Skip to main content

W.E.W. Associates v. Township of Randolph

A-233-01T3 (N.J. Super. App. Div. 2003) (Unpublished)

ZONING; WETLANDS; LETTERS OF INTERPRETATION—A zoning board can’t consider whether a wetlands Letter of Interpretation issued by the Department of Environmental Protection was supported by the evidence because such a letter is dispositive of the issue.

A developer sought to subdivide a former summer bungalow colony. All of the proposed lots conformed with the municipality’s standards. “The tract, however contain[ed] a large amount of area designated as wetlands…” which made it subject to regulation by the Department of Environmental Protection (DEP). The DEP issued a Letter of Interpretation [LOI] delineating the freshwater wetlands boundaries on the site. Nonetheless, the municipality’s planning board accepted significant testimony and engaged in a great deal of discussion as to whether the DEP’s Letter of Interpretation was correct. It also entertained a great deal of testimony as to whether the DEP could grant certain waivers that would be needed to actually construct the proposed project. Even though the board’s own counsel “advised that the Board had no jurisdiction over the [LOI]; that instead its authority was limited to determining whether township zoning ordinances and subdivision requirements were met,” the Board denied the application, “going outside the LOI in surmising the possibility of additional ‘significant’ wetlands on site, all of which would be adversely impacted by the development as proposed, and predicting that the transition area waivers would be denied by DEP.” The applicant successfully appealed to the Law Division and that lower court held that “‘under the circumstances of this case there ha[d] been a clear abuse of discretion by the Board,’ as well as a failure to follow the laws regarding the DEP’s role in administering and enforcing the Wetlands Act.” Fundamentally, the lower court stated: “That means one very simple thing. And it is that the Board had absolutely no right to decline to accept the delineation of wetlands” as contained in the LOI originally issued by the DEP and the Appellate Division concurred in this view. The Appellate Division also supported the lower court when the lower court said “[i]t was, therefore, ‘simply not open to the Board to speculate or to conclude that there are wetlands more extensive than those shown in the letter of Interpretation. And it does not matter that the experts cited by the Board suggested that the Letter of Interpretation might be wrong.” It was clearly an error for the Board to substitute its judgment for that of the DEP. As a result, the lower court, as upheld by the Appellate Division, remanded the matter to the planning board “with directions that it approve the subdivision subject to all appropriate conditions, including the DEP’s approval of the transition area requirements.”

66 Park Street • Montclair, New Jersey 07042
tel: 973-783-3000 • fax: 973-744-5757 •