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In Re Riverview Development, LLC

411 N.J. Super. 409, 986 A2d. 714 (App. Div. 2010)

WATERFRONT PERMITS; APPEALS — To appeal the issuance of a waterfront permit by the Department of Environmental Protection, a third party must demonstrate a particularized property interest sufficient to require a hearing on either constitutional or statutory grounds because an obligation imposed on the Office of Administrative Law to review concerns that are not unique to the objector would cause the process of permit applications by state agencies to be come bogged time by time-consuming and costly formal hearings.

A developer acquired several vacant lots along the banks of the Hudson River and filed an application with the NJ Department of Environment Protection (DEP) for a waterfront development permit. The DEP permit, if approved, would have authorized the developer to build a residential housing complex. As proposed, the new complex would have consisted of seventeen townhomes along a 1,150 foot riverside walkway; a two-floor parking structure; and three high-rise towers. The towers would rise to a maximum height of ninety-five feet. At the request of a neighboring townhome association, the DEP conducted a public hearing giving neighboring property owners a chance to present their objections and concerns.

Under relevant regulations, the proposed high rise towers to the maximum extent practicable were not permitted to block the view of a skyline from existing residential structures, public roads or pathways. Additionally, the proposed structures were not permitted to have an adverse impact on traffic. To address these requirements, the DEP requested a “view shed” analysis from the developer to depict the anticipated views of the proposed project from various nearby locations. The developer also submitted a traffic engineering report. The DEP observed that the subject site was located in an urban area where high-rise developments were common. Additionally, as to traffic considerations, the DEP found that the adjacent street system, with its scheduled improvements, would not be significantly operationally degraded and traffic standards would not suffer. At a hearing, the association’s planning expert testified that the high-rises would block all views of the New York skyline from a main road and would require a variance from municipal zoning requirements. Another townhome expert, after studying a “view shed” analysis, said the project would eliminate a substantial number of views of the skyline for homes located on the north end of a specific avenue, but that much of the skyline still would be visible along the rest of the development through gaps in the towers. A townhome expert’s traffic report indicated the project would cause below acceptable degradation in traffic flow from the proposed complex.

The DEP approved the application and issued the waterfront permit. It released an accompanying environmental report detailing why it believed the project complied with the relevant regulations. The DEP concluded the proposed high-rise towers were designed to preserve most of the skyline views and river views from nearby residential structures. The final report also found the project’s traffic impact acceptable, given that a new roadway would be constructed. The townhome association appealed the permit approval to the DEP’s Commissioner, requesting a full adjudicatory hearing on the matter in the Office of Administrative Law (OAL). The Commissioner denied the hearing request, ruling that a third party either has to demonstrate a statutory right to a hearing or show that it has a constitutionally protected property interest affected by the grant of a permit. The Commissioner found that the association’s claims of decreased property values, as well as its general complaints of loss of views and increased traffic, failed to demonstrate a particularized property right or special interest. The association appealed the Commissioner’s procedural denial of an adjudicatory hearing.

The Appellate Division affirmed the Commissioner’s ruling, saying the New Jersey Legislature clearly intended to prevent the processing of permit applications by state agencies from being bogged down by time-consuming and costly formal hearings in the OAL. That’s why the law requires a third-party to demonstrate a particularized property interest sufficient to require a hearing on constitutional or statutory grounds. The Court said the townhome owners, in the absence of an enforceable deed restriction or easement, did not have an exclusive proprietary interest in, or right to, an unobstructed view of the river and skyline. The Court also said the DEP’s relevant regulations qualified any right to a scenic view by the phrase “to the maximum extent practicable.” Lastly, the Court agreed with the DEP that the association’s concerns about the impact on traffic was not related to a particularized property interest because any traffic impact would not be unique to the townhome residents. The Court was mindful of the association’s overall concerns, but felt those concerns received substantial attention in the administrative process within the DEP, short of a trial-type OAL hearing.

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