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In re Permit Application for Harbor Reef Townhouse Development

A-5881-97T3 (N.J. Super. App. Div. 2001) (Unpublished)

WETLANDS—Wetlands are properly encompassed within the term “waters” and not within the term “lands” when applying infill regulations.

Neighbors and nearby land owners objected to the issuance of certain environmental permits that would permit the development of 103 townhouses on a 47-acre site. One of the issues was whether the Department of Environmental Protection (DEP) misapplied the governing infill (percentage of developed land) requirements. The particular regulation on review read, in part: “[a] majority of the perimeter of this site, excluding wetlands or surface water areas or land areas abutting limited access transportation corridors ... is adjacent to or across a public road or railroad from land that is developed, or a majority of the land within 1,000 feet of the site is developed . . . . (emphasis supplied).” According to the Court, this rule “sets forth two prongs for demonstrating that a proposed site would meet the infill requirement for a high-development potential. The first prong (‘prong (a)’) requires that the majority of the perimeter of the site, excluding wetlands and surface water areas, has to be immediately adjacent to developed property. The second prong (‘prong (b)’), requires that a majority of the land within 1000 feet is developed. It [was] the application of prong (b) which [was] in dispute.” Essentially, the objectors argued the presence of express language “excluding wetlands or surface water areas” under the perimeter criteria in prong (a) coupled with the lack of such language under the area criteria in prong (b) demonstrated that the plain reading of prong (b) was to include wetlands or surface water when measuring the amount of existing development on neighboring lands. The DEP argued that the term “land” in prong (b) of the regulation was not intended to include wetlands because, for regulatory purposes, the term wetlands was commonly considered to be encompassed within the term “waters” and not within the term “lands.” Consequently, the DEP concluded that because “wetlands are properly treated as waters, wetlands should not be encompassed within the term ‘land’ as used in prong (b) infill requirement.” To support that interpretation, the DEP pointed to prong (a) and argued that since the term “perimeter” provides no distinction among the terms lands, wetlands, or waters, the regulatory meaning of “land” excludes both wetlands and surface water areas. Therefore, the DEP asserted that the explicit use of the phrase “excluding wetlands or surface water areas,” while necessary to “effect the exclusion under the perimeter exclusion under prong (a), would constitute mere surplusage under the area criterion in prong (b).” The Court found that the arguments showed the regulation was ambiguous, but without any legislative history on the issue, it held that the DEP’s interpretation of the regulation was the more reasonable one. Under the Farmland Conservation Regulations, contiguous areas of twenty acres or more with soils in certain classifications are required to be maintained for farming unless the farm-dependent purposes are not economically feasible. Consequently, the objectors raised a question as to whether the area sought to be developed was subject to the Farmland Conservation Regulation and therefore should have been maintained or protected for “open space or farming purposes” or “farm-dependent uses.” Measurement of such spaces includes contiguous space even if separated by human-made barriers or structures or legal boundaries. It wasn’t disputed that over 100 contiguous acres of the requisite soil type existed adjacent to the proposed project. The parties disagreed, however, whether forested freshwater wetlands and areas that were not actively farmed prevented the inclusion of the wetlands area as part of the contiguous land. If the wetlands were not included, then there would not have been the requisite twenty contiguous acres to meet the criteria for a Farmland Conservation Area. The DEP determined that the wetlands area comprised a break in continuity and constituted an area that was not actively farmed and unsuitable for farming. Also, the DEP found that a portion of the land was habitat for the red-shouldered hawk and Cooper’s hawk, which made that area an exceptional resource value. As such, any applicants seeking to convert the area to farming use would have had to show a “compelling public need” for such farming use in that location. Based on the unlikelihood that an applicant would obtain such a permit, the DEP determined not to count the area within the necessary contiguous land for protection under the Farmland Conservation Area. The Court found the DEP’s interpretation to be consistent with the purpose of the Farmland Conservation Areas rule, because the reason for the rule is to provide that those “areas which are of sufficiently large scale to make farming feasible should be reserved for farming purposes” (emphasis added). Hence, the Court was in accord with the DEP’s conclusion that the purpose of the Farmland Conservation Act rule would not be advanced by precluding residential development on a small portion of twelve acres which was isolated from more than 100 acres and may not be feasible for farming. Lastly, the objectors argued that the DEP improperly classified a very small swale in a way that made it ordinary land and not land that would have been an exceptional resource value such as the wetlands surrounding the swale. A “swale” is a linear topographic depression, either naturally occurring or of human construction, which drains less than 50 acres. A swale cannot be within a larger wetland complex and generally cannot include wetland features over 50 feet in width at the water’s point. The objectors argued that the way the particular swale divided the wetland made it part of a “larger wetland complex.” The Court disagreed, because the swale in question was not surrounded on all sides by the wetland. It was a narrow isosceles triangle approximately 100 feet in length and 50 feet at the base. It intruded into uplands and was essentially within the uplands portion of the site. Such swales are normally freshwater wetlands of “ordinary resource value,” but they have “exceptional resource value if they serve as a ‘present’ or ‘documented’ habitat for a threatened or endangered species.” As such, the objectors argued that the swale, merely because it was at a lower elevation at the wetlands, did not prevent great blue heron from foraging there just as they foraged in the wetlands. The Court pointed out that the objectors “overlook[ed] the difference in vegetation with only the swale being forested, and fail[ed] to address the expert opinions the DEP cited that the great blue heron rarely, if ever, feed in densely vegetated areas.”

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