N.J. Highlands Coalition v. New Jersey Department of Environmental Protection .

Annotate this Case
Justia Opinion Summary

The under review by the New Jersey Supreme Court affirmed several actions by the State Department of Environmental Protection (DEP) with regard to property in the Borough of Oakland that is subject to the Highlands Water Protection and Planning Act (Highlands Act), N.J.S.A. 13:20-1 to -35. N.J. The Supreme Court granted certiorari review only the determination that the property owner -- Bi-County Development Corporation (Bi-County) -- qualified for the exemption allowed under the Highlands Act for the construction of affordable housing projects, N.J.S.A. 13:20-28(a)(17) (Exemption 17). The issue required interpretation of Exemption 17’s language concerning expiration of its safe harbor. The Court agreed with the Appellate Division, and the DEP, that this project could proceed under Exemption 17 because its qualification had not expired. The Supreme Court affirmed the Appellate Division substantially for the reasons expressed in the published decision of the panel, adding only that affirmance was based solely on a plain language reading of the Highlands Act that did not incorporate the definition of “final approval” contained in the separate but related Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163.

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
Court. In the interest of brevity, portions of any opinion may not have been summarized.)

   N.J. Highlands Coalition v. New Jersey Department of Environmental Protection
                                 (A-32-17) (079963)

(NOTE: The Court did not write a plenary opinion in this case. Instead, the Court
affirms the judgment of the Appellate Division substantially for the reasons expressed
in the per curiam opinion published at ___ N.J. Super. ___ (App. Div. 2017).

Argued November 7, 2018 -- Decided December 13, 2018

PER CURIAM

        The Appellate Division judgment under review affirmed several actions by the State
Department of Environmental Protection (DEP) with regard to property in the Borough of
Oakland that is subject to the Highlands Water Protection and Planning Act (Highlands Act),
 N.J.S.A. 13:20-1 to -35. ___ N.J. Super. ___ (App. Div. 2017). The Court granted the
petition for certification filed by plaintiffs, the N.J. Highlands Coalition and the Sierra Club,
N.J., to review only the determination that the property owner -- Bi-County Development
Corporation (Bi-County) -- qualified for the exemption allowed under the Highlands Act for
the construction of affordable housing projects,  N.J.S.A. 13:20-28(a)(17) (Exemption 17).

        Exemption 17 states that a major Highlands development project located in one of the
specified Planning Areas shall be exempt from the Highlands Act’s requirements if, “on or
before March 29, 2004,” it “has been the subject of a settlement agreement and stipulation of
dismissal filed in the Superior Court . . . to satisfy the constitutional requirement to provide
for the fulfillment of the fair share obligation of the municipality in which the development is
located.”  N.J.S.A. 13:20-28(a)(17). The statute provides that “[t]he exemption provided
pursuant to this paragraph shall expire if construction beyond site preparation does not
commence within three years after receiving all final approvals required pursuant to the
'Municipal Land Use Law[]’ [(MLUL),  N.J.S.A. 40:55D-1 to -163].” Ibid. The dispute in
this case centers on the meaning of that provision.

        In January 1991, Bi-County reached a settlement agreement with the Borough of
Oakland and the Oakland Planning Board to permit construction of an inclusionary housing
development on Bi-County’s property within the Borough. As a result of the settlement, the
parties filed a stipulation of dismissal resolving litigation between them. In July 2007, the
Oakland Planning Board granted preliminary and final major site plan approval and all
variances and waivers for construction on Bi-County’s property. The approval listed fifty-
seven conditions, including receipt of all necessary approvals from the DEP.

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        In January 2014, the DEP and Bi-County executed a settlement agreement that
provided for issuance of certain general permits for which Bi-County had applied. As part of
that settlement agreement, the DEP determined that Bi-County was entitled to the Highlands
Act exemption under  N.J.S.A. 13:20-28(a)(17) because the property was developed in
accordance with the 1991 settlement, and the Planning Board’s July 2007 approval was not a
final approval within the meaning of  N.J.S.A. 40:55D-4 until Bi-County satisfied the
conditions of the approval, including issuance of the general permits.

       After the DEP issued the requested general permits in 2015, plaintiffs appealed,
contending that the DEP erred as a matter of law in its determination that the 2007 approval
was not a final approval within the meaning of  N.J.S.A. 40:55D-4. Plaintiffs posited that the
2007 approval was a final approval because it constituted official action that conferred on Bi-
County all rights attendant to a final approval, and those rights vested on the date of the final
approval regardless of whether there were conditions of approval. Accordingly, plaintiffs
argued that, because the 2007 approval was a final approval and Bi-County failed to begin
construction, Bi-County was not entitled to the exemption.

        The Appellate Division affirmed the DEP’s conclusion “that Bi-County was entitled
to the exemption under N.J.S.A. 13:20-28(a)(17).” ___ N.J. Super. at ___ (slip op. at 19).
The panel noted that “[t]he Planning Board approved the proposed development, but
conditioned its approval on Bi-County satisfying fifty-seven conditions, several of which
remained unsatisfied when DEP issued the general permits and transition area waiver,”
including “the County Planning Board’s approval of the site plan and issuance of all
necessary DEP approvals, both of which the MLUL requires.” Id. at ___ (slip op. at 18).
The panel also stressed that “the 2007 approval was for the development of 209 units,” but
that DEP requirements resulted in a reduction to 204 units, and emphasized that “[t]he 2007
approval required Bi-County to return for amended site plan approval if DEP imposed
additional conditions or other restrictions on the proposed development, which the DEP did
here.” Ibid. Thus, the panel concluded, “the 2007 approval was not a 'final approval’
because Bi-County had not received 'all final approvals required pursuant to the [MLUL],’
and final site plan approval for 204 units.” Id. at ___ (slip op. at 18-19) (quoting Exemption
17).

        The Appellate Division also affirmed determinations that led to the DEP’s decision to
grant the general permits, but plaintiffs petitioned for certification only as to the applicability
of Exemption 17. The Court granted that petition.  234 N.J. 208 (2017).

HELD: The judgment of the Appellate Division is affirmed substantially for the reasons
expressed in the per curiam opinion. The Court adds modifying comments to clarify that the
affirmance is based solely on a plain language reading of the Highlands Act that does not
incorporate the definition of “final approval” contained in the separate but related MLUL.

1. The Court does not read the Appellate Division decision to have meant to engraft the
meaning of “final approval” under the MLUL onto the Highlands Act’s differing language
that references instead “all final approvals.” (p. 6)
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2. To be clear, “all final approvals” in the Highlands Act is the operative phrase to be
applied when examining whether the DEP erred in determining that Exemption 17 had not
expired for the Bi-County development project. In this instance, when making its
administrative determination, the DEP was well within its bounds to conclude that Bi-County
had not yet secured all final approvals and, as a result, the three-year expiration period had
not been triggered. The Appellate Division correctly affirmed that administrative decision,
which necessarily involved construction and application of the Highlands Act. (p. 6)

3. In order that there not be room for misunderstanding, the Court modifies the Appellate
Division’s thorough analysis of “all final approvals” in the setting of this matter. With the
very clear literal difference between the MLUL’s defined term, “final approval,” and the
terminology in Exemption 17 of the Highlands Act, there is no basis to equate the two when
deciding this case. The Highlands Act’s reference is not to the definition of “final approval”
under the MLUL. The Court will not rewrite the Legislature’s words. (pp. 6-8)

4. The Court’s interpretation of the Highlands Act’s language should not be exported to
MLUL controversies. The Court makes no findings about the finality of approval for
purposes of the MLUL when conditions are imposed on a project by a planning board. (p. 8)

       AFFIRMED AS MODIFIED.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON,
FERNANDEZ-VINA, SOLOMON, and TIMPONE join in this opinion.




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       SUPREME COURT OF NEW JERSEY
             A-
32 September Term 2017
                       079963


              N.J. Highlands Coalition
               and Sierra Club, N.J.,

               Petitioners-Appellants,

                         v.

New Jersey Department of Environmental Protection
        and Bi-County Development Corp.,

             Respondents-Respondents.

      On certification to the Superior Court,
  Appellate Division, whose decision is reported at
      ___ N.J. Super. ___ (App. Div. 2017).

      Argued                      Decided
  November 7, 2018            December 13, 2018


Edward Lloyd argued the cause for appellants (Columbia
Environmental Law Clinic, Morningside Heights Legal
Services, attorneys; Edward Lloyd and Susan J. Kraham,
on the briefs).

Lewin J. Weyl, Deputy Attorney General, argued the
cause for respondent New Jersey Department of
Environmental Protection (Gurbir S. Grewal, attorney;
Melissa H. Raksa, Assistant Attorney General, of
counsel, and Kristina Miles, Deputy Attorney General, on
the brief).




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            Richard J. Hoff, Jr., argued the cause for respondent Bi-
            County Development Corp. (Bisgaier Hoff, attorneys;
            David R. Oberlander, on the brief).


                                  PER CURIAM


      The Appellate Division judgment under review affirmed several actions

by the State Department of Environmental Protection (DEP) with regard to

property in the Borough of Oakland that is subject to the Highlands Water

Protection and Planning Act (Highlands Act),  N.J.S.A. 13:20-1 to -35. N.J.

Highlands Coal. v. DEP, ___ N.J. Super. ___ (App. Div. 2017). We granted

the petition for certification filed by plaintiffs, the N.J. Highlands Coalition

and the Sierra Club, N.J., to review only the determination that the property

owner -- Bi-County Development Corporation (Bi-County) -- qualified for the

exemption allowed under the Highlands Act for the construction of affordable

housing projects,  N.J.S.A. 13:20-28(a)(17) (Exemption 17).  234 N.J. 208

(2017). The issue on which we granted certification requires interpretation of

Exemption 17’s language concerning expiration of its safe harbor.

      We now agree with the Appellate Division, and the DEP, that this

project may proceed under Exemption 17 because its qualification has not

expired. We affirm the judgment of the Appellate Division substantially for

the reasons expressed in the published decision of the panel. We add the


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following modifying comments to clarify that the affirmance is based solely on

a plain language reading of the Highlands Act that does not incorporate the

definition of “final approval” contained in the separate but related Municipal

Land Use Law (MLUL),  N.J.S.A. 40:55D-1 to -163.

                                        I.

      Exemption 17 provides that a project shall be exempt from the

Highlands Act’s requirements if it is

            a major Highlands development located within an area
            designated as Planning Area 1 (Metropolitan), or
            Planning Area 2 (Suburban), as designated pursuant to
            L. 1985, c. 398 (C. 52:18A-196 et seq.) as of March 29,
            2004, that on or before March 29, 2004 has been the
            subject of a settlement agreement and stipulation of
            dismissal filed in the Superior Court, or a builder’s
            remedy issued by the Superior Court, to satisfy the
            constitutional requirement to provide for the fulfillment
            of the fair share obligation of the municipality in which
            the development is located. The exemption provided
            pursuant to this paragraph shall expire if construction
            beyond site preparation does not commence within
            three years after receiving all final approvals required
            pursuant to the “Municipal Land Use Law,” L. 1975, c.
            291 (C. 40:55D-1 et seq.).

            [N.J.S.A. 13:20-28(a)(17).]

      The property at issue here has an extended history, but neither party

disputes that an earlier settlement concerning this development project, which

occurred in 1991, renders the development an affordable housing project

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eligible to qualify for carve-out from the Highlands Act requirements under

Exemption 17. The dispute centers on the meaning of the exemption’s

expiration language that rescinds exemption “if construction beyond site

preparation does not commence within three years after receiving all final

approvals required pursuant to the [MLUL].”

      Petitioners argue that Exemption 17 incorporates the MLUL definition

of “final approval” and that the Appellate Division’s discussion of how that

definition applies will risk unsettling certain land use law under the MLUL.

Under the MLUL, “final approval”

            means the official action of the planning board taken on
            a preliminarily approved major subdivision or site plan,
            after all conditions, engineering plans and other
            requirements have been completed or fulfilled and the
            required improvements have been installed or
            guarantees properly posted for their completion, or
            approval conditioned upon the posting of such
            guarantees.

            [N.J.S.A. 40:55D-4.]

      The DEP disputes that its application of the Highlands Act’s Exemption

17 in this matter is in tension with case law concerning final approval under

the MLUL and, further, emphasizes that the plain language of the Highlands

Act refers to “all final approvals required pursuant to the [MLUL].” The DEP

also underscores the specificity of the rather unique facts in this matter.



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      Bi-County agrees with the DEP about the uniqueness of the facts in this

matter and, importantly, stresses that the appeal involves not an interpretation

of the MLUL but instead an interpretation of the words contained in

Exemption 17 of the Highlands Act.

                                        II.

      In affirming the DEP’s administrative determination, the Appellate

Division deferred to the agency’s finding that, under the Highlands Act, not all

final approvals for this project had been obtained. The panel cited well-settled

administrative law in stating the principles that guided its review in this

matter. N.J. Highlands Coal., ___ N.J. Super. at ___ (slip op. 16-17).

      In explaining its decision, the panel noted that the property owner had

sought and obtained both preliminary and final site plan approval from the

Oakland Planning Board at the same time; however, the approval came with

conditions -- fifty-seven to be precise. Id. at ___ (slip op. at 18). Several

conditions remained unsatisfied when the DEP ruled on whether Exemption 17

still pertained to Bi-County’s property. Ibid. Importantly, as the Appellate

Division noted, two conditions were of particular significance because they

required Bi-County to obtain additional approvals, from the County Planning

Board in one instance and from the DEP in another, if certain changes

occurred -- and those changes did take place. Ibid. Accordingly, the panel


                                        5
referred to the Planning Board’s preliminary and final site plan approval as

“not a 'final approval’” in reasoning that Bi-County had not obtained “all final

approvals required pursuant to the [MLUL]” as Exemption 17 prescribes. Id.

at ___ (slip op. at 18-19).

      Although the panel’s discussion intertwined references to the MLUL and

the Highlands Act’s Exemption 17, we do not read the Appellate Division

decision to have meant to engraft the meaning of “final approval” under the

MLUL onto the Highlands Act’s differing language that references instead “all

final approvals.”

      To be clear, “all final approvals” in the Highlands Act is the operative

phrase to be applied when examining whether the DEP erred in determining

that Exemption 17 had not expired for the Bi-County development project. In

this instance, when making its administrative determination, the DEP was well

within its bounds to conclude that Bi-County had not yet secured all final

approvals and, as a result, the three-year expiration period had not been

triggered. The Appellate Division correctly affirmed that administrative

decision, which necessarily involved construction and application of the

Highlands Act. We do as well.

      The prolonged history involved with this development project and its

unusual facts combine to make the issue in this matter likely a “universe of


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one,” as the parties suggest. Nevertheless, in order that there not be room for

misunderstanding, we modify the Appellate Division’s thorough analysis of

“all final approvals” in the setting of this matter. The plain language of the

Highlands Act requires “all final approvals” to have been obtained in order to

trigger the three-year period after which the exemption is lost if “construction

beyond site preparation” is not accomplished.  N.J.S.A. 13:20-28(a)(17)

(emphasis added). The Legislature used the plural form when referencing

“approvals” and further emphasized that there is not just one “final approval”

for purposes of Exemption 17 by adding the word “all” to underscore that

point. We do not see in Exemption 17’s distinctly different language a

legislative intent to import the MLUL definition of “final approval.”

      We ascribe to the Legislature an intent that all of its words have

meaning. In re Attorney Gen.’s “Directive on Exit Polling: Media & Non-

Partisan Pub. Interest Grps.”,  200 N.J. 283, 297-98 (2009) (“We must presume

that every word in a statute has meaning and is not mere surplusage, and

therefore we must give those words effect and not render them a nullity.”).

With the very clear literal difference between the MLUL’s defined term, “final

approval,” and the terminology in Exemption 17 of the Highlands Act, we see

no basis to equate the two when deciding this case. The Highlands Act’s

reference is not to the definition of “final approval” under the MLUL and we


                                        7
will not rewrite the Legislature’s words. DiProspero v. Penn,  183 N.J. 477,

492 (2005).

      Moreover, and conversely, our interpretation of the Highlands Act’s

language should not be exported to MLUL controversies. We have concluded

that the present specific matter is controlled by the Highlands Act’s language.

We have interpreted its language to be distinct from the defined term, “final

approval,” in the MLUL. That distinction should prevent this decision from

having an impact on application of the defined term, “final approval,” in the

MLUL context. We make no findings about the finality of approval for

purposes of the MLUL when conditions are imposed on a project by a planning

board.

      As modified, the judgment of the Appellate Division is affirmed

substantially for the reasons expressed therein.



      CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, FERNANDEZ-VINA, SOLOMON, and TIMPONE join in this
opinion.




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