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SJC Builders, LLC v. State of New Jersey Department of Environmental Protection

378 N.J. Super. 50, 874 A.2d 586 (App. Div. 2005)

ZONING; SUBDIVISIONS; OWNERSHIP; SEPTIC SYSTEMS — When evaluating an application for a sewage disposal permit, it is reasonable for the New Jersey Department of Environmental Protection to consider land as a single property when owned by a single owner even if the development plan is based on creating multiple, subdivided lots still controlled by one entity.

A land development company owned two lots on which it was going to build an age restricted community consisting of thirty-one housing units. The developer wanted to subdivide the property into eight smaller lots, and build several units on each lot. The multiple subdivisions were to share an individual subsurface sewage disposal system. The developer applied to the municipality’s planning board for site plan and subdivision approval, which the board granted. It then applied to the municipal health officer for a permit to install eight septic systems on the property. Pursuant to state regulation, the officer was only permitted to decide applications for septic systems discharging up to two thousand gallons of sewage a day. Although each system that the developer wished to install discharged less than two thousand gallons of sewage a day, the aggregate of all eight systems discharged sewage in excess of two thousand gallons. Therefore, the officer concluded that the application was out of his jurisdiction and referred the matter to the New Jersey Department of Environmental Protection (DEP). The developer applied to the DEP for a permit to install the septic systems, which the DEP denied on the basis that the multiple disposal systems would discharge sewage far in excess of two thousand gallons, which was too much for one property. The developer appealed, arguing that the DEP erred in determining that the land was a single lot. According to the developer, the project should have been treated as eight separate subdivisions, each controlled by a separate condominium association, and therefore as eight separate properties. Further, the developer contended that the DEP’s working definition of “property” was unlawful because it was not consistent with how the term is defined in the New Jersey Pollution Discharge Elimination System (NJPDES) regulations.

The Appellate Division affirmed the DEP’s ruling. In reaching its decision, the Court found that the DEP’s working definition of the term “property” was proper. Under the NJPDES regulations, “property” is defined as “all of the contiguous block(s) and lot(s), including vacant land owned or otherwise under the control of the owner or operator of the regulated facility, upon which a discharge is conducted or controlled as a result of the operation of a facility.” In applying this definition, the Court held that the DEP properly determined that the proposed community consisted of only one property because, at the time of the application, each subdivision was owned and controlled by the company. As a result, the Court concluded that the DEP’s working definition of the term “property” was reasonable. It further held that although ownership of the land would eventually be divided among several entities, at the time of the application the land was solely owned by the developer and therefore was rightfully deemed a single property.


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