RAJESHWAR SINGH YADAV v. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION LAND USE REGULATION

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-4035-15T2

RAJESHWAR SINGH YADAV and
ROOPA YADAV,

        Petitioners-Appellants,

v.

NEW JERSEY DEPARTMENT OF
ENVIRONMENTAL PROTECTION –
LAND USE REGULATION,

     Respondent-Respondent.
_______________________________

              Argued November 27, 2017 – Decided December 15, 2017

              Before Judges O'Connor and Vernoia.

              On appeal from the New Jersey Department of
              Environmental Protection.

              Rajeshwar Singh Yadav, appellant, argued the
              cause pro se.

              Ryan C. Atkinson, Deputy Attorney General,
              argued the cause for respondent (Christopher
              S. Porrino, Attorney General, attorney;
              Melissa H. Raksa, Assistant Attorney General,
              of counsel; Timothy P. Malone, Deputy Attorney
              General, on the brief).

PER CURIAM
       Petitioners Rajeshwar Singh Yadav and Roopa Yadav appeal from

the New Jersey Department of Environmental Protection's (DEP)

final agency decision cancelling their application for a letter

of    interpretation   (LOI)     verifying    the   location     of   freshwater

wetlands, transition areas, and State open waters on property they

own in West Windsor.         Because we are satisfied there is sufficient

credible evidence in the record supporting the DEP's decision and

there is no merit to petitioners' legal arguments, we affirm.

       In   August   2012,     petitioners    applied    to    the    DEP    for    a

freshwater     wetlands      line   verification       LOI    pursuant      to   the

Freshwater Wetlands Protection Act (FWPA), 
N.J.S.A. 13:9B-1 to

-30, and its regulations, N.J.A.C. 7:7A-3.1 to -3.6, for their

West Windsor property. A LOI provides the DEP's determination as

to:   "[w]hether     there    are   any   freshwater    wetlands,     transition

areas, and/or State open waters present . . . ;" "where the

boundaries of the freshwater wetlands, transition areas, and/or

State open waters are located . . . ;" and "[w]hat is the resource

value classifications . . . of freshwater wetlands on a site."
1 N.J.A.C. 7:7A-3.1(a)(1), (2) and (3); see also N.J.A.C. 7:7A-1.4

(defining "'Letter of interpretation' or 'LOI'").




1
 The resource value classifications are determined "under N.J.A.C.
7:7A-2.4." N.J.A.C. 7:7A-3.1(a)(3).

                                          2                                 A-4035-15T2
      The DEP processed petitioners' LOI application.              During an

October 2, 2012 site inspection of the property, DEP staff observed

wetlands   vegetation    and    evidence   of   water    surface   flows    and

ponding.   Staff also noted "naturally occurring streams" that were

consistent with the results of a soil survey, which showed the

majority of the soil on the property was indicative of a high

ground water table.          DEP staff determined the majority of the

property contained wetlands2 but petitioners' LOI application did

not delineate all of the wetlands on the property.

      In October 2012, the DEP sent petitioners a letter advising

that "large areas of wetlands were omitted from" the delineation

contained in the survey plan included with their LOI application.

The DEP noted other deficiencies in the application.            For example,

petitioners were advised that certain features on their survey

plan, such as their designation of certain areas as "DITCH[ES]"

and "MANMADE DITCH[ES]," were not consistent with the definition

of   "ditch"   under   the    regulations.3     The     DEP   requested    that


2
  The DEP utilized the standards in the 1989 Federal Manual For
Identifying And Delineating Jurisdictional Wetlands, as defined
in N.J.A.C. 7:7A-1.4, to identify and delineate the wetlands on
petitioners' property. See N.J.A.C. 7:7A-2.3.

3 See N.J.A.C. 7:7A-1.4 (defining "ditch" as a "linear topographic
depression with bed and banks of human construction, which conveys
water to or from a site, which is surrounded by uplands which is
not located within a wetland. This does not include channelized
or redirected natural water courses.").

                                     3                                A-4035-15T2
petitioners remedy the deficiencies within sixty-days so it could

conduct a full site inspection and continue its review of the LOI

application.    The DEP advised petitioners that if they could not

meet   the   deadline,   they   should    withdraw   the   application     and

resubmit it when the deficiencies were corrected.

       In January 2013, petitioners submitted a revised site plan

in support of their application.         The submitted plan was deficient

because it was neither signed nor surveyed.          Nevertheless, the DEP

conducted an interim site inspection on January 29, 2013, which

revealed petitioners' revised site plan again did not delineate

all of the property's wetlands.

       The following day, the DEP sent petitioners a letter noting

that the revised site plan did not accurately                   delineate the

wetlands and requesting submission of a corrected property survey.

The    DEP   offered   to   meet   with    petitioners     to    discuss   any

discrepancies prior to the submission of "a revised wetlands

survey."4    The DEP advised petitioners to correct the deficiencies

within thirty days or consider withdrawing their LOI application.




4
  The letter also stated that the site inspection revealed
petitioners were engaging in regulated activities within the
wetland areas and they should cease those activities "until an
accurate wetland delineation is established."


                                     4                                A-4035-15T2
       Petitioners did not correct the deficiencies identified in

the DEP's letters.        On May 10, 2013, the DEP sent petitioners a

letter in accordance with N.J.A.C. 7:7A-12.6 advising that if the

deficiencies     were    not   corrected      within    thirty-days,      the    LOI

application would be cancelled.5            Petitioners did not correct the

noted   deficiencies,      but   instead      submitted     correspondence        to

various DEP officials arguing the property was exempt from the DEP

regulations.     On July 22, 2013, the DEP cancelled petitioners' LOI

application.

       Petitioners requested reconsideration of the cancellation,

but it was denied.         The DEP informed petitioners it could not

waive the requirements of the wetlands regulations.                   The DEP also

explained   it   had     not   received     any   permit    applications        from

petitioners but cancelled only petitioners' application for the

LOI.    The DEP noted that an LOI is limited to delineating the

parameters of the various wetlands on the site.6

       Petitioners      requested   a   hearing        before   the    Office     of

Administrative     Law,    and   the    DEP   transmitted       the    matter   for



5 N.J.A.C. 7:7A-12.6 requires that the DEP provide only fifteen-
days' notice of cancellation of an LOI application.
6
  Following the cancellation of petitioners' LOI application, the
DEP issued a notice of violation for "the placement of fill and
woodchips within a freshwater wetland and transition area" on
their property. The notice constituted a warning and the DEP did
not take any further enforcement action.

                                        5                                  A-4035-15T2
determination    of    a    single       issue:    whether     petitioners'     LOI

application was properly cancelled.               Following discovery, the DEP

moved for a summary decision dismissing the matter.                   Petitioners

cross-moved, arguing they were exempt from the DEP regulations.

     The    administrative        law    judge     (ALJ)     issued   an   initial

decision,   granting       the   DEP's    motion    and    denying    petitioners'

cross-motion.   The ALJ first rejected petitioners' claim that they

were exempt from FWPA requirements.                 Petitioners asserted they

were exempt from the FWPA's requirements because they obtained

preliminary subdivision approval of the property from West Windsor

in 1985,7 prior to the FWPA's July 1, 1988 effective date.                  See L.

1987, c. 156 § 1.

     The ALJ rejected petitioners' claimed exemption based on the

prior subdivision approval, relying on this court's decision in

Yadav, in which we considered petitioners' challenge to West

Windsor's denial of petitioners' renewed application for a major


7
  The approval followed entry of a 1983 consent order in a lawsuit
filed by petitioners against West Windsor challenging its denial
of petitioners' application for a major subdivision.      Yadav v.
Twp. of West Windsor, A-2329-04 (App. Div. Mar. 17, 2006) (slip
op. at 2).     The order authorized petitioners to refile the
application. Ibid. West Windsor granted preliminary approval in
1985. Ibid. Yadav challenged the preliminary approval and, in
1987, the trial court upheld the 1985 approval. Ibid. We affirmed
the court's ruling, with a single minor modification, in 1989.
Ibid.



                                          6                                A-4035-15T2
subdivision approval.          Yadav, slip. op. at 3.            In that matter, we

determined that the 1985 preliminary approval "expired after three

years" and that petitioners "no longer [had] any right to develop

their   land   in     accordance    with    .     .    .   the    1985   preliminary

approval."8        Id. at 5.     We held petitioners "may no longer rely

upon the preliminary approval or any of the previous court orders

to subdivide their property.          Should they choose to pursue their

interest, they must comply with the current zoning regulations and

. . . apply for the appropriate permits and to seek approval."

Id. at 6.

     Here, the ALJ concluded that petitioners could not rely upon

the 1985 preliminary approval as the basis for their claimed

exemption from the FWPA's requirements here.                  The ALJ adopted the

reasoning     in    our   2006   opinion    and       found   that   the   "pre-1988

preliminary subdivision approval" did not have "any ongoing legal

significance" and therefore did not have "any bearing on whether

or not the LOI application was properly cancelled."

     The ALJ also found the undisputed facts established the DEP

notified petitioners of the deficiencies in their LOI application,

and petitioners ignored the deficiencies in favor of arguing they



8
  We also held petitioners did not have the right to develop their
property under the 1983 consent order or our 1989 decision. Yadav,
slip op. at 6.

                                        7                                    A-4035-15T2
were exempt from the FWPA's requirements.             The ALJ determined the

DEP provided proper and timely notice of its intention to cancel

the    LOI    application,   and    petitioners    failed   to   correct   the

deficiencies in the application.            The ALJ therefore concluded the

DEP properly cancelled the LOI application in accordance with

N.J.A.C. 7:7A-12.6(b).

       Petitioners filed exceptions to the ALJ's decision.           The DEP

determined petitioners failed to correct the deficiencies in the

LOI    application     after       properly    receiving    notice   of    the

deficiencies and of the intention to cancel the application, and

concluded      the   decision   cancelling      the   LOI   application    was

appropriate.      This appeal followed.

       "The scope of appellate review of a final agency decision is

limited," and we will not overturn an agency's final decision "in

the absence of a showing that it was arbitrary, capricious or

unreasonable, or that it lacked fair support in the evidence."               In

re Carter, 
191 N.J. 474, 482 (2007) (citations omitted).                   "[A]

court may intervene when 'it is clear that the agency action is

inconsistent with its mandate.'"              In re Proposed Quest Academy

Charter Sch. of Montclair Founders Grp., 
216 N.J. 370, 385 (2013)

(quoting In re Petitions for Rulemaking, N.J.A.C. 10:82-1.2 &

10:85-4.1, 
117 N.J. 311, 325 (1989)).              "Unless a [c]ourt finds

that    the     agency's     action    was     arbitrary,   capricious,      or

                                        8                             A-4035-15T2
unreasonable, the agency's ruling should not be disturbed."      Brady

v. Bd. of Review, 
152 N.J. 197, 210 (1997).

     Our Supreme Court has stated that,

          [a]lthough sometimes phrased in terms of a
          search for arbitrary or unreasonable action,
          the judicial role [in reviewing an agency
          action] is generally restricted to three
          inquiries: (1) whether the agency's action
          violates express or implied legislative
          policies, that is, did the agency follow the
          law;   (2)   whether   the  record   contains
          substantial evidence to support the findings
          on which the agency based its action; and (3)
          whether in applying the legislative policies
          to the facts, the agency clearly erred in
          reaching   a   conclusion  that   could   not
          reasonably have been made on a showing of the
          relevant factors.

          [In re Proposed Quest Academy Charter Sch.,
          
216 N.J. at 385 (alterations in original)
          (quoting Mazza v. Bd. of Trs., 
143 N.J. 22,
          25 (1995)).]

     The party challenging an agency action has "[t]he burden of

showing   that   an       action   was   arbitrary,   unreasonable    or

capricious   .   .    .   ."   McGowan v. N.J. State Parole Bd., 
347 N.J. Super. 544, 563 (App. Div. 2002) (citing Barone v. Dept. of

Human Servs., Div. of Med. Assistance & Health Servs., 
210 N.J.

Super. 276, 285 (App. Div. 1986), aff'd, 
107 N.J. 355 (1987)).

Although we are not "'bound by the agency's interpretation of a

statute or its determination of a strictly legal issue,' if

substantial evidence supports the agency's decision, 'a court may


                                     9                         A-4035-15T2
not substitute its own judgment for the agency's even though the

court might have reached a different result.'"    In re Carter, 
191 N.J. at 483 (citations omitted).

     We have carefully reviewed petitioners' arguments and find

they lack sufficient merit to warrant discussion in a written

opinion.     R. 2:11-3(e)(3).    We add only the following brief

comments.

     The record amply supports the DEP's decision.      Petitioners

were advised of the deficiencies in their LOI application and did

not correct them despite being afforded numerous opportunities to

do so.     The DEP provided the required notice of cancellation and

then cancelled petitioner's application based on petitioners'

undisputed failure to correct the noted deficiencies or otherwise

show "good cause" for their failure to do so.    See N.J.A.C. 7:7A-

12.6(b).

     We reject petitioners claim they are exempt from the FWPA's

requirements under 
N.J.S.A. 13:9B-4(d).     In pertinent part, the

statute provides an exemption "from the requirement of a freshwater

wetlands permit and transition area requirements" for "[p]rojects

for which . . . preliminary site plan or subdivision applications

have received preliminary approvals from the local authorities

pursuant to the 'Municipal Land Use Law,'" 
N.J.S.A. 40:55D-1 to

-163, or "preliminary site plan or subdivision applications have

                                 10                         A-4035-15T2
been submitted prior to June 8, 1987."               
N.J.S.A. 13:9B-4(d).          The

exemption,       however,    does    not    apply   where    "the   United     States

Environmental Protection Agency's [(EPA)] regulations providing

for the delegation to the state of the federal wetlands program

conducted pursuant to the Federal Act[9] require a permit for any

of these activities."          
N.J.S.A. 13:9B-4.           In that case, the DEP

"shall require a permit for those activities identified by" the

EPA.   Ibid.

       As   we    explained     in    MCG       Associates    v.    Department       of

Environmental Protection, 
278 N.J. Super. 108, 111 (App. Div.

1994), 
N.J.S.A. 13:9B-4 exempts projects that were approved prior

to the FWPA's effective date of July 1, 1988, "unless federal

regulations conditioned New Jersey's assumption of the federal

program upon voiding the exemptions."                     On March 2, 1994, "the

federal     government      granted   the       State's    application   to    assume

jurisdiction over most of the freshwater wetlands in New Jersey[,]"

id. at 110, and thus the EPA required that New Jersey "void

exemptions for construction in wetlands in order to assume the

federal program," id. at 111.               As a result, the 
N.J.S.A. 13:9B-

4(d) exemption upon which petitioners rely does not apply to any


9
 The "Federal Act" is "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." 
N.J.S.A. 13:9B-3.

                                           11                                 A-4035-15T2
freshwater wetlands on their property.           Ibid.    The 
N.J.S.A. 13:9B-

4(d)   exemption,      however,   continues   to    apply    to    the    State's

transition area requirements because the "federal program does not

regulate buffer areas."       Ibid.

       Petitioners are not exempt from the FWPA under 
N.J.S.A. 13:9B-

4(d) because, as they acknowledge and the undisputed facts show,

their property includes freshwater wetlands. They are not entitled

to the 
N.J.S.A. 13:9B-4(d) exemption because since the DEP assumed

jurisdiction    over    freshwater    wetlands     in    1994,    the   statutory

exemption no longer applied to the freshwater wetlands on their

property.10    Ibid.

       Affirmed.




10
   It is not disputed that petitioners' property includes
freshwater wetlands and that they failed to correct the
deficiencies related to the freshwater wetlands in their LOI
application. We find it unnecessary to determine the extent of the

N.J.S.A. 13:9B-4(d) exemption, if any, to any transition areas on
their property because their failure to correct the survey plan
deficiencies related to the freshwater wetlands alone required
cancellation of the application. Because we find petitioners are
not exempt from the FWPA's requirements for the freshwater wetlands
on their property, it is also unnecessary to decide if the DEP
correctly determined petitioners could not rely on the 1985
preliminary approval to support the claimed exemption under

N.J.S.A. 13:9B-4(d) for any "transition area requirements."


                                      12                                  A-4035-15T2