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In 2010 this author contributed an article discussing the difficulty that anyone other than an applicant had in administratively contesting a permit. Stuart J. Lieberman and Shari M. Blecher, “It’s No Party for Third Parties,” 200 N.J.L.J. 1, 1-2 (2010). Things have not improved.
In two recent cases, the Appellate Division made clear that third parties should not expect an OAL hearing. The first is In re Challenge to the Denial of the Request for Adjudicatory Hearing & the Grant of CAFRA Permit Regarding Mordechai Sternstein c/o GDMS Holdings, No. A-3561-18, 2021 N.J. Super. Unpub. LEXIS 1214 (App. Div. Jun. 22, 2021). Where the court briefly reviewed “the record in light of the applicable legal precedents” and easily affirmed a denial of a non-applicant’s hearing request. Id. at *10.
In the second, In re Truesdale, No. A-5696-18, 2021 N.J. Super. Unpub. LEXIS 1592 (Jul. 29, 2021), the court upheld the DEP’s denial of a non-applicant’s request for a hearing. Here, the court considered the “record and applicable legal standards,” and given the “compelling precedents” determined that the appellant’s arguments in support of its request for an adjudicatory hearing fell short ….” Id. at *5-*7.
While non-applicants may be able to seek and sometimes obtain some form of relief from the Appellate Division on a direct appeal, this avenue is often lacking because there is no ability to engage in discovery and to create a record in the Appellate Division. When the ability to create an administrative record is severely lessened, full and meaningful appellate review is not possible.
Compared with traditional land use law, where neighbors and other objectors may fully participate in Planning Board and zoning hearings, the inequality is most glaring. It thus seems illogical that applicants for permits from State agencies, including environmental permits from DEP and other agencies, have what is practically an exclusive right to a hearing if an application is denied. At the same time, neighbors with legitimate grievances related to a permit application and approval are locked out of the process.
*** This is a synopsis of an article published in the September 2, 2021 edition of the New Jersey Law Journal. The article was written by Stuart Lieberman, Esq. of Lieberman Blecher & Sinkevich and Jordan Asch Esq. of Asch Legal LLC.
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