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Beattystown Community Council v. Department of Environmental Protection

313 N.J. Super. 236, 712 A.2d 1170 (App. Div. 1998)

DEVELOPERS; HISTORIC DISTRICTS—In reviewing development plans, the State Historic Sites Counsel is not required to consider decisions interpreting the National Historic Preservation Act, the National Environmental Protection Act, or the Transportation Act.

A developer obtained local approvals to build a large shopping center slightly overlapping a historic district. At the public hearings before the Historic Sites Council, an advisory body empowered to make recommendations to the Department of Environmental Protection (DEP), the hearing examiner ruled that the council need not consider the State Development and Redevelopment Plan in making its recommendations related to the application. After further testimony was taken and certain changes were made to the road improvements, the DEP granted its approval. A local citizen’s group opposed the developer’s application and appealed the DEP’s decision to the courts. In its appeal, it contended that the DEP: (1) failed to require exploration of “prudent and feasible alternatives” to avoid the encroachment on the historic district; (2) failed to consider the State Development and Redevelopment Plan in making its decision; and (3) otherwise acted arbitrarily and capriciously in granting approval.

In reaching its decision, the DEP considered alternatives to a signalized and widened intersection. The State concluded that the public benefit of the changes proposed by the developer were clearly related to the need to make traffic safety improvements and that the proposed improvements lessened adverse impacts on the district without eliminating or unreasonably reducing the safety aspects of the road improvements. The Court refused to overturn what it called a “presumptively reasonable decision” comporting with statutory mandate and regulatory directions. It also rejected the community council’s argument that in deciding whether or not “feasible and prudent alternatives” existed, the DEP should have relied on decisional law interpreting certain federal regulations and statutes. The complainants argued that both state and federal historic-preservation statutes “are intended to be parallel in their applications and are similar in intent.” The Court disagreed, believing that New Jersey law was clearly different than the National Historic Preservation Act and that New Jersey law does not direct emulation of any of the three federal legislative schemes that were asserted by the complainants. In the Court’s view, the New Jersey version of reviewing “feasible and prudent alternatives” was reasonable.

The community council also argued that the DEP’s decision was in error because it failed to judge the application according to standards set forth in the State Development and Redevelopment Plan. The Court, however, opined that use of the State Plan as an overlay on decisions vested by law in municipal agencies is different than its use to affect decisions delegated to State agencies. An Executive Order promulgated under the State Plan was designed to eliminate the tension created between the State Plan and local decisions on zoning. Inasmuch as the DEP is a state agency and not a municipal board, such a potential conflict simply did not exist in this case. The State Plan is not a regulation, but a policy guide for State, regional and local agencies to use when they exercise and delegate authority. It is not designed to regulate and should not be applied to the future use or intensity of use of specific parcels of land. Consequently, the Court concluded that there was no basis for applying the State Plan to the specific application. While the State Plan may be applicable to overall planning efforts, the same does not seem to be true in regard to individual applications. Basically, the Court did not find the DEP’s decision to be arbitrary and capricious. In its words, “[w]here there is room for two opinions, action is [valid] when exercised honestly and upon due consideration, even though it may be believed that an erroneous conclusion has been reached.”


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