licensee is required to submit annual reports at the end of each hunting season. The report must include daily kill and stocking sheets. There is, however, no statutory or informal requirement that adjacent landowners be given notice of the application or an opportunity to be heard in opposition to it.

The parties have not raised the issue of whether the contents of the information sheet should have been the subject of rulemaking under the Administrative Procedures Act, N.J.S.A. 52:14B-1 to -15. See Metromedia, Inc. v. Dir., Div. of Taxation, 97 N.J. 313, 328-32 (1984). Nevertheless, our review of the contents of the sheet suggests that rulemaking would be appropriate.

B.

Hudson Farm first applied for a CSP license in August 2000, and was granted License No. 202106. Its preserve originally consisted of 620 acres in Hopatcong and Byram Townships. It sought and received annual renewals of that CSP license. According to DFW, it submitted the required annual report each year at the end of the shooting season.

In 2007, Hudson Farm decided to expand its preserve. It submitted an application for a new license, which included a contiguous addition (Area 1) to the original preserve, as well as an additional, but non-contiguous 878 acre area located in Andover and Byram Townships (Area 2). DFW conducted a field inspection of the additional sites on September 16, 2007, and determined that both new parcels complied with the statutory requirements. It issued License No. 272106 on October 2, 2007. The licensed expired on May 1, 2008, but has apparently been renewed on a yearly basis and is still in effect. Consequently, the appeal is not moot.

C.

Plaintiffs, who are owners of land adjacent to Area 2, filed a complaint in the Chancery Division on April 28, 2008. They challenged the grant of CSP License No. 272106 as to Area 2, alleging various harms to the environment and the residents of the adjacent properties, and sought various types of injunctive relief. On May 27, 2008, plaintiffs filed an amendment to their complaint to include information about Forest Lakes, a nearby bird sanctuary that plaintiffs allege will be adversely affected by inclusion of Area 2 in Hudson Farm's CSP.

In May 2008, the suit was transferred to the Law Division, apparently because it was viewed as an action in lieu of prerogative writs. In June 2008, DEP filed a motion to transfer the matter to the Appellate Division pursuant to Rule 2:2-3(a)(2). That motion was granted; and plaintiffs' subsequent motion for reconsideration was denied. In March 2009, plaintiffs moved before us for a remand to the Law Division. We denied that motion on March 25, 2009.

D.

Because the record in this matter is sparse, we set forth some additional information that has come to our attention through additions to the record and at oral argument.

In response to plaintiffs' concerns about the effect that the Area 2 acreage would have on the environment, DFW Director David Chanda wrote to plaintiffs on January 15, 2009, and stated:

As is the case of all new additions to [CSPs], this property was inspected by a conservation officer and found to be appropriate for this activity. The officer determined that the farm added to the preserve was large enough to allow hunting activity associated with a commercial preserve to safely occur on this property. Since there is a long history of hunting on this property, and the commercial preserve activities take place in the interior portion of this very large land holding, the [DFW] has concluded that this activity will not interfere with prior reasonable public interest. . . .

You also mention a concern for lead contamination. . . . Our toxicologist has indicated that based upon his experience, prior studies related to this matter and the geology of this region, lead shot deposited will not become soluble and enter the aquifer.[]

Finally, based upon our long history of regulating the release of stocked birds, I can assure you that there will be no negative impact on the local flora and fauna.

In a letter dated September 1, 2009, Larry Herrighty, Assistant Director of Operations at DFW, responded to an inquiry from plaintiffs about DFW's interpretation of the phrase "prior reasonable public interest" in N.J.S.A. 23:2-29. He wrote: "[DFW] has always interpreted this in the context of whether or not issuing such a license would impede on the safety of surrounding properties and has used N.J.S.A. 23:4-16 to determine this issue." Herrighty went on to explain how DFW assures that a CSP complies with that requirement:

As part of the application review, the conservation officer assigned to patrol the area in question is provided with a copy of the application and a map which indicates houses on and adjacent to the property to be licensed. The officer conducts a site visit to determine whether the land is sufficient to meet the minimum acreage requirement for a [CSP] when safety zones, as defined in N.J.S.A. 23:4-16, are taken into account. If there are any other safety issues that the officer notes, he or she will bring these to the attention of the license section for further review.

Herrighty stated that, with respect to the Hudson Farm application, "the conservation officer indicated that the property met the criteria as described above."

We were informed at oral argument that whether a preserve can actually be used for commercial purposes, i.e., charging for its use, is an issue governed by local zoning law. Consequently, we understand that the original preserve and Area 1 are lawfully operated as a commercial venture, which use is allowed by the applicable zoning ordinances. Because the zoning ordinances applicable in Area 2 do not permit commercial uses, that area of the preserve cannot be operated as a commercial venture. We are further informed that Area 2 of the preserve is used personally by Kellogg; and that he and MMK use it to entertain personal and business guests.

We note that plaintiffs' appendix contains additional documents that were neither issued by DFW nor part of the record with respect to that agency's consideration of Hudson Farm's application for the CSP license. Appellate courts will "not ordinarily consider evidentiary material that is not in the record below." Liberty Surplus Ins. Corp., Inc. v. Nowell Amoroso, P.A., 189 N.J. 436, 452 (2007). Consequently, we have not considered those documents.

II.

Plaintiffs raise the following issues:

POINT I: N.J.S.A. 23:3-29(d)(1) IS VOID FOR VAGUENESS BECAUSE NO REGULATIONS OBJECTIVELY DEFINE THE STANDARD FOR WHAT CONSTITUTES A CONFLICT OF PRIOR REASONABLE PUBLIC INTEREST AND THEREFORE THE PUBLIC IS NOT BEING CONSISTENTLY, OBJECTIVELY PROTECTED BY ITS INTENT.

POINT II: THE ISSUANCE OF CSP LICENSE #272106 WAS AN ARBITRARY AND CAPRICIOUS ACT.

POINT III: WITHOUT A DETERMINATION OF "NO CONFLICTS OF A PRIOR REASONABLE PUBLIC INTEREST," LICENSE #272106 SHOULD BE RESCINDED.

POINT IV: NJDEP, THROUGH THE CSP LICENSE #272106 UNCONSTRAINED BIRD RELEASE AUTHORIZATION, ESTABLISHES A CONFLICT WITH TRESPASSING LAWS AND DEPRIVES PRIVATE PROPERTY OWNERS FROM THE FULL USE AND ENJOYMENT OF THEIR PROPERTY.

POINT V: THE DIVISION OF WATER QUALITY, AND THE DIVISION OF WATERSHED MANAGEMENT, BOTH OF NJDEP, HAVE NOT EXERCISED THEIR AUTHORITY TO RESPONSIBLY EXECUTE THEIR GOVERNMENTAL ROLE.

POINT VI: DFW HAS A POOR HISTORY OF PROTECTING THE ENVIRONMENT FROM SHOTGUN SHOOTING RANGES AND ITS IRRESPONSIBILITY IN ENFORCING OVERSIGHT ON SHOOTERS REQUIRES DIFFERENT GOVERNMENT AGENCIES AND PERSONNEL TO DEVELOP A PROCESS AND PROCEDURE FOR ISSUING AND RENEWING CSP LICENSES PURSUANT TO N.J.S.A. 23:3-29(d)(1).

POINT VII: ELEMENTARY TO DUE PROCESS IS THE RIGHT FOR PEOPLE TO HAVE A FAIR HEARING BEFORE PROPERTY RIGHTS ARE IMPACTED BY A STATE AGENCY.

POINT VIII: THE APPELLANTS' COMPLAINT HAS NOT BEEN HEARD ON ITS MERITS AND THEREFORE THE APPELLANTS HAVE NO STANDING BEFORE THE APPELLATE COURT WHICH SHOULD RESULT IN THIS ACTION BEING REFERRED BACK TO THE CHANCERY DIVISION.

A.

We start by affirming the transfer of the present action to the Appellate Division, an issue raised in plaintiffs' eighth point. As the Supreme Court held in Infinity Broadcasting Corp. v. New Jersey Meadowlands Commission, 187 N.J. 212, 223 (2006) (quoting Central Railroad Co. v. Neeld, 26 N.J. 172, 184-85, cert. denied, 357 U.S. 928, 78 S. Ct. 1373, 2 L. Ed. 2d 1371 (1958) (internal citations omitted)), "[t]he overarching rule in New Jersey has long been that 'every proceeding to review the action or inaction of a local administrative agency [is] by complaint in the Law Division and that every proceeding to review the action or inaction of a state administrative agency [is] by appeal to the Appellate Division.'" See also Mutschler v. N.J. Dep't of Envtl. Prot., 337 N.J. Super. 1, 9-10 (App. Div.), certif. denied, 168 N.J. 292 (2001).

"The Appellate Division's exclusivity may . . . not be circumvented by instituting either actions in lieu of prerogative writs or declaratory judgment actions or actions otherwise styled in the trial court where the essence of the relief sought is review of quasi-judicial, ministerial or discretionary agency action." Pressler, Current N.J. Court Rules, comment 3.2.1 on R. 2:2-3 (2010). Although there are very limited exceptions to venue in this court, Infinity, supra, 187 N.J. at 225-26, we are satisfied that none of them are applicable here.

B.

We next address the issue of the constitutionality of N.J.S.A. 23:3-29(d)(1). Plaintiffs argue that the phrase "a prior reasonable public interest" is so vague as to be unconstitutional. We disagree.

In Tanurb v. New Jersey Department of Environmental Protection, 363 N.J. Super. 492, 499 (App. Div. 2003) (internal quotations and citations omitted), we held:

A statute is unconstitutionally vague if it is couched in terms so vague that [people] of common intelligence must necessarily guess at its meaning and differ as to its application. The determination of vagueness must be made against the contextual background of the particular law and with a firm understanding of its purpose. The standard to determine vagueness is not mechanically applied and it depends in part upon the nature of the enactment. Furthermore, the level of definitional clarity varies. Penal laws are subjected to sharper scrutiny and given more exacting and critical assessment, while review of economic regulation is less strict because businesses, which face economic demands to plan behavior carefully, can be expected to consult relevant legislation in advance of action.

Courts exercise "'extreme self restraint' before using 'the judicial power to invalidate a legislative act[,]' and we will not declare a legislative act void 'unless its repugnancy to the Constitution is clear beyond a reasonable doubt.'" LaManna v. Proformance Ins. Co., 184 N.J. 214, 223 (2005) (quoting State v. Trump Hotels & Casino, 160 N.J. 505, 526 (1999) (internal quotations omitted)).

When interpreting a statute, our "goal is to interpret the statute consistent with the intent of the Legislature." Oberhand v. Dir., Div. of Taxation, 193 N.J. 558, 568 (2008). Interpretation begins with consideration of the plain language of the statute. Ibid. Each word of the statute should be given its proper effect, and the court "should not assume that the Legislature used meaningless language." Med. Soc'y of N.J. v. N.J. Dep't of Law & Pub. Safety, 120 N.J. 18, 26 (1990). See also Ryan v. Renny, ___ N.J. ___, ___ (2010) (slip op. at 18-19). We avoid interpreting statutes in ways that would "render any part . . . inoperative, superfluous or meaningless[.]" Hoffman v. Hock, 8 N.J. 397, 406 (1952).

Looking at the plain meaning of the language before us, which requires that "[t]he operation of [the] shooting preserve . . . not conflict with a prior reasonable public interest," we conclude that the Legislature wanted DFW to compare the prior use of the property with its proposed use as a shooting preserve to determine whether the change would be inimical to a reasonable public interest served by the prior use. Such a legislative charge must necessarily be expressed in broad language, so as not to narrow the focus of the inquiry. In re Revocation of Access of Block No. 1901, 324 N.J. Super. 322, 332-33 (App. Div.), certif. denied, 162 N.J. 664 (1999). Such breadth is not an offense in a non-penal context. Tanurb, supra, 363 N.J. Super. at 499.

We note that our interpretation differs from that suggested by the State in its brief: "DFW has interpreted prior reasonable public interest as equating to the safety mandate under N.J.S.A. 23:4-16(d)," which is also the interpretation offered in Herrighty's September 1, 2009, letter to plaintiffs. We ordinarily accord considerable deference to an administrative agency's interpretation of its governing statute. In re N.J. Tpk. Auth. v. Am. Fed'n of State, County & Mun. Employees, Council 73, 150 N.J. 331, 351 (1997). Nevertheless, we are "also guided by well-established tenets of statutory construction." In re August 16, 2007 Determination of NJDEP, ___ N.J. Super. ___, ___ (App. Div. 2010) (slip op. at 10-11). Deference is not justified in this case because the agency's interpretation is not supported by the clear language of the statute.

Reading the phrase at issue as an indirect reference to N.J.S.A. 23:4-16(d) renders it "superfluous," Hoffman, supra, 8 N.J. at 406, because compliance with those statutory "safety zone" provisions is specifically required by N.J.S.A. 23:3-28, which contains a direct reference to N.J.S.A. 23:4-16(d). Consequently, there would be no need to refer to them again, and certainly not indirectly as "a prior reasonable public interest."

In addition, DFW's interpretation ignores the word "prior" altogether. A plain reading of the statutory language reveals that the Legislature wanted DFW to compare the prior use of the property with its proposed new use from a public interest point of view. Interestingly, Chanda's January 15, 2009, letter to plaintiffs suggests an interpretation similar to ours. He wrote that, in light of the "long history of hunting on this property" and the fact that "commercial preserve activities take place in the interior portion of this very large land holding, the [DFW] has concluded that this activity will not interfere with prior reasonable public interest."

In the context of a statute for the licensing of commercial shooting preserves, we do not find the challenged phrase, as we have interpreted it, to be unconstitutionally vague. However, it is not clear to us whether DFW applied its interpretation, as articulated in the State's brief and Herrighty's letter, or what we have determined to be the correct interpretation, as retrospectively suggested by Chanda's letter. Consequently, we remand to DFW for reconsideration of its decision. As part of the remand, DFW must clearly articulate its factual basis and reasons for granting the license, discussing each of the relevant statutory factors, so that there will be an adequate record for any further appellate review.

C.

Plaintiffs may, if they wish, seek leave to participate in the remand proceedings pursuant to N.J.A.C. 1:1-16.1(1). Whether they will be allowed to do so, however, depends on whether they can establish that they "will be substantially, specifically and directly affected by the outcome." Ibid. See In re Riverview Dev., LLC, 411 N.J. Super. 409, 423-25 (App. Div. 2010) (discussing the differences between the liberally-applied right to appeal a final agency decision and the significantly-more-limited right to participate in the underlying proceedings). That determination will depend on specific facts related to each plaintiff, rather than the type of general allegations of societal harm contained in the complaint.

D.

Finally, we reject plaintiffs' arguments that DFW or DEP had a duty to consider criteria other than those set forth in the statute, which assertion they have not supported with any case law. The Legislature enacted a fairly narrow licensing law that is addressed primarily to game management issues, as well as the safety of adjacent landowners in the context of the safe use of firearms. It could have established other criteria, such as those urged by plaintiffs, but did not do so.

Our decision does not leave plaintiffs without a remedy. They may petition the Legislature to amend the statute to require public notice to adjacent landowners and to expand the licensing criteria, such as requiring DFW to consult with other divisions in DEP. They may also challenge, in appropriate forums, Hudson Farm's actual use of the property, as opposed to DFW's issuance of the license, on the basis of relevant land use enactments and common law causes of action such as nuisance.

Remanded. We do not retain jurisdiction.

 

Plaintiffs are representing themselves.

DFW is "[c]harged with the responsibility for protecting, propagating, and maintaining an adequate supply of fish, game, and birds . . . 'under the direction and supervision of the [DEP] commissioner.'" U.S. Sportsmen's Alliance Found. v. N.J. Dep't of Envtl. Prot., 182 N.J. 461, 473 (2005) (quoting N.J.S.A. 13:1B-27).

http://www.state.nj.us/dep/fgw/pdf/comm_pres_info.pdf.

We note the apparent inconsistency between Chanda's assertion that DFW considered the effects of the use of lead shot at the preserve and the requirement of the information sheet that steel or other non-toxic shot be used at a CSP.

We cannot decide here whether the narrowness of the statutory criteria for licensure would be mirrored by a corresponding narrowness of any preemptive effect flowing from the issuance of the license. But we note that, despite the designation of the license as "commercial," local land use law actually governs the issue of whether a preserve can be operated as a business or commercial venture.

(continued)

(continued)

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A-6209-07T1

 

August 5, 2010