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August 16, 2007 Determination of NJDEP of Exemption from the NJ Highlands Water Protection

414 N.J. Super. 592, 999 A.2d 1168 (App. Div. 2010)

HIGHLANDS ACT — The Department of Environmental Protection is entitled to define “reconstruction” and “footprint” so long as its definition is consistent with the legislative intent behind the Highlands Water Protection and Planning Act.

A church acquired a one hundred acre lot within the Highlands preservation area. The lot included approximately 17.18 acres of preexisting impervious surface that had been developed with a two story office building, a one story industrial building, a garage/maintenance building, paved driveways, parking areas, a ball field, a sanitary pump-station, and a well. Previously, about 20 acres of wetlands had been filled at a time when the United States Army Corp of Engineers had jurisdiction over the filing of wetlands permit. There were no outstanding citations or enforcement proceedings.

The church wished to convert the developed property into a church campus, consisting of a sanctuary, elementary school, gymnasium, recreational fields, administrative offices, and dining areas all serviced by parking areas and internal roadways. The campus was to be located in substantially the same location as the existing buildings, but would be slightly smaller than the existing development, decreasing the total impervious surface from 17.18 to 17.02 acres. The church did not intend to disturb any of the remaining undeveloped land on the property. Pursuant to its successful application before the municipal planning board for development (in which it showed the reconstruction would provide social and cultural benefits and reduce the negative environmental impact the previous industrial use had on the site), the church successfully obtained, from the New Jersey Department of Environmental Protection (DEP), an exemption from the provisions and regulations of the Highlands Water Protection and Planning Act as a reconstruction project with a similar footprint. The DEP’s review included discussions with the church’s engineer, a site visit, an investigation into the filled wetlands on the property, and public comments on the proposal. The municipality challenged the DEP’s conclusion that the church’s proposed project was exempt from the Highlands Act.

The Appellate Division affirmed the DEP’s ruling. It examined the Act’s relevant statutory language which exempted the reconstruction of any building or structure for any reason if within 125% of the footprint of a lawfully existing impervious surfaces on the site, provided the reconstruction did not increase the impervious surface by one-quarter acre or more. The Court also examined the site plans to determine whether the project was, indeed, a reconstruction project. It found that the project could reasonably be considered a reconstruction of existing structures, dedicated to a new use, and not the construction of a new development without any meaningful ties to what previously existed. The Court next affirmed the DEP’s interpretation that the church project had to be within 125% of the footprint of all lawfully existing impervious surfaces on the site (e.g. paver blocks, gravel, decks, patios), and not just buildings. The Court cited to the legal definition of impervious surface under the Act and, under this definition, the church’s proposed campus would result in a 6,574 square foot reduction in impervious surface area. Additionally, when calculating the existing boundaries of all impervious surfaces as compared to the proposed reconstruction, the Court found that the DEP reasonably concluded the reconstruction would be less than 125% of the footprint of the existing surface. Lastly, the Court rejected the municipality’s argument that twenty acres of wetlands in the original property should not have been considered lawfully existing impervious surface on the site when making this calculation. The Court referred to a record that was devoid of any evidence that the original owner was ever issued a citation or a notice of violation by any federal agency for unlawfully filling the wetlands.

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