SHARK RIVER CLEANUP COALITION, INC. v. CHELSEA PROPERTY GROUP, INC., et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4744-05T14744-05T1

SHARK RIVER CLEANUP

COALITION, INC., a New Jersey

Non-Profit Corporation,

Plaintiff-Appellant,

v.

CHELSEA PROPERTY GROUP, INC., a

Maryland Corporation, and

CPG TINTON FALLS, LLC, a New Jersey

Limited Liability Company,

Defendants-Respondents.

_________________________________________________

 

Submitted January 23, 2007 - Decided June 14, 2007

Before Judges Payne and Graves.

On appeal from Superior Court of New Jersey

Law Division, Monmouth County, L-642-06.

John P. Brennan, Jr., attorney for appellant.

Lowenstein Sandler, attorneys for

respondents (Christopher S. Porrino, on the

brief).

PER CURIAM

An environmental group, the Shark River Cleanup Coalition (SRCC), appeals from the dismissal by Judge Perri, for failure to state a cause of action, of the SRCC's first-amended verified complaint against defendants Chelsea Property Group, Inc. and CPG Tinton Falls Urban Renewal, LLC (together, Chelsea), the developers of a retail outlet center, instituted pursuant to the New Jersey Environmental Rights Act (ERA), N.J.S.A. 2A:35A-1 to -14.

It is the SRCC's contention that Chelsea was required to comply with municipal stormwater runoff ordinance no. 40:68, adopted by the Borough of Tinton Falls on May 3, 2005 and effective on that date, that would have required the maintenance of an undeveloped three-hundred-foot buffer to protect the water quality of a tributary of the Shark River.

The ordinance provides that it "shall be applicable to any site plan or subdivision application that requires preliminary or final review after the effective date of the adoption of this ordinance." Id. 40:68.1B. The ordinance further states:

Major development that has received one of the following approvals pursuant to the Municipal Land Use Law: preliminary or final site plan approval . . . prior to the effective date of the adoption of this ordinance, is exempt from the rules of this ordinance.

If any of the above approvals is amended, revised or expires, exemption shall be deemed void, and the project in its entirety shall comply with the rules of this ordinance.

[Id. 40:68.1C.]

Chelsea received preliminary site plan approval for its outlet project on January 5, 2005, prior to the adoption of the ordinance, and on May 11, 2005, it was granted final site plan approval. Although the record does not contain a copy of the resolution granting final site plan approval, SRCC asserts without contradiction that paragraph 14 noted that Chelsea had applied for various wetlands and other permits from the New Jersey Department of Environmental Protection (NJDEP), that its applications remained pending and, "in the event that these NJDEP permits or other required approvals result in any changes to the site plan, then Chelsea must submit an application for amended site plan approval to the Planning Board. Th[is] will be set forth as a condition of approval."

On June 20, 2005, the NJDEP classified the Shark River Brook and its named tributaries, including one crossing Chelsea's property, as Category One (C1) waterways requiring a three-hundred-foot buffer. N.J.A.C. 7:9B-1.4 and -1.15. Prior to that date, on May 18, 2005, the permits sought by Chelsea were denied by the NJDEP. Chelsea revised its plans and reapplied to the DEP on May 27, 2005. Although its application was expedited, no action occurred before June 20, 2005, the effective date of the relevant NJDEP C1 designation. The application was therefore denied by the NJDEP as the result of failure to comply with the C1 buffer requirements.

Chelsea thereupon modified its plans to avoid the application of NJDEP requirements, and on October 4, 2005, it was informed by the NJDEP that no permits were required, and that the NJDEP did not have jurisdiction over Chelsea's proposed development. Chelsea did not seek further site plan review by the Tinton Falls Planning Board, and none was requested by the Board.

A verified complaint was filed against Chelsea by the SRCC on February 9, 2006, and a first-amended verified complaint was filed on February 21, 2006. In that amended complaint, the SRCC alleged that Chelsea was in violation of the Tinton Falls stormwater ordinance, and it sought temporary and permanent restraints prohibiting Chelsea from any further violation of the ordinance.

A motion to dismiss the complaint on the pleadings, pursuant to R. 4:6-2(e), was filed by Chelsea on March 31, 2006 and granted on May 1, 2006. An appeal was filed the next day. A subsequent motion by Chelsea for sanctions pursuant to N.J.S.A. 2A:15-59.1 and R. 1:4-8, considered by Judge Perri upon remand for that purpose, was denied.

In opposing dismissal of its complaint, the SRCC alleged that the revisions made by Chelsea to its site plan voided the Planning Board's approvals and rendered invalid the exemption from the buffer requirements of the Tinton Falls stormwater ordinance. Judge Perri rejected that argument, relying on the plain language of the ordinance to hold that "a change in the status of the approval, not the project" triggers the loss of the exemption.

Judge Perri additionally rejected the SRCC's argument that Chelsea's changes to the site plan triggered paragraph 14 of its final site plan approval and required Chelsea to file an application for an amended approval. She reasoned:

While paragraph 14 may require an application for an amendment to the site plan based upon the changes, the fact remains that as of the filing of the plaintiff's complaint, no change in the status of the approvals had occurred. Plaintiff's complaint does not allege a cause of action to compel Chelsea to comply with conditions of the approval. Note that an action in lieu of prerogative writs is already pending before the court in which a non party to this action addresses the validity of and compliance with the preliminary and final approvals granted to Chelsea.

Rather, SRCC's cause of action is based solely upon a claim that as of the filing of the complaint Chelsea was in violation of the Storm Water ordinance. In the context of that claim, it is entirely speculative that an application will have to be made at some unspecified time in the future, and that it might result in a change to the approval. Such rank conjecture is insufficient to support a claim for injunctive relief under the ERA.

* * *

The ecological significance of the subject matter is immaterial to the question of whether Chelsea is in compliance with the applicable law. The Storm Water ordinance, by definition, exempts Chelsea from its requirements. The plain language of the statute states that such exemption will be void only if the prior site plan approval is "amended, revised, or expires."

None of these contingencies has occurred, and accordingly, the court grants Chelsea's motion to dismiss the complaint as a matter of law.

Our review of Judge Perri's order granting Chelsea's motion to dismiss the SRCC's amended complaint for failure to state a cause of action is governed by the same standard applicable in the trial court. Donato v. Moldow, 374 N.J. Super. 475, 483 (App. Div. 2005). We thus accept as true the facts alleged in the SRCC's amended complaint to determine whether, when liberally viewed, they set forth a claim against Chelsea upon which relief can be granted. Printing Mart - Morristown v. Sharp Electronics, Corp., 116 N.J. 739, 746 (1989).

On appeal, the SRCC again claims that the applicability of Tinton Falls' stormwater ordinance was triggered by revisions to the site plan, rather than by amendment, revision or expiration of the site plan approval. We concur with Judge Perri's determination that the plain language of the ordinance does not support the SRCC's position, and we affirm on the basis of her thoughtful analysis. Given the ordinance's clear and unambiguous terms, no grounds exist for a resort to the external evidence that the SRCC seeks to marshal in support of its position. Ramapo River Reserve v. Oakland, 186 N.J. 439, 450 (2006) (quoting DiProspero v. Penn, 183 N.J. 477, 492 (2005)).

We also agree with Judge Perri that it would be speculative to conclude that Chelsea may, in the future, be required to resubmit its plans to the Tinton Falls Planning Board for reconsideration of its approvals, and thus the SRCC should be permitted to pursue its claim for injunctive relief for violation of the stormwater ordinance. And again, we affirm on the basis of the judge's decision. Although, as the SRCC argues, the ERA does permit an action to enforce laws on pollution that are premised upon future conduct, N.J.S.A. 2A:35A-4a, it does so only under narrow circumstances, providing:

The action may be commenced upon an allegation that a person is in violation, either continuously or intermittently, of a statute, regulation or ordinance, and that there is a likelihood that the violation will recur in the future.

In the present case, the statutory condition of a present violation that forms the foundation for prospectively-based relief has not been met.

As a final matter, we perceive no need for discovery in the matter, such discovery being of no demonstrated relevance to the issues raised.

Having searched the SRCC's amended complaint and the documents referenced in it, to the extent that they have been incorporated in the record, in light of the arguments presented by the SRCC, we find no ground to differ from the conclusion of Judge Perri that dismissal was warranted.

Affirmed.

 

We reject the SRCC's argument that the Municipal Land Use Law (MLUL) does not contemplate "revised approvals," noting the use of that term in prior opinions. See, e.g., Fox v. Kings Grant Maint. Ass'n, Inc., 167 N.J. 208, 214 (2001); National Amusements, Inc. v. N.J. Turnpike Auth., 275 N.J. Super. 134, 137 (App. Div.), certif. denied, 138 N.J. 269 (1994).

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A-4744-05T1

June 14, 2007