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In Re Resolution of New Jersey Pinelands Commission No. PC4-07-37

A-5656-06T2 (N.J. Super. App. Div. 2008) (Unpublished)

WETLANDS; ENVIRONMENTAL PERMITS; DUE PROCESS — Where an environmental permitting authority abuses its discretion by taking an extraordinary length of time to respond to a property owner’s applications and communications, such as eight years or more, the authority violates the property owner’s due process right to be heard on a timely basis and in a meaningful manner.

A landowner built a house on its 20 acre property. It had a septic system, a garage, tennis court, deck, and gazebo. When completed, the owner sought a certificate of occupancy (CO) for the premises, but met constant objections from the New Jersey Pinelands Commission on the grounds that the structures encroached on wetlands and on wetland buffer zones. Nonetheless, permits had been granted for the house and septic system five years after the home was finished. The Commission issued a report recommending that development of the proposed dwelling be denied. In response to a Commission’s letter asking him to “restore the site,” the owner submitted engineering reports showing a sufficient wetlands buffer. The owner next heard from the Commission eight years later when the Commission filed an action alleging that the owner’s house, septic system, and driveway were built in wetlands or wetland buffer areas. The lower court found that while the owner had not obtained building permits for any of the structures other than the house, septic system, and garage, if the existing construction had no real effect on the wetlands, the owner was entitled to a stay of an order directing action and could seek a waiver from the Commission to allow the improvements to remain. The owner submitted his waiver application to the Commission with proofs that the structures would not impact the wetland buffers. The Commission did not respond for two and one-half years when the Director of its regulatory programs then sent a letter denying the waiver application. The letter suggested that the improvements on the property resulted in a “significant adverse impact.” The lower court directed that the owner should have the right to a review of the Director’s letter even though the owner had received late notice of a proposed adoption date of the Director’s decision and had chosen not to contest a submitted draft resolution memorializing the Director’s decision which was later adopted. The owner appealed the Commission’s findings.

In the appeal, the Appellate Division took the uncommon step of exercising original jurisdiction and reversed the Commission’s decisions and ordered that a CO be issued. It chastised the Commission for its untimeliness on the waiver application and found that the Commission had deprived the owner of his due process right to be heard on a timely basis and in a meaningful manner. The Court found the Commission abused its discretion given the extraordinary length of time the owner had been attempting to provide information and secure a hearing, and given the Commission’s failure to address the application timely. It also noted that the Commission failed to properly consider a survey that showed the owner’s structures occupied only a small percentage of the twenty-acre property, and it was struck by the Commission’s lack of timeliness in view of its claim that the wetlands were so significantly affected by the development.

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