DISTRIBUTEC, INC. V. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION

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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).

DISTRIBUTEC, INC. V. N.J. DEPT. OF ENVIRONMENTAL PROTECTION AND ENERGY (A-90-94)
 

(NOTE: This Court wrote no full opinion in this case. Rather, the Court's affirmance of the judgment of the Appellate Division is based substantially on the reasons expressed in the PER CURIAM opinion below.)

Argued February 14, 1995 -- Decided March 22, 1995

PER CURIAM

Distributec, Inc. (Distributec) applied to the Department of Environmental Protection and Energy (DEPE) for a permit to build a new port facility for container-cargo vessels on the Delaware River in Delanco Township. After a public hearing, the Director of the Division of Coastal Resources (Division) issued a decision denying Distributec's permit application, finding that Distributec's proposal was inconsistent with its regulatory policies on Ports, Port Use and Traffic as specified in NJ regulations.

Distributec appealed that decision and requested an administrative hearing. The matter was referred to the Office of Administrative Law as a contested case. Delanco Land Partnership (DLP), a developer that owned riverfront property that bordered the southern edge of Distributec's property moved to intervene and oppose Distributec's proposed port facility. DLP planned to build a large residential complex and marina on its property. DLP was granted leave to intervene. The Administrative Law Judge (ALJ) issued a written decision finding that Distributec's proposed facility did not meet the Ports Rule definition of an existing port because Distributec does not lie within or immediately adjacent to a concentration of shore side marina terminals. Having determined that the facility failed to qualify as an existing port under the Ports Rule, the ALJ then determined that Distributec had satisfied the Port Use Rule's requirement for establishing a new port outside of the defined port areas in that: there was an absence of suitable space for Distributec in existing ports; and that the proposed facility would not be incompatible with surrounding land uses in Delanco. The ALJ recommended a reversal of the Division's denial of Distributec's application to construct a port facility.

While the matter was pending final decision, the Township of Delanco (Delanco) moved to intervene because DLP had prevailed against it in Mt. Laurel litigation which resulted in a revision of Delanco's zoning ordinance. Delanco sought to intervene in opposition to Distributec's permit application, in order to protect DLP's proposed project and thereby preserve DLP's offer to construct affordable housing in its planned residential complex. The matter was reopened and Delanco was permitted to intervene.

The Commissioner issued a final decision, rejecting the ALJ's decision and affirming the decision of the Division. The Commissioner concluded that: (1) Distributec had failed to meet the requirements of the Ports Rule because it did not meet the definition of an existing port; (2) Distributec had failed to satisfy one of the requirements of the Ports Use Rule because it failed to demonstrate the unavailability of suitable land and water areas in or adjacent to established ports; and (3) Distributec had failed to show that the proposed port facility would be compatible with the surrounding land uses in and around Delanco as required under the "compatibility" test of the Port Use Rule.

Distributec appealed the decision of the Commissioner to the Appellate Division, which affirmed the decision. On appeal, Distributec contended that both the Ports Rule and the Port Use Rule violate the legislative objectives underlying the Waterfront Development Act (WDA). The Appellate Division noted that the purpose of the WDA is to regulate development immediately contiguous to navigable State waters.

The court found that the judicially recognized legislative objective of the WDA is much broader than the one that Distributec identified; thus, the WDA's purpose is not confined to merely fostering and promoting marine commerce.

Distributec also argued on appeal that the Ports Rule contradicts the legislative objective of the WDA because it restricts marine commerce by forcing that commerce into existing ports or into areas "immediately adjacent" to those existing ports. The Appellate Division found that the Ports Rule is just the type of administrative control over commercial development and marine commerce that the Legislature envisioned when it enacted the WDA and, therefore, Distributec's narrowly focused argument must fail. Moreover, the court held that the two Port Use Rule test, "need" and "compatibility," satisfy the objectives of the WDA because they regulate commercial port development along the New Jersey waterfront to facilitate navigation and marine commerce.

Distributec further argued that there was sufficient credible evidence in the record to support its contention that the proposed facility is located within an existing port. Although Distributec conceded that its proposed facility does not meet the literal definition of a port as defined in the Ports Rule, Distributec argued that a reasonable and judicial interpretation of the term "port" would encompass its proposed facility. The Appellate Division rejected this argument, finding that while Distributec's expansive definition of the term "port" might be consonant with the unbridled promotion of marine commerce, it is plainly at odds with the concept of regulated commercial development that is at the core of the WDA's legislative objective. Finally, the Appellate Division found that there was sufficient credible evidence to support the DEPE's permit denial based on Distributec's failure to satisfy the Port Use Rule's "need" and "compatibility" tests.

HELD: Judgment of the Appellate Division is affirmed substantially for the reasons expressed in the written per curiam opinion below. The DEPE properly denied Distributec's permit application to build a new port facility on its property.

Judgment of the Appellate Division is AFFIRMED.

CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI, STEIN, and COLEMAN join in this opinion.

SUPREME COURT OF NEW JERSEY
A- 90 September Term 1994

DISTRIBUTEC, INC.,

Petitioner-Appellant,

v.

NEW JERSEY DEPARTMENT OF
ENVIRONMENTAL PROTECTION
AND ENERGY, DIVISION OF
COASTAL RESOURCES,

Respondent-Respondent,

and

DELANCO LAND PARTNERSHIP and
THE TOWNSHIP OF DELANCO,

Intervenors-Respondents.

Argued February 14, 1995 -- Decided March 22, 1995

On certification to the Superior Court, Appellate Division, whose opinion is reported at 274 N.J. Super. 1 (1994).

Neil Yoskin argued the cause for appellant (Picco Mack Herbert, attorneys).

Kathe F. Mullally, Deputy Attorney General, argued the cause for respondent New Jersey Department of Environmental Protection, etc. (Deborah T. Poritz, Attorney General of New Jersey, attorney; Mary C. Jacobson, Assistant Attorney General, of counsel).

Arnold C. Lakind argued the cause for Delanco Land Partnership (Szaferman, Lakind, Blumstein, Watter & Blader, attorneys).

Nicholas J. Costa argued the cause for Township of Delanco (Costa & Vetra, attorneys).

PER CURIAM

The judgment is affirmed, substantially for the reasons expressed in the opinion of the Appellate Division, reported at 274 N.J. Super. 1 (1994).

Chief Justice Wilentz and Justices Handler, Pollock, O'Hern, Garibaldi, Stein, and Coleman join in this opinion.

SUPREME COURT OF NEW JERSEY
 

NO. A-90

SEPTEMBER TERM 1994
ON APPEAL FROM ON CERTIFICATION TO Appellate Division, Superior Court
DISTRIBUTEC, INC.,
Petitioner-Appellant,
v.
NEW JERSEY DEPARTMENT OF
ENVIRONMENTAL PROTECTION
AND ENERGY, DIVISION OF
COASTAL RESOURCES,
Respondent-Respondent,
and
DELANCO LAND PARTNERSHIP and
THE TOWNSHIP OF DELANCO,
Intervenors-Respondents.

DECIDED March 22, 1995 Chief Justice Wilentz

PRESIDING
OPINION BY PER CURIAM CONCURRING OPINION BY
DISSENTING OPINION BY
CHECKLIST
AFFIRM CHIEF JUSTICE WILENTZ X JUSTICE HANDLER X JUSTICE POLLOCK X JUSTICE O'HERN X JUSTICE GARIBALDI X JUSTICE STEIN X JUSTICE COLEMAN X TOTALS
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