M. ALFIERI CO., INC. V. STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION AND ENERGY

SYLLABUS
 

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

M. ALFIERI CO., INC. V. STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION AND ENERGY (A-23-94)

Argued October 24, 1994 -- Decided January 12, 1995

PER CURIAM

In 1968, Fenlon Manor, the predecessor in title to M. Alfieri Co., Inc. (Alfieri), obtained final subdivision approval for its property from the Township of Little Falls Planning Board pursuant to the Municipal Planning Act (MPA). Alfieri purchased the property in 1970 and obtained final subdivision approval in July of that year. Thereafter, Alfieri received notice from the New Jersey Department of Environmental Protection and Energy (DEPE) that it was imposing a sewer moratorium that would include Alfieri's property. In later correspondence, DEPE indicated to Alfieri that exceptions to the moratorium would be made where building permits, final subdivision and site plan approvals had been granted prior to its notification letter and in situations involving hardship or other special circumstances. Alfieri did not seek an exemption from the moratorium. Instead, Alfieri halted development of its project.

The moratorium remained in effect until January 1989. Just prior to that time, Alfieri sought a determination from the U.S. Army Corps of Engineers that its delineation of less than one acre of wetlands on the property was correct. On November 16, 1988, the Army Corps determined that Alfieri's wetlands delineation was appropriate.

On May 16, 1990, Alfieri applied to the DEPE for an exemption from the permit requirements of the Freshwater Wetlands Protection Act (FWPA), a comprehensive regulatory scheme for the protection of New Jersey's freshwater wetlands. Pursuant to the FWPA, which became effective July 1, 1988, the DEPE administers the Act's permit program pursuant to stringent criteria designed to discourage disturbance of wetland areas. Certain classes of activities are exempted from the FWPA, including projects for which: 1) the developer obtains local site plan or subdivision approval pursuant to the Municipal Land Use Law (MLUL) prior to the effective date of the FWPA; 2) preliminary site plan or subdivision applications have been submitted prior to June 8, 1987; or 3) permit applications have been approved by the U.S. Army Corps of Engineers prior to the effective date of the Act.

The DEPE denied Alfieri's exemption application, finding that its subdivision approval predated the MLUL and that municipal subdivision grants under the MPA, the MLUL's predecessor statute, did not provide grounds for an exemption. On November 11, 1991, Alfieri submitted a more detailed request for an exemption in which it argued that a subdivision approval under the MPA had essentially the same effect as one granted under the MLUL. In the alternative, Alfieri claimed that development of the property requiring filling less than one acre of wetlands was authorized by federal regulation under a "nationwide permit," and that the Army Corps of Engineers' acceptance of its wetlands delineation constituted authorization under a nationwide permit No. 26 which, under certain circumstances, is exempt from the FWPA.

The DEPE transferred the matter to the Office of Administrative Law for a hearing. On July 9, 1992, an Administrative Law Judge (ALJ) issued an initial decision that concluded that projects having received subdivision approval under the MPA are not exempt from the FWPA. The ALJ would not consider Alfieri's claim that development of the property was covered by nationwide permit No. 26 because that contention had not been raised in a timely manner and was not supported by sufficient documentation. The ALJ also determined that the sewer moratorium had no impact on application of the FWPA.

On September 25, 1992, the Commissioner of the DEPE adopted the findings and conclusions of the ALJ and denied Alfieri's request for an exemption. Alfieri appealed to the Appellate Division, contending that: 1) the projects for which subdivision approvals were granted under the MPA are exempt from the FWPA because the MPA regulated subdivisions essentially in the same manner as the MLUL and, therefore, the constitutional right to equal protection demands that approvals under each statute be treated in similar fashion; 2) the project is authorized under nationwide permit No. 26 and is thus exempt from the FWPA; and 3) the subdivision approval period was tolled pursuant to the sewer moratorium and, therefore, it would be unfair to now apply the FWPA's stringent wetlands requirements.

The Appellate Division found inapplicable the exemption for projects receiving preliminary approval from the local authorities pursuant to the MLUL prior to the effective date of the FWPA because that exemption refers only to approvals obtained pursuant to the MLUL, not the MPA. The panel noted that had the Legislature intended to exempt MPA approvals from the requirements of the FWPA, it would have expressly done so. The Appellate Division believed that its interpretation was supported by important public policy concerns, especially in view of the MLUL's increased focus on environmental interests.

In addition, the Appellate Division concluded that Alfieri's project is not exempt under that portion of the FWPA that provides for preliminary exemption for preliminary site plan or subdivision applications submitted prior to June 8, 1987 because that exemption is tied to the MLUL. The court found that the MPA and the MLUL are substantially different and, thus, the Legislature's differing treatment of the two classes of approvals does not violate equal protection guarantees of the State Constitution.

The Appellate Division disagreed with the ALJ's finding that Alfieri had not sought an exemption pursuant to the approval by the U.S. Army Corps of Engineers and concluded that the ALJ should have considered Alfieri's request for that exemption. In considering the issue, the Appellate Division agreed with the ALJ that the Army Corps of Engineers' acceptance of Alfieri's wetlands delineation did not satisfy the requirements of the applicable regulation, but, nonetheless, found that certain language in the Corps' letter supported Alfieri's claim that it received a nationwide permit by regulation. Thus, the Appellate Division determined that the interests of justice are best served by affording Alfieri the opportunity, on remand, to show that its proposed activities fall within the purview of nationwide permit No. 26.

The Appellate Division found no merit to Alfieri's claim that the tolling provision contained in the MLUL preserved its right to develop the property in accordance with the subdivision approval obtained in 1968. The court reasoned that the record could not fairly be read to conclude that the moratorium barred Alfieri from continuing with its project.

HELD: Judgment of the Appellate Division is AFFIRMED substantially for the reasons expressed in Judge Baime's decision below. Site plan and subdivision approvals granted under the Municipal Planning Act do not exempt projects from the requirements of the Freshwater Wetlands Protection Act. In addition, the tolling provision contained in N.J.S.A. 40:55D-21 does not preserve Alfieri's right to develop the property in accordance with the subdivision approval obtained in 1968 and does not obviate the necessity to comply with the Freshwater Wetlands Protection Act.

CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI and STEIN join in this opinion. JUSTICE CLIFFORD did not participate.

SUPREME COURT OF NEW JERSEY
A- 23 September Term 1994

M. ALFIERI CO., INC.,

Appellant-Appellant,

v.

STATE OF NEW JERSEY,
DEPARTMENT OF ENVIRONMENTAL
PROTECTION AND ENERGY,

Respondent-Respondent.

Argued October 24, 1994 -- Decided January 12, 1995

On certification to the Superior Court, Appellate Division, whose opinion is reported at 269 N.J. Super. 545 (1994).

Charles Oransky argued the cause for appellant (Hellring Lindeman Goldstein & Siegal, attorneys).

Barbara Conklin, Deputy Attorney General, argued the cause for respondent (Deborah T. Poritz, Attorney General of New Jersey, attorney; Mary C. Jacobson, Assistant Attorney General, of counsel).

PER CURIAM

The judgment is affirmed, substantially for the reasons expressed in the opinion of the Appellate Division, reported at 269 N.J. Super. 545 (1994).

CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI, and STEIN join in this opinion. JUSTICE CLIFFORD did not participate.

SUPREME COURT OF NEW JERSEY
 

NO. A-23

SEPTEMBER TERM 1994
ON APPEAL FROM ON CERTIFICATION TO Appellate Division, Superior Court
M. ALFIERI CO., INC.,

Appellant-Appellant,

v.

STATE OF NEW JERSEY,
DEPARTMENT OF ENVIRONMENTAL
PROTECTION AND ENERGY,

Respondent-Respondent.

DECIDED January 12, 1995 Chief Justice Wilentz

PRESIDING
OPINION BY Per Curiam CONCURRING OPINION BY DISSENTING OPINION BY
CHECKLIST
AFFIRM CHIEF JUSTICE WILENTZ X JUSTICE CLIFFORD ------------ ---------- ----------- JUSTICE HANDLER X JUSTICE POLLOCK X JUSTICE O'HERN X JUSTICE GARIBALDI X JUSTICE STEIN X TOTALS
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