The opinion
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2231-08T2
A-3837-09T2
A-3400-10T2
IN THE MATTER OF AUTHORIZATION FOR
FRESHWATER WETLANDS STATEWIDE GENERAL APPROVED FOR PUBLICATION
PERMIT 6, SPECIAL ACTIVITY TRANSITION
AREA WAIVER FOR STORMWATER MANAGEMENT, December 11, 2013
WATER QUALITY CERTIFICATION, AND
ACCESS WAIVER FOR GENERAL PERMITS. APPELLATE DIVISION
____________________________________
IN THE MATTER OF CARE ONE, INC.
____________________________________
IN THE MATTER OF AUTHORIZATION FOR
FRESHWATER WETLANDS STATEWIDE
GENERAL PERMIT 6. (Revised or
Modified Permit).
____________________________________
Argued March 12, 2013 – Decided September 9, 2013
Before Judges Fisher, Waugh, and Leone.
On appeal from the New Jersey Department of
Environmental Protection, 1103-07-0007.1.
R. William Potter argued the cause for
appellants Residents for Enforcement of
Existing Land Use Code, Susan Tierney, and
Pond Run Watershed Association (Potter and
Dickson, attorneys; Mr. Potter, on the
briefs).
Jill Denyes, Deputy Attorney General, argued
the cause for respondent New Jersey
Department of Environmental Protection
(Jeffrey S. Chiesa, Attorney General,
attorney; Lewis A. Scheindlin, Assistant
Attorney General, of counsel; Ms. Denyes, on
the brief).
Richard M. Hluchan argued the cause for
respondent Care One, Inc. (Hyland Levin LLP,
attorneys; Mr. Hluchan, of counsel; Robert
S. Baranowski, Jr., on the brief).
Nicholas B. Patton argued the cause for
amici curiae, Delaware Riverkeeper and
Delaware Riverkeeper Network (Mr. Patton and
Jane P. Davenport McClintock, on separate
briefs.)
The opinion of the court was delivered by
WAUGH, J.A.D.
In these consolidated actions, appellants Residents for
Enforcement of Existing Land Use Code, Susan Tierney, and the
Pond Run Watershed Association appeal several administrative
decisions by respondent New Jersey Department of Environmental
Protection (Department) in connection with its grant of a
general freshwater wetlands permit and transition area waivers
to respondent Care One, Inc. (CareOne), which seeks to expand
its assisted living facility in Hamilton Township. We dismiss
the appeal in Docket No. A-3400-10 as interlocutory. We affirm
the administrative agency action in Docket No. A-3837-09, and
reverse the administrative agency actions in Docket No. A-2231-
08. Finally, we remand for further proceedings consistent with
this opinion.
2 A-2231-08T2
I.
We discern the following facts and procedural history from
the record on appeal.
In 1999, the Department granted CareOne a freshwater
wetlands permit to fill 0.97 acres of isolated wetlands and to
create a stormwater management basin, also known as a detention
basin,1 for construction of an assisted living facility on
approximately seven acres in Hamilton Township, Mercer County.
The facility, known as CareOne at Hamilton, is located on the
northern corner of the intersection of Cypress Lane and
Whitehorse-Hamilton Square Road. A 0.47 acre portion of the
permitted area was left undisturbed.
In 2007, CareOne wanted to construct a two-story, 62,259
square foot addition, as well as a paved parking lot. The
proposed construction would require the filling of the existing
detention basin and other wetlands on the site, and the
construction of a new, L-shaped detention basin along Cypress
Lane.
1
"'Detention basin' . . . means a human-made impoundment area
made by constructing an embankment, or excavating a pit, or
both, for the purpose of temporarily storing stormwater."
N.J.A.C. 7:7A-1.4.
3 A-2231-08T2
In April, CareOne submitted a combined application for a
"Letter of Interpretation" (LOI) to delineate the site's
freshwater wetlands and a "Freshwater Wetlands Statewide General
Permit No. 6" (GP6), see N.J.A.C. 7:7A-5.6, to fill the
undisturbed segment of the land covered by the 1999 permit, or
21,800 square feet (0.5 of an acre) of freshwater wetlands, and
to disturb an additional 35,906 square feet (0.82 of an acre) of
the adjoining transition area.2
According to CareOne, the nearest waterway to the site is
Pond Run. The affected onsite wetlands were isolated and of
intermediate resource value, requiring an adjacent transition
area of fifty feet. No bog turtle populations would be impacted
and "no flood hazard permit was required," because no activities
were proposed within the flood hazard area or riparian zones.
CareOne's application package contained, among other
documents: (1) a March 2007 "Statement of Compliance" by its
licensed professional engineers, Taylor Wiseman & Taylor (TWT),
which included a "Freshwater Wetlands Delineation Report"; (2)
grading and groundwater recharge plans, maps, soil boring logs,
vegetative and hydrological analyses, photographs, and a
2
N.J.S.A. 13:9B-3 defines "transition area" as "an area of land
adjacent to a freshwater wetland which minimizes adverse impacts
on the wetland or serves as an integral component of the
wetlands ecosystem."
4 A-2231-08T2
description of the onsite vegetative species; (3) two stormwater
management reports by TWT dated March 2007, "Drainage and
Detention Calculations," and "Detention Facilities Operation and
Maintenance Manual"; and (4) a March 2007 preliminary and final
site plan. CareOne also provided the required notice of its
project to Hamilton Township and landowners within 200 feet of
the site. The Department published notice of the applications
in the DEP Bulletin on May 2, 2007.
In March 2008, CareOne responded to the Department's
request for additional information by submitting (1) hydro-
graphs, including inflow and outflow hydrographs of the existing
and proposed basins for the two-, ten-, twenty-five-, and
hundred-year storms; (2) calculations and diagrams for two
recharge areas, one each in the front and rear of the building,
showing that they both would drain within the Department's
required seventy-two-hour limit; (3) existing and proposed flow
charts, and drainage area and grading maps; (4) a February 2008
revision of TWT's "Drainage and Detention Calculations"; and (5)
a February 2008 revision of TWT's "Detention Facilities
Operation and Maintenance Manual."
CareOne's proposed stormwater management plan included
(1) the new detention basin designed to meet the two-year, ten-
year, and hundred-year storm flow estimates and to "dry out"
5 A-2231-08T2
within the seventy-two-hour time limit required by the
Department; (2) two recharge areas with VortSentry® treatment
devices to manage stormwater quality by removing the total
suspended solids (TSS) in any runoff within 17.3 hours; (3) two
"StormChambers" to meet infiltration or groundwater recharge
estimates; and (4) an "Emergency Spillway" that would convey any
flows from a hundred-year storm.
While the Department's staff was reviewing CareOne's
application and submissions, CareOne applied to the Hamilton
Township Zoning Board of Adjustment (Zoning Board) for use and
site plan approvals and bulk variances for its project. On June
9, 2009, the Zoning Board voted to deny CareOne's request for
site plan approval with bulk variances. The decision is not in
the record. CareOne did not appeal the Zoning Board's denial.
In a May 8, 2008 internal "Engineer's Report for SWM
[stormwater management] review," the Department's staff
recommended "approval," concluding that "[t]his project is in
conformance with all of the engineering aspects of the
Stormwater rules." The staff also (1) determined that the
"[o]verall proposed land disturbance is more than 1 acre and new
impervious area is more than 1/4 acre, therefore review of
stormwater management was required for this project"; (2) found
that CareOne's submitted Nonstructural Strategies Points System
6 A-2231-08T2
(NSPS) spreadsheet had been "completed correctly"; (3)
"accepted" CareOne's calculations that its proposed TSS removal
plans of an extended detention basin and two water quality
treatment devices to treat any runoff from the new parking lot
and sidewalks, and from the pre-existing impervious area, would
remove approximately seventy-four percent of TSS; (4) noted that
CareOne had proposed two recharge chambers, or bio-retention
swales, to provide the required recharge volume within seventy-
two hours; and (5) found that stormwater flows would be "further
reduced due to Bio[s]wales."3 Finally, the staff approved the
drawings that CareOne had submitted, including CareOne's overall
site plan, grading plan, utility plan, and construction details.
On June 19, CareOne submitted a separate application to the
Department for a "Special Activity Transition Area for
Stormwater Management." The application, which included a June
2008 version of TWT's "Statement of Compliance," concerned
proposed construction on a section of CareOne's property that
was part of the transition area associated with freshwater
wetlands on the other side of Whitehorse-Hamilton Square Road.
Because the offsite wetlands were of exceptional resource value,
they required a 150-foot transition area, which extended across
3
Bioswales are stormwater runoff conveyance systems that provide
an alternative to storm sewers.
7 A-2231-08T2
the road onto CareOne's property.4 CareOne provided the required
notice to Hamilton Township and adjacent landowners.
Objectors, including appellants and other property owners
living in the adjacent Society Hill community, opposed CareOne's
proposal. Their major concerns centered on stormwater
management and local flooding risks. The Department assured
them that their concerns would be considered before any
approvals were given.
On June 24, appellants' engineer, John A. Miller, P.E., of
Princeton Hydro, LLC (Princeton Hydro), sent the Department
fourteen detailed objections to CareOne's stormwater control
plan. He opined that the plan would not prevent runoff or the
resulting periodic inundation of neighboring properties and
downstream pollution. He pointed to CareOne's lack of
conformity with non-structural strategies, peak flow reductions,
water quality runoff treatment, maintenance of groundwater
recharge, and safety standards. He asserted that CareOne's
design: (1) failed to address as a primary consideration the
use of natural (non-structural) stormwater management
techniques, such as "minimizing disturbance, minimizing
impervious surfaces, minimizing the use of stormwater pipes,
4
See N.J.A.C. 7:7A-2.7 (governing transition areas due to
freshwater wetlands on adjacent property).
8 A-2231-08T2
[and] preserving natural drainage features," as required by
Departmental regulations; (2) improperly exempted existing
impervious groundwater recharge; (3) improperly allowed the
post-development rate of runoff to exceed the pre-development
runoff rate in at least two locations; (4) failed to consider
the recharge capabilities of certain soils, which led to
erroneous stormwater calculations; (5) planned to employ
manufactured treatment devices that were not effective at
reducing nonpoint water pollution; (6) violated safety standards
by installing retaining walls around the detention basin; (7)
proposed a wetland basin that conflicted with TWT's statements
at the zoning board hearing proposing a dry basin; (8) failed to
account for runoff from existing wetland after it is filled; (9)
relied on onsite soil testing logs that erred in regard to the
depth to seasonal high groundwater, understated groundwater
levels and overstated recharge, and ultimately understated the
amount of stormwater runoff; (10) relied on "test pits" that
were not dug to sufficient depths or in the deepest location of
the proposed detention basin to verify groundwater depth; (11)
relied on a soil survey that contradicted the submitted soil
boring logs; (12) relied on a flawed annual groundwater recharge
analysis, resulting in the under-assessment of stormwater flows;
(13) violated best management practices by failing to test near
9 A-2231-08T2
the proposed recharge facility; and (14) failed to describe the
construction schedule to ensure the maintenance of stormwater
controls as the existing basin is being filled.
In addition, appellant Tierney, an adjacent property owner,
sent an email to the Department complaining about CareOne's
stormwater management plan and the loss of the site's natural
resources. She was concerned that CareOne's site plan contained
only one stormwater basin:
My concern with the stormwater basin is
based on the fact that [the] property was
also once wetlands and we have very wet
ground surface for days following rain. In
the month of December when a stormwater
outlet to our basin was obstructed we had a
couple feet of standing water for over 20
days. This standing water shows soils
adjacent to CareOne do not provide recharge
in a 72 hour period. CareOne's stormwater
basin is connected to the area of existing
wetlands. . . . I am concerned the
increased permeable surface, loss of natural
vegetation and surface area and the
questionable recharge properties may lead to
flooding of adjacent areas and support a
mosquito breeding area.
Following receipt of appellants' comments, the Department
requested additional information from CareOne, which filed a
September 2008 revision of its "Detention Facilities Operation
and Maintenance Manual."
On October 7, the Department's staff contacted Princeton
Hydro by telephone to discuss CareOne's stormwater design, and
10 A-2231-08T2
then responded to follow-up emails from Princeton Hydro on
November 7 and 13. The staff told Princeton Hydro that
CareOne's new basin was not required to be "a 1:1 wetlands
replacement" for the existing "wet basin," which CareOne
proposed to fill and replace, because the basin had been created
under the 1999 permit.
The staff also told Princeton Hydro that filling the
existing basin did not need to be part of CareOne's current
application, because the Department had "decided that requiring
. . . a permit for creating these wetlands and then another
permit to fill these same wetlands would be regulating the
disturbance twice." That advice, however, was not consistent
with the Department's earlier instruction to CareOne, in March
2008, that filling the existing basin and then creating a new
basin involving the special transition area of the offsite
wetlands required a separate General Permit No. 1 (GP1) wetlands
permit "for replacement of this wetland basin."
On November 20, the Department issued CareOne an LOI/Line
Verification, specifying the boundary of the freshwater wetlands
and waters on the property, including the transition area for
the offsite wetlands. Based upon its own site inspection and
the information submitted by CareOne, the Department also
determined that the onsite wetlands were of "intermediate"
11 A-2231-08T2
resource value, "isolated and not part of a surface water
tributary system."
On the same day, the Department issued CareOne the
following approvals: (1) a GP6 permit, which authorized
activity involving the filling of 21,800 square feet (0.5 of an
acre) and the filling of the existing detention basin, including
a transition area waiver for access; (2) a Water Quality
Certification; and (3) a Special Activity Transition Area Waiver
for Stormwater Management, which authorized disturbing the
transition area of the offsite wetlands. As the Department
acknowledges, there was no reference to CareOne's stormwater
management plan or the agency's review of that plan on the face
of those approvals.
The Department published notice of its permit approval in
the DEP Bulletin on December 3, and its approval of the special
transition area waiver on January 14, 2009. The Department did
not mention either a public comment period or the right to seek
a hearing for those approvals. However, the permit document
itself provided that, "[i]n accordance with N.J.A.C. 7:7A-1.7,
any person who is aggrieved by th[e] decision may request a
hearing within 30 days after notice of the decision is published
in the DEP Bulletin." On January 2, 2009, appellants filed a
timely "Adjudicatory Hearing Request" with the Department,
12 A-2231-08T2
asserting that alleged defects in CareOne's stormwater plan
would cause the discharge of large volumes of stormwater onto
their properties.
On January 5, appellants appealed the Department's November
2008 decision granting CareOne the GP6, the transition area
waivers, and the water quality certificate. That appeal was
assigned Docket No. A-2231-08.
On May 7, the Department moved for an order remanding the
matter to the Department for additional fact finding. It also
sought dismissal of the appeal without prejudice. The purpose
of the remand was to address the issue of the stormwater
management plan, which, as noted, had not been mentioned on the
face of the Department's approvals. The Department's section
chief asserted in her supporting certification that she would
meet with appellants and their consultant, Princeton Hydro, "to
discuss concerns expressed in their submitted comments," and
"[i]f the Department conclude[d] that the project . . . meets
the Stormwater Management Regulations, the Department shall
issue an amended decision setting forth the factual basis for
that determination."
On June 22, we granted the Department's motion for remand
in Docket No. A-2231-08, but denied its motion to dismiss the
appeal. Instead, we retained jurisdiction and ordered
13 A-2231-08T2
completion of the remand by September 25. We noted that we
would allow for "an appropriate extension" of the deadline if
the Department needed a "hearing . . . to properly complete
th[e] remand." Although we granted extensions at the request of
both sides, the Department did not hold a hearing.
In August, Department staff met with appellants and
representatives of Princeton Hydro, the Delaware Riverkeeper,
and the Delaware Riverkeeper Network.5 Appellants' counsel also
submitted written comments and legal arguments. Department
staff subsequently met with CareOne to discuss the objections
raised by the project's opponents. In October, CareOne
submitted new revisions of its preliminary and final site plan,
its drawings, and TWT's "Drainage and Detention Calculations"
and "Detention Facilities Operation and Maintenance Manual."
On December 1, Princeton Hydro sent the Department
objections to the newly revised plans. It argued that the
Department should require CareOne to apply for an individual
permit instead of a general permit, because: (1) CareOne's
filling, relocating, and enlarging the existing detention basin
together with filling the wetlands that had formed in the
uplands surrounding that basin since its 1999 construction did
5
We subsequently granted amicus status to the Delaware
Riverkeeper and the Delaware Riverkeeper Network.
14 A-2231-08T2
not fall within the scope of the 1999 permit or qualify for a
GP1 under the N.J.A.C. 7:7A-5.1, which states that "[a]ctivities
under [GP1] shall not expand, widen or deepen the previously
authorized feature"; (2) the wetlands inside the existing basin
and the new wetlands created in the uplands could not be
considered isolated for GP6 purposes because of the existing
discharge pipe connecting them and making them part of a
tributary system, and N.J.A.C. 7:7A-5.6 authorizes activities
"if the freshwater wetlands . . . are not part of a surface
water tributary system"; and (3) CareOne's proposed activities
combined with its activities in the existing basin and
associated wetlands exceeded the one-acre limit for a GP6 and
did not qualify for an exception under N.J.A.C. 7:7A-4.4(a).
On January 26, 2010, the Department submitted a fact-
finding remand report, entitled "Engineering and Environmental
Report," to the Clerk of the Appellate Division. In the remand
report, the Department explained that "a number of revisions
were made to the proposed design of the site and the stormwater
management calculations by design engineer Gary Vecchio, P.E.,
as requested by the Department."
The Nonstructural Strategies Point System
(NSPS) spreadsheet has been revised to
demonstrate that the project complies with
the requirements of N.J.A.C. 7:8-5.3.
Various adjustments were made to the runoff
and recharge calculations, based on revised
15 A-2231-08T2
assumptions of soil types and drainage
areas. Additionally, the proposed water
quality treatment devices were modified as
requested, so that only the water quality
design storm, which is 1.25 inches of rain
in a two-hour period, as defined at N.J.A.C.
7:8-5.5(a) will be treated. Modifications
were also made to the stormwater management
operation and maintenance manual, a
construction sequence was provided, and
runoff to depressed areas onsite was
reevaluated.
However, the Department informed us that CareOne still needed to
make additional design alterations to address Princeton Hydro's
December 2009 concerns "with which the Department is in
agreement."
More specifically, the Department agreed that (1) CareOne's
new inlet proposed for Whitehorse-Hamilton Square Road also
conveyed water into the proposed new detention basin, and that
CareOne had not included those runoff projections in its
calculations for the basin's capacity; (2) CareOne's design
assumed the wrong soil type in its stormwater calculations in
contradiction to the soil borings, and underestimated and
underreported the difference in runoff quantities, "resulting in
additional runoff downstream that is unaccounted for in the
submitted calculations"; (3) CareOne did not provide proof that
its proposed storm sewer system could carry stormwater into the
proposed new detention basin during a hundred-year storm, or
that the basin would function properly and not back up during
16 A-2231-08T2
this storm; (4) CareOne's operation and maintenance manual did
not address goose and invasive species control; (5) there was a
contradiction between CareOne's submitted materials and a detail
sheet regarding maintenance methods for the proposed
StormChambers infiltration units; (6) CareOne needed to conduct
"[a]dditional field work . . . to verify the functionality of
the proposed hybrid basin, given that the seed mixture proposed
on the plans for the 'wet' bottom of the basin is highly
dependent on the soils being saturated"; (7) CareOne's
stormwater calculations failed to compute drainage times
"necessary to verify that storage exists for the next storm
event"; (8) that, based on submitted soil boring logs, the
system near one of the test pits "could be influenced by a
perched water table, which would surcharge the area and
overwhelm the proposed facility"; and (9) CareOne needed to
address Princeton Hydro's conclusion that the "Groundwater
Recharge Trench" to the StormChambers "does not satisfy the
Stormwater Rule design standards."
The Department further advised us that, after addressing
those issues, CareOne would need to "apply for a modification of
the freshwater wetlands permits in order to formalize the
Department's review and approval of these changes." The
Department also asked Princeton Hydro to provide engineering
17 A-2231-08T2
calculations for "further illumination . . . regarding runoff
from adjacent properties," adding that, based on the
information, it might require CareOne to make "further
amendments to the stormwater management design of th[e]
project."
On March 10, the Department's Acting Commissioner denied
appellants' request for an adjudicatory hearing, finding that
they had "demonstrated neither a risk of erroneous deprivation
of a particularized property right nor any statutory right to an
administrative hearing." On April 26, appellants filed a notice
of appeal with respect to the denial of their hearing request.
That matter was assigned Docket No. A-3837-09.6
On August 30, in response to the Department's remand
report, CareOne submitted revised plans and drawings to the
Department. These included (1) revised preliminary and final
site plans; (2) revised drawings for existing and proposed
drainage areas; (3) revised "Drainage and Detention
Calculations"; and (4) a new version of TWT's "Detention
Facilities Operation and Maintenance Manual." In those
documents, CareOne proposed two new groundwater recharge areas
that, based on its new soil borings and permeability tests, will
6
On the same day, appellants filed a motion for summary
disposition in Docket No. A-2231-08. That motion was denied on
June 8.
18 A-2231-08T2
"completely drain" in 3.3 hours and 7.3 hours, respectively,
which was less than the recharge volume required within seventy-
two hours. CareOne also reported that it had performed another
soil boring "to make sure the invert of basin . . . has at
minimum a 1" separation from the seasonal high water table."
Based on those results and its revised conditions, drainage, and
detention calculations, CareOne concluded that "the total annual
recharge volume will be greater than the post-development annual
recharge deficit, and it added that a proposed new "Emergency
Spillway" will "convey flow[s] of the 100-year inflow peak
[plus] 50%."
In a February 1, 2011 letter to CareOne concerning the
2008-approved GP6 and transition area waivers, the Department
stated in part:
As a result of the pending appeal of the
above permits, the State requested that the
Appellate Division remand these permits back
to the Department for reconsideration.
Since that time, the Department reviewed
concerns raised by objectors, reviewed
additional information submitted by the
permittee's consultant [TWT], as noted
below, and has determined that it is
necessary and appropriate to issue a
modified permit.
[(Emphasis added).]
The Department's letter listed information and documents it had
reviewed, which included (1) Princeton Hydro's June 2008
19 A-2231-08T2
comments; (2) CareOne's revised drawings, calculations, and
manuals prepared by TWT in October 2009; (3) Princeton Hydro's
December 2009 comments to the new revisions; and (4) CareOne's
subsequently revised drawings, calculations and manuals prepared
by TWT in July 2010, and submitted to the Department in August
2010.
The Department's letter continued:
This modification letter approves:
1. At the Department's request, a
safety fence is now to be installed around
the perimeter of the entire detention basin.
This is necessary since the detention basin
design includes small retaining walls in
place of earthen slopes along the outer
edges of the detention basin.
2. The relocation of manufactured water
quality treatment devices which are to be
located connected and adjoining to the storm
water pipes. Constructing these devices
adjacent to stormwater pipes allows larger
storm flows to by-pass the water quality
devices which makes them more efficient in
treating water quality.
3. Groundwater recharge chambers are to
be relocated. This is necessary since the
chambers were previously proposed in an area
where soils are not permeable enough to
provide adequate groundwater recharge.
[(Emphasis added).]
The modification letter also approved various drawings as
revised by TWT, including a new site plan, grading plan, utility
20 A-2231-08T2
plan, profiles, construction details, and basin construction
sequence plan.
However, the Department noted that
[t]his approval is subject to the following
conditions:
1. The applicant [CareOne] is required
to provide a revised Groundwater Recharge
Spread Sheet (NJGRS) and confirm that the
soil types determined by field infiltration
tests were used in the recharge spread
sheets, where appropriate. If the project
does not provide adequate recharge in the
proposed condition, additional recharge
structures must be provided.
2. The applicant [CareOne] is required
to seed the basin with a grass seed mixture
of wet tolerant and dry tolerant varieties.
Therefore, a revised Landscape Map must be
submitted reflecting this change.
All required information must be
submitted to this office within 60 days of
receipt of this letter. Furthermore, no
disturbance or construction may be
undertaken in regulated areas until the
permittee has submitted the required
information and received a written approval
of the same from the Department. All other
conditions of the original permit remain in
force, and this revision does not extend the
original permit expiration date.
[(Emphasis added).]
At the same time, the Department's staff issued two new
reports, both dated February 1: (1) a new "Engineer's Report
for SWM review" with supporting calculations; and (2) a new
"Engineering and Environmental Report."
21 A-2231-08T2
In its new SWM review report, the Department staff found
that, because CareOne's "[o]verall proposed land disturbance is
more than 1 acre and new impervious area is more than 1/4 acre,"
"review of stormwater management was required for this project."
Having reviewed CareOne's most recent submissions and
calculations, it recommended "approval." The staff also
accepted CareOne's proposed TSS removal rate and found that
CareOne's operation and maintenance manual was in accordance
with N.J.A.C. 7:8-5.8. Finally, the report noted the receipt of
objection letters from Princeton Hydro for CareOne's "original
stormwater design," after which "[t]he revised stormwater
management report and plans were reviewed twice by the
objector's engineer and no comments were received for this
revision."
The Department's revised "Engineering and Environmental
Report," contained the following findings: (1) CareOne had
included a proposed inlet on Whitehorse-Hamilton Square Road in
its basin inflow/outflow calculations, which satisfied the
Department's concern that "the basin calculations count all of
the runoff from the impervious areas"; (2) CareOne had relocated
its proposed groundwater recharge, giving the project "9,000
cubic feet of groundwater recharge beyond what was provided in
the originally approved design," but the Department still needed
22 A-2231-08T2
CareOne to verify that it had "not underestimated existing
groundwater recharge on the site"; (3) CareOne "ha[d] now
analyzed the proposed storm sewer system based on a 25-year
storm event and a 100-year storm event, and ha[d] demonstrated
that the proposed system has adequate capacity," and that if the
storm pipes got backed up, "the majority of any overflow from
catch basins [would] still enter the detention basin by overland
flow"; (4) CareOne had revised its "Detention Facilities
Operation and Maintenance Manual" to provide for invasive plant
species and goose control, along with "an acceptable maintenance
protocol for the proposed StormChamber infiltration units"; (5)
CareOne would "be required to seed the basin with a grass seed
mixture consisting of wet tolerant and dry tolerant varieties,"
ensuring the grass would survive; (6) CareOne had revised its
plans to include new drainage time calculations, "which
demonstrate[d] that the proposed drainage-times are less than 72
hours," and had provided a new test pit "at the exact location
of the recharge system," which showed "that location is not
influenced by a perched water table" and that groundwater "was
not encountered [anywhere] down to a depth . . . more than 2
feet below the bottom of recharge facility"; and (7) CareOne had
relocated its recharge areas to different locations above the
seasonal high groundwater table, which satisfied the
23 A-2231-08T2
Department's concern that CareOne's proposed trench did not meet
SWM design standards.
The Department concluded:
As a result of the objector's claim[s],
the applicant's consultant [TWT] has now
revised plans and stormwater management
report as submitted to the [Department] on
August 30, 2010 to address the groundwater
recharge, details of the recharge chambers
and water quality bypass. The applicant's
consultant also verified the depth of the
groundwater where claims were made regarding
inadequate documentation. The revised
project meets all of the stormwater
management regulations subject to the
conditions listed in the revised approval
letter.
Finally, the Department reiterated that "no additional comments
were received from the Objector's consultant."
On February 15, Princeton Hydro submitted updated comments
and objections concerning CareOne's August 2010 plans, reports,
and drawings to the Department. According to Princeton Hydro,
it "had not known about" TWT's August submissions to the
Department until the Department's staff had contacted Miller on
November 29.
On February 16, the Department moved to dismiss Docket No.
A-2231-08 as moot, and CareOne joined in the motion. On March
17, we reserved decision on the Department's motion to dismiss,
pending determination on the merits of the appeal.
24 A-2231-08T2
In the March 9 DEP Bulletin, the Department published a
"NOTICE OF INTENT TO SETTLE" based on its most recent
correspondence to CareOne. The notice provided as follows:
On February 1, 2011[,] a revision
letter was issued to the applicant Care One
for the previously approved Freshwater
Wetlands Transition Area Waiver for
Stormwater Management and General Permit No.
6. . . .
The revision letter approves:
(1) A safety fence to be constructed
around the perimeter of the entire
detention basin.
(2) The relocation of manufactured
water quality treatment devices which
are to be located connected and
adjoining to storm water pipes.
(3) Groundwater recharge chambers are
to be relocated.
The applicant is still required to
submit the following information:
(1) A revised Groundwater Recharge
Spread Sheet (NJGRS) must be submitted
and if not acceptable additional
recharge structures must be provided.
(2) A revised Landscape Map must be
submitted showing the basin is seeded
with a grass seed mixture of wet
tolerant and dry tolerant varieties.
Seven (7) drawings prepared by Taylor,
Wiseman and Taylor, dated March 30, 2007 and
last revised July 30, 2010 were approved
with this revision.
25 A-2231-08T2
The notice further provided that "[a]ny comments, concerning
this revision, must be submitted within 15 days to [the
Department]."
On March 18, appellants filed a notice of appeal from the
Department's February 1, 2011 decision, which they characterized
as "a revised permit." That matter was assigned Docket No.
A-3400-10.7
In March, CareOne submitted additional revisions to the
Department in response to the two conditions in its February 1
letter. In a letter dated April 20, the Department confirmed
that CareOne had satisfied those conditions. The Department
found that "[t]he project now complies with the Stormwater
Management Regulations, N.J.A.C. 7:8." The Department published
notice of its April 20 letter in the May 11 DEP Bulletin under
the heading "NOTICE OF INTENT TO SETTLE AND ISSUE PERMIT." The
notice referred to the fifteen-day public comment period.
In June, the Department filed its fourth statement of items
comprising the record. In July, appellants filed a motion to
correct the administrative record by adding an April 8 letter
they contend Princeton Hydro sent to the Department concerning
7
In April, CareOne moved to consolidate the three appeals and
appellants moved to stay any construction pending appeal. We
granted the consolidation motion in May, but denied the request
for a stay.
26 A-2231-08T2
objections to the Department's revision letter. While the
motion was pending, the Department filed its fifth statement,
which included other items received by the Department after
February 1, but did not include the April 8 letter from
Princeton Hydro.
We initially denied appellants' motion to supplement, but
on reconsideration reserved the issue pending a decision on the
merits. We observed that
[i]t is not clear from the motion that the
document at issue was filed with [the
Department] when it made the decision as to
which there is an appeal pending or whether
[the Department] has included in its
statement of the record of appeal other
documents that were received by it following
such decision. Consequently, we defer the
issue to the merits panel. Movant may
include the document in its appendix and
comment on it in argument, subject to the
decision of the merits panel whether to
consider the document.
Because the Department published its April 20 letter as a notice
of intent to settle in the May 11 DEP Bulletin, we grant
appellants' motion to include Princeton Hydro's April 8 letter
in the record on appeal.
In that letter, Princeton Hydro wrote:
There are a number of disconcerting
items that [the Department] has failed to
recognize through this lengthy and abnormal
process. The point system that [the
Department] is relying on to confirm the
applicant has satisfied the Rule's non-
27 A-2231-08T2
structural strategies is not part of the
Stormwater Rule or BMP manual and did not go
through a formal adoption process. The
[Department] accepted a fence in lieu of
meeting the Safety Standards for Stormwater
Management Basins (N.J.A.C. 7:8-6.2(c)3) and
the Municipal Land Use Law, [N.J.S.A.]
40:55D-95.1, endangering the public.
Further, [the Department] relied on a
Certification Letter from the applicant's
engineer for soils data and groundwater
recharge design rather than evaluating the
conclusions and integrity of design.
Equally important to the defects in the
application with regard to the Stormwater
Rule, the [Department] has completely
ignored the wetland permitting issues
discussed in the September 10, 2009 meeting
with [the Department] followed by a
Princeton Hydro letter on December 1, 2009
to [the Department].
Continued nonconformance is fully
described in a Princeton Hydro review letter
dated February 15, 2011 submitted to your
office. This letter details the persistent
lack of conformity with non-structural
strategies, peak flow reductions, water
quality runoff treatment, maintenance of
groundwater recharge and satisfying safety
standards. The February 1, 2011 letter to
modify the permit is seemingly based on the
content of a [Department] Engineering and
Environmental Report dated February 1, 2011.
After much time and commenting to the
[Department], the conditions assigned to the
modified permit, requiring additional
information to be submitted, acknowledges
the further failure of the applicant to
comply with the Rules. The original permit
had no such required conditions to supply
additional information. In fact, with these
conditions of approval, the modified permit
is additionally flawed since it will require
the submission of additional information,
and this being critical information to
28 A-2231-08T2
verify compliance with the Stormwater Rule.
If additional recharge facilities are
required, additional soil testing will also
be necessary. Even if the conditions are
met, there are a number of outstanding
comments, detailed in Princeton Hydro's
February 15, 2011 letter. The continual
unconventional [Department] review process
will further the cycle of revisions, reviews
and more comments into the foreseeable
future and beyond.
With the Princeton Hydro June 24, 2008
letter, [the Department] should not have
issued a permit and, on a technical level,
[should] have realized this in its first
Engineering and Environmental Report dated
January 26, 2010. After a permit was issued
and following a September 10, 2009 meeting
with [the Department] and Princeton Hydro
letter dated December 1, 2009 to [the
Department], [the Department] should have
rescinded the permit. As the February 15,
2011 Princeton Hydro letter demonstrates,
the modified permit, like the original, is
flawed and should have been held, or as now
issued, rescinded.
II.
Before turning to the substantive issues raised on this
appeal, we first address the motion to dismiss that was reserved
pending our consideration of the merits.
The Department and CareOne seek dismissal of Docket No. A-
2231-08, the appeal concerning the Department's 2008 permit and
related approvals, arguing that the issue is moot because the
2008 permit was superseded by the subsequent modifications that
are the subject of the appeal in Docket No. 3400-10. Our
29 A-2231-08T2
problem with respondents' argument is that the Department never
took final administrative action with respect to those
modifications. See N.J.A.C. 7:7a-14.1(a) and -14.3 (modifying
an issued permit).
In both instances, the Department published notices of
intent to settle, which triggered public comment periods.
However, the Department took no formal action to adopt the
modifications after the close of the comment period. See, e.g.,
Dragon v. N.J. Dep't of Envtl. Prot., 405 N.J. Super. 478, 492
(App. Div.) (discouraging use of agency's settlement power to
avoid regulatory compliance), certif. denied, 199 N.J. 517
(2009).8 Because there was no final administrative action, the
appeal in Docket No. 3400-10 is interlocutory.
As a result, we deny the motion to dismiss Docket No. A-
2231-08 and instead dismiss Docket No. 3400-10 as interlocutory.
Inasmuch as the issues have been fully briefed and argued, we
reluctantly consider the subsequent actions taken to have been a
consequence of our 2009 remand and, therefore, included in the
earlier appeal in Docket No. A-2231-08.
Nevertheless, we note the Department's continuing
modification of the permit and other approvals long after the
8
We again caution against the use of a notice of settlement to
avoid regulatory compliance.
30 A-2231-08T2
expiration of the remand period was inappropriate. Once it had
determined that the information on which the 2008 approvals were
issued was inaccurate or insufficient, the better practice would
have been to withdraw the permit pending further review of the
applications. Once it had finalized the approvals, it should
have reissued them, as revised, with appropriate notice,
publication, and compliance with administrative procedures.
III.
We now turn to the merits of the appeal, starting with the
issue raised in Docket No. A-3837-09 concerning the Acting
Commissioner's denial of the appellants' request for an
adjudicatory hearing.
A third-party objector's right to a formal administrative
hearing is delineated and circumscribed by the Administrative
Procedure Act (APA), N.J.S.A. 52:14B-1 to -25. Although "the
APA does not foreclose such third parties from seeking judicial
review of the merits of a permit once it is issued by an
agency," In re Riverview Dev., LLC, 411 N.J. Super. 409, 425
(App. Div.), certif. denied, 202 N.J. 347 (2010), it gives the
non-applicant objector no automatic right to a formal
administrative hearing to contest the issuance of a permit
unless he or she can establish a statutory or constitutional
right to that hearing. In re NJPDES Permit No. NJ0025241, 185
31 A-2231-08T2
N.J. 474, 481 (2006); In re Freshwater Wetlands Statewide Gen.
Permits, 185 N.J. 452, 463 (2006); Spalt v. N.J. Dep't of Envtl.
Prot., 237 N.J. Super. 206, 212 (App. Div. 1989), certif.
denied, 122 N.J. 140 (1990). In fact, the APA expressly
prohibits a state agency from promulgating rules or regulations
entitling a third party to an administrative appeal as a
contested case under the APA unless "specifically authorized to
do so by federal law or State statute," or unless a person "has
[a] particularized interest sufficient to require a hearing on
constitutional or statutory grounds." N.J.S.A. 52:14B-3.1(d),
-3.2(c), -3.3.
The Freshwater Wetlands Protection Act (FWPA), N.J.S.A.
13:9B-1 to -30, does not provide third-party objectors with the
right to a plenary administrative hearing to challenge DEP's
issuance of a permit. Under N.J.S.A. 13:9B-20, only applicants
may request an adjudicatory hearing to challenge the
Department's decision concerning a FWPA permit. Consequently,
appellants' challenge to the Department's action does not
qualify for an adjudicatory hearing unless they establish that
one or more of their constitutional rights are at stake.
In rejecting appellants' request, which was premised on
CareOne's project posing a threat of increased stormwater
discharge to their properties, the Acting Commissioner relied on
32 A-2231-08T2
In re Freshwater Wetlands, supra, 185 N.J. at 470. In that
case, the Supreme Court, referring to our decision in Spalt,
supra, 237 N.J. Super. at 212, observed that
Judge (later Justice) Coleman held that
"simply because some of the plaintiffs
reside close to the proposed [marina] site
and are fearful of resultant injury to their
property, does not mean they are entitled to
an adjudicatory hearing." Further elaborat-
ing on that theme, Judge Coleman noted that
"[f]ear of damage to one's recreational
interest or generalized property rights
shared with other property owners is
insufficient to demonstrate a particularized
property right or other special interest."
[In re Freshwater Wetlands, supra, 185 N.J.
at 470 (citations omitted).]
Appellants presented only their fears of flooding and
Princeton Hydro's calculations evidencing the possibility of
flooding on neighboring properties from CareOne's project. We
find no error in the Acting Commissioner's determination that
appellants "have not demonstrated a particularized property
right which gives rise to a constitutional basis for granting a
hearing."
Consequently, we affirm the denial of appellants' request
for an adjudicatory hearing.
IV.
We next address appellants' argument that the Department's
reliance on the Nonstructural Strategies Points System to assess
33 A-2231-08T2
CareOne's stormwater management plan was improper because
implementation of the NSPS constituted improper administrative
rulemaking.9 Before addressing their argument, however, we must
supply some background, including the Department's general
stormwater management requirements and its incorporation of the
NSPS into its permitting process under the FWPA.
Pursuant to N.J.A.C. 7:7A-2.11, all projects requiring an
FWPA individual permit and all regulated activities requiring an
FWPA general permit that propose to disturb one or more acres
are considered "major development[s]" under N.J.A.C. 7:8-1.2,
and trigger compliance with the Department's stormwater
management rules, found at N.J.A.C. 7:8-1.1 to -6.3. The same
requirement applies to a project that would increase impervious
surfaces by one-quarter acre (10,890 square feet) or more.
N.J.A.C. 7:7A-2.11, 7:8-1.2.
Subchapter 5 of those rules, N.J.A.C. 7:8-5.1 to -5.9, sets
standards for limiting the "adverse impact of stormwater
runoff." N.J.A.C. 7:8-5.1(a). Standards for controlling
erosion, encouraging and controlling infiltration and
9
Although it is not clear that the issue was directly argued
before the Department, no party has raised that issue, and they
have addressed the merits of the argument. Consequently, we
need not reach that question.
34 A-2231-08T2
groundwater recharge, and controlling runoff quantities are
found in N.J.A.C. 7:8-5.4. Standards for runoff quality are
found in N.J.A.C. 7:8-5.5. The regulations provide that the
standards in those two regulations "shall be met by
incorporating nonstructural stormwater management strategies at
N.J.A.C. 7:8-5.3 into the design" "[t]o the maximum extent
practicable." N.J.A.C. 7:8-5.2(a), -5.3(a) (emphasis added).
The nine specific nonstructural strategies that "shall" be
incorporated into every site design to "the maximum extent
practicable" are listed in N.J.A.C. 7:8-5.3(b).
In addition, all permit applicants "shall identify the
nonstructural strategies incorporated into the design of the
project." N.J.A.C. 7:8-5.3(a) (emphasis added). "If the
applicant contends that it is not feasible for engineering,
environmental or safety reasons to incorporate any nonstructural
stormwater management strategies identified in [N.J.A.C. 7:8-
5.3(b)] . . . into the design of a particular project, the
applicant shall identify the strategy and provide a basis for
the contention." Ibid. (emphasis added). It is only when the
standards in N.J.A.C. 7:8-5.4 and -5.5 cannot be met by
nonstructural measures alone that "structural stormwater
management measures . . . necessary to meet these standards
shall be incorporated into the design." N.J.A.C. 7:8-5.2(a).
35 A-2231-08T2
Consequently, the Department's regulations require
applicants for major developments, such as CareOne, to
demonstrate that, to the "maximum extent practicable," they gave
nonstructural stormwater strategies, such as swales or
bioretention basins, priority over structural stormwater
strategies, such as storm sewers, pipes, and manufactured
treatment devices. If they cannot do so, they must prove why
such priority was not feasible for engineering, environmental or
safety reasons.10
When the Department proposed its current stormwater
management rules in 2003, 35 N.J.R. 119(a) (Jan. 6, 2003),
commenters requested "a definition" of "maximum extent
practicable," 36 N.J.R. 670(a), 691 (comments 185-86) (Feb. 2,
2004). The Department responded that the term is "fact-
sensitive and cannot be reduced to a standard formula. The
reviewing agency's administrative discretion in determining
compliance with these rules will be guided by the goals of this
chapter and its statutory mandates." Ibid. The Department
explained that the term was "used to describe the expenditure of
effort required to achieve full compliance with the applicable
10
The Department provides extensive guidance concerning
nonstructural stormwater management strategies. See N.J.A.C.
7:8-5.3(d), -5.9.
36 A-2231-08T2
standard, taking into account the specific circumstances of the
development in question." Ibid.
Commenters further noted that neither the proposed rules
nor the New Jersey Stormwater Best Management Practices (BMP)
Manual "include[d] any specifics as to how can one calculate the
effectiveness of the nonstructural measures incorporated into
the site design as required under N.J.A.C. 7:8-5.3." Id. at
719-20 (comments 473-75). The Department responded:
Calculations are performed based upon
computational methods referenced in N.J.A.C.
7:8-5.4(a)2i and 5.6. The factors that are
utilized in the calculations depend upon the
nonstructural stormwater strategy and the
site-specific conditions. . . . The BMP
Manual provides guidance on how to adjust
computations based on the nonstructural
stormwater BMPs implemented. Because the
calculations depend on varying site-specific
conditions, the Department does not believe
that the formation of a table is
appropriate.
The applicant's engineer must
demonstrate and discuss the use of
nonstructural stormwater management
techniques throughout a proposed development
site to demonstrate where each technique is
utilized. In cases where specific
techniques are not used, the applicant's
engineer must provide the justification. A
checklist is included in the BMP Manual to
assist designers to address this
requirement.
[Id. at 720.]
37 A-2231-08T2
In 2006, however, the Department created the NSPS,
described in the NSPS User's Guide as "a tool to assist
planners, designers, and regulators in determining that the
strategies have been used to the 'maximum extent practicable' at
a major development as required by the Rules" (emphasis added).
It posted the NSPS User's Guide and the NSPS Excel Spreadsheet
on its website, along with other guidance documents and
responses to "Frequently Asked Questions" relating to its
stormwater management rules.11
According to the NSPS User's Guide (emphasis added):
The New Jersey NSPS is a Microsoft Excel-
based computer spreadsheet program that can
be used to demonstrate that sufficient
nonstructural stormwater management measures
have been incorporated into the design of a
major land development project to . . . meet
the maximum extent practicable requirement
for nonstructural strategies in the
Stormwater Management Rules. The NSPS
assigns points based upon the existing and
proposed conditions at the development site.
A specific percentage of existing or pre-
developed points must be achieved under
proposed or post-developed conditions in
order to demonstrate compliance through the
NSPS. As described in detail below, the
required percentage of existing points
varies according to the size of project site
and the State Planning Area in which it is
located.
11
See N.J. Dep't of Envtl. Prot., Stormwater Magagement:
Additional Guidance Documents, http://www.njstormwater.org/
guidance.htm (last visited Aug. 5, 2013).
38 A-2231-08T2
Appellants argue that the NSPS has the effect of an
administrative rule and should have been adopted through the
formal rulemaking process. Both the Department and CareOne
argue that formal APA rulemaking is not required because the
Department is entitled to take informal action to advise and
supervise the regulated community, such as creating the NSPS and
using it to review permit and waiver applications. They assert
that the NSPS provides no new substantive legal or
administrative standard or policy that cannot be inferred from
the existing stormwater management rules. Respondents further
maintain that use of the NSPS is not "mandatory" or
"dispositive." Instead, they contend that the NSPS "merely
serves as a screening device to streamline review." They aver
that it is only "one way" for the agency to review a project's
nonstructural features, providing only a preliminary screen for
minimal compliance with N.J.A.C. 7:8-5.3 standards without
"eliminate[ing] case-specific departmental review of a
stormwater plan."
Respondents' argument is fatally undercut by the
Department's own "Important Note" in the NSPS User's Guide.
Important Note: If the NSPS demonstrates
that sufficient nonstructural stormwater
management measures have been utilized at a
major development, no further proof of
compliance with the maximum extent
practicable requirement shall be required.
39 A-2231-08T2
However, if the NSPS fails to demonstrate
such compliance, such results shall not be
used to disapprove any permit application
sought by a proposed major development.
Instead, the applicant for such permit will
be required to demonstrate compliance
through other and/or additional means. This
includes the Low Impact Development (LID)
Checklist contained in Appendix A of the New
Jersey Stormwater Best Management Practices
Manual, which includes a rigorous
alternatives analysis for each measure.
Finally, it should be noted that the NSPS is
not presently intended for use on roadway
construction, improvement, and other linear
development projects. As a result, other
means, including the LID Checklist, should
be used for such projects.
[(Emphasis added).]
It is clear from the language used by the Department itself
that its review of the use of nonstructural measures does not go
beyond the NSPS if the minimum number of points have been
awarded to satisfy the "sufficient" standard, without
determining whether the use of additional nonstructural measures
would have been practicable. In contrast, failure to use the
NSPS or to reach the required "sufficient" score will result in
"a rigorous alternatives analysis for each measure." Such an
application of the NSPS conflicts with the Department's own
assertion, during promulgation of its stormwater management
regulations, that the term "maximum extent practicable" found in
N.J.A.C. 7:8-5.3 is "fact-sensitive and cannot be reduced to a
standard formula." 36 N.J.R. at 691 (response to comments 185-
40 A-2231-08T2
86). Indeed, the Department asserted that "[b]ecause the
calculations depend on varying site-specific conditions, the
Department does not believe that the formation of a table is
appropriate." Id. at 720 (response to comments 473-76).
Appellants argue that the use of the NSPS, as described by
the Department, improperly shortcuts the application review
process because it has not been subjected to the rulemaking
process and its opportunity for public comment. We agree.
Administrative agencies possess wide latitude in selecting
the appropriate procedures to effectuate their regulatory duties
and statutory goals. In re Request for Solid Waste Util.
Customer Lists, 106 N.J. 508, 519 (1987); Metromedia, Inc. v.
Dir., Div. of Taxation, 97 N.J. 313, 333 (1984); Texter v. Dep't
of Human Servs., 88 N.J. 376, 383-84 (1982). However, an
agency's "discretion to act formally or informally is not
absolute." In re N.J.A.C. 7:1B-1.1 et seq., 431 N.J. Super.
100, 133 (App. Div. 2013) (petition for certification pending).
"The inquiry whether an agency's actions constitute
improper rulemaking is informed by well-settled principles."
Ibid. Guidance documents, standardized forms, and responses to
"frequently asked questions" can constitute improper rulemaking.
Id. at 112-14, 138-40.
41 A-2231-08T2
The APA defines an administrative rule as an agency's
"statement of general applicability and continuing effect that
implements or interprets law or policy, or describes the
organization, procedure or practice requirements" of the agency.
N.J.S.A. 52:14B-2(e). "If an agency determination or action
constitutes an 'administrative rule,' then its validity requires
compliance with the specific procedures of the APA that control
the promulgation of rules." Airwork Serv. Div. v. Dir., Div. of
Taxation, 97 N.J. 290, 300 (1984), cert. denied, 471 U.S. 1127,
105 S. Ct. 2662, 86 L. Ed. 2d 278 (1985).
Formal rulemaking "allows the agency to further the policy
goals of legislation by developing coherent and rational codes
of conduct 'so those concerned may know in advance all the rules
of the game, so to speak, and may act with reasonable
assurance.'" Gen. Assembly of N.J. v. Byrne, 90 N.J. 376, 385-
86 (1982) (quoting Boller Beverages, Inc. v. Davis, 38 N.J. 138,
152 (1962)). "The purpose of the APA rulemaking procedures is
'to give those affected by the proposed rule an opportunity to
participate in the process, both to ensure fairness and also to
inform regulators of consequences which they may not have
anticipated.'" In re Provision of Basic Generation Serv. for
Period Beginning June 1[,] 2008, 205 N.J. 339, 349 (2011)
(quoting In re Adoption of 2003 Low Income Hous. Tax Credit
42 A-2231-08T2
Qualified Allocation Plan, 369 N.J. Super. 2, 43 (App. Div.),
certif. denied, 182 N.J. 141 (2004)).
The Supreme Court has identified six factors to consider
when evaluating whether an agency's action, "to be valid, had to
comply with the requirements governing the promulgation of
administrative rules as provided by the APA." Metromedia,
supra, 97 N.J. at 328.
[A]n agency determination must be considered
an administrative rule when all or most of
the relevant features of administrative
rules are present and preponderate in favor
of the rule-making process. Such a
conclusion would be warranted if it appears
that the agency determination, in many or
most of the following circumstances, (1) is
intended to have wide coverage encompassing
a large segment of the regulated or general
public, rather than an individual or a
narrow select group; (2) is intended to be
applied generally and uniformly to all
similarly situated persons; (3) is designed
to operate only in future cases, that is,
prospectively; (4) prescribes a legal
standard or directive that is not otherwise
expressly provided by or clearly and
obviously inferable from the enabling
statutory authorization; (5) reflects an
administrative policy that (i) was not
previously expressed in any official and
explicit agency determination, adjudication
or rule, or (ii) constitutes a material and
significant change from a clear, past agency
position on the identical subject matter;
and (6) reflects a decision on
administrative regulatory policy in the
nature of the interpretation of law or
general policy. These relevant factors can,
either singly or in combination, determine
in a given case whether the essential agency
43 A-2231-08T2
action must be rendered through rule-making
or adjudication.
[Id. at 331-32.]
Although the Court formulated those factors in the context
of distinguishing rulemaking from adjudication, they also
provide a test for determining when rulemaking procedures are
necessary to validate agency actions or determinations.
Woodland Private Study Grp. v. N.J. Dep't of Envtl. Prot., 109
N.J. 62, 68 (1987). "[T]he factors are relevant whenever the
authority of an agency to act without conforming to the formal
rulemaking requirements is questioned." Doe v. Poritz, 142 N.J.
1, 97 (1995). They "need not be given the same weight, and some
factors will clearly be more relevant in a given situation than
others." Ibid. "The pertinent evaluation focuses on the
importance and weight of each factor, and is not based on a
quantitative compilation of the number of factors which weigh
for or against labeling the agency determination as a rule." In
re Provision of Basic Generation Serv., supra, 205 N.J. at 350.
We are satisfied that the NSPS and its User's Guide meet
all of the Metromedia factors. The use or non-use of the NSPS,
as well as the achievement of or failure to obtain the required
minimum points on the NSPS, directly affects the Department's
review of all applications covered by the "maximum extent
possible" requirement. In fact, avoidance of the "rigorous
44 A-2231-08T2
review" resulting from failure to use the NSPS provides a clear
incentive for its use. The NSPS is intended for ongoing use,
and is not an adjudicative decision or application of a
procedure under limited circumstances. It establishes a
standard for application submissions and agency evaluations that
is not otherwise expressly provided by or obviously inferable
from the Department's stormwater management rules or from any
statute or other regulation. It constitutes a material and
significant change from what applicants are required to submit
as to nonstructural stormwater management strategies under
N.J.A.C. 7:8-5.3(a). As already noted, it also represents a
significant change from the Department's own position at the
time it adopted the regulation, when it specifically rejected
suggestions that it create a formula because compliance with
those requirements is a "fact-sensitive" determination.
Finally, creating a fixed formula for assigning NSPS points and
percentages reflects a decision on regulatory policy not found
in regulations adopted through the APA.
We conclude that the Department's use of and reliance on
NSPS in connection with its evaluation of CareOne's applications
was impermissible because the NSPS procedure was not the subject
45 A-2231-08T2
of formal rulemaking.12 Consequently, in Docket No. A-2231-08,
we reverse the Department's approval of the applications, as
well as its issuance and modification of permits and related
approvals.
We affirm in Docket No. A-3837-09, and dismiss Docket No.
A-3400-10 as interlocutory. We remand the matter to the
Department for further proceedings consistent with this opinion.
For that reason, we need not consider any of the remaining
points raised on appeal.
Affirmed in part, reversed in part, dismissed in part, and
remanded. We do not retain jurisdiction.
12
We express no opinion, one way or another, concerning the
propriety of the use of the NSPS should the Department adopt it
through formal rulemaking. We note that, in the context of the
Delaware and Raritan Canal State Park Law of 1974 (N.J.S.A.
13:13A-1 to -15), the Department employed the APA's rulemaking
procedure to provide for use of the NSPS as an evaluative tool.
See N.J.A.C. 7:45-8.2(a)(16) and -8.4(a), (c).
46 A-2231-08T2