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Residuary Trust of Anthony Pio Costa, II v. Department of Environmental Protection

A-4330-96T5 (N.J. Super. App. Div. 1998) (Unpublished)

ENVIRONMENTAL REGULATIONS—For the purpose of the “zero net fill rule” as applied to the Central Passaic Basin, the baseline level is to be measured as of March 25, 1977.

A DEP regulation, known as the “zero net fill” rule prohibits introduction of new fill into the Central Passaic Basin after a certain date. In its original form, adopted in 1984, it was unclear as to what ground level elevation would be used as the base level in determining whether or not fill and/or structures could be legally placed or constructed in the flood plain. In 1995, the rule was changed to clarify that the appropriate measuring date would be March 25, 1977. Prior to the change in the rule, no specific date was given. The dispute in this case was whether, under the prior regulation, the base measurement should be made as of 1929, which was the year that the Stream Encroachment Program began, or as of March 25, 1997, when the “zero net fill rule” was adopted. This issue was clouded by the existence of a twenty-percent fill rule which addressed statewide flooding and which historically had used 1929 as its benchmark year. In addition, during the process by which the revised regulation was adopted, the DEP erroneously responded to a comment by stating that 1929 had been used as the base year under the “zero net fill” rule as well as under the twenty-percent fill rule.

Evidence adduced during the fact finding process showed that the DEP had never used 1929 as the base year for the “zero net fill” rule and had always used 1977 as the base year. The Court would not codify the error made by the DEP during the regulatory comment period and pointed out that the applicant had never detrimentally relied on that error. Consequently, the “zero net fill” rule, from the time of its original adoption, uses March 25, 1977 as its measuring date.


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