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Tanurb v. New Jersey Department of Environmental Protection

363 N.J. Super. 492, 833 A.2d 670 (App. Div. 2003)

ENVIRONMENTAL PERMITS—The Legislature apparently intended that applicants rule out reasonable alternatives before a wetlands permit can be issued and it is therefore permissible for the Department of Environmental Protection to use general terms such as “sufficient design” instead of precisely defining what constitutes a reasonable alternative.

A developer bought land intending to build a retail shopping center. The purchase was made after the Fresh Water Wetlands Protection Act was enacted, but before its effective date. Its environmental consultants delineated less than one acre as fresh water wetlands. The developer applied to the Army Corps of Engineers for permission to fill much of those wetlands. The Corps gave its approval subject to the developer obtaining a letter of interpretation from the New Jersey Department of Environmental Protection (DEP) verifying the wetlands boundaries. When the developer applied to the DEP, the DEP determined that the site had 2.4 acres of wetlands. Consequently, the developer applied for a transition area waiver-averaging plan to modify the standard transition which would have been required around the middle portion of the wetlands. The DEP granted the application conditioned on the developer “recording a deed restriction prohibiting further disturbance of the modified transition area.” This allowed the developer to build a smaller project and left about 1.35 acres of wetlands. The developer built that project, but hoped to develop the remaining wetlands “despite his promise to enhance their quality through planting programs.” The developer subsequently mistreated the wetlands and failed to record the required deed restriction.

Three years later, the developer applied to DEP to expand the retail center. The application was denied because, among other reasons, the developer failed to file the deed restriction and failed to prove a compelling public need for further development. It did not appeal from that ruling. Six years later, the developer submitted another application that was the subject of this case. It wanted to expand the shopping center which would have resulted in an elimination of all but 0.33 acres of fresh water wetlands, complaining that the existing site was “effectively bisected by the impaired wetlands in question, creating a ‘disjointed’ environment.” It offered evidence that “some its tenants wanted larger space and a physically integrated shopping center… .” However, its own testimony showed that its financial return would increase only very slightly. Although the developer introduced proof that the wetlands had been compromised, “there was substantial evidence that [the developer itself] contributed to the deterioration… .” The application was denied.

On appeal, the developer contended “that the statutory criteria for issuance of permits are unconstitutionally vague,” and that the DEP commissioner’s findings were arbitrary, capricious and unreasonable. Specifically, it argued “that the statute’s provisions allowing fresh water wetlands permits only if there is ‘no practicable alternative’ and where there is a ‘minimum feasible alteration or impairment of the aquatic ecosystem’ are standards ‘impossible to apply with any uniformity and objectivity.’” The statute in question, however, lists nine criteria for the issuance of fresh water wetlands permits. According to the Court, “[a] statute is presumed to be constitutional and will not be declared void unless it is clearly repugnant to the Constitution. ... Furthermore, ‘the burden is on the party challenging the constitutionality of the statute to demonstrate clearly that it violates a constitutional provision.’ ... A statute is unconstitutionally vague ‘if it is couched in terms’ so vague that men [and women] of common intelligence must necessarily guess at its meaning and differ as to its application.’”

The Court understood that use of such terms in the statute such as “convenience,” “direct” and “sufficient design” are probably “necessary in order to avoid narrow distinctions which, in a given case, might lead to technical compliance with the Act, but nevertheless frustrate the fair treatment which legislature required. When the statutory objectives involve goals such as fairness and equity, specific draftsmanship which would be admirable when used in a document such as the Internal Revenue Code, may simply be inappropriate.”

With that in mind, the Appellate Division believed that “the Legislature apparently intended to create a difficult hurdle for permit applicants to meet, essentially requiring them to rule out all other reasonable alternatives before a fresh water wetlands permit would be granted.” It might be difficult to “precisely define what a reasonable alternative might mean in every case,” but as to this particular statute, the Court believed that “the general terms used sufficiently directed the administrative agency’s action; consequently, the constitutional challenge to the statute must be rejected.” The Court also rejected the developer’s argument that the Commissioner’s decision was arbitrary, capricious, and unreasonable.


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