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Appeals Court upholds NJDEP’s discretion in an Environmental Rights Act

The Appellate Division recently affirmed all the challenged orders below. In this matter, there are two actions that were consolidation. In the first action, the Township of West Caldwell (“Township”) challenged two orders. The first order awarded Defendants Carant Limited Partnership (“Carant”) and Anthony Pio Costa, III (“Pio”) summary judgment in an action under the Environmental Rights Act (“ERA”), N.J.S.A. 2A:35A-1 to -14. The second order denied the Township’s cross-motion for summary judgment.  In the second action, a prerogative writs (“PW”) action was filed by the defendants against the Township and Robert McLoughlin, in his capacity as Construction Official of the Township. Again, the Township was appealing two orders. The first order vacated a portion of the February 2022 order awarding the Township relief on their counter claim. The second order denied the Township’s cross-motion to enforce the February 2022 order.

Carant is a New Jersey partnership and owns Lots 2 and 10 (the “subject property”). Pio Costa has an ownership interest in Lot 2 through the Carant partnership. He has a direct ownership interest in Lot 10. The subject property lies in a “flood fringe” section of a flood hazard area (“FHA”) of the Passaic River. Therefore, certain activities on the subject property are regulated by the New Jersey Department of Environmental Protection (“NJDEP”).

In 2013, the Township Planning Board adopted a resolution approving Carant’s application to construct a new building on the subject property, pursuant to requirements within the Developer’s Agreement (“DA”). In 2014, the NJDEP approved defendants’ application for an FHA individual permit. In 2016, Carant began grading, constructing a detention basin, and installing a pavement section. This pavement section included Belgian block curbing around the basin and a 4 inch thick subbase containing dense graded aggregate (“DGA”). The original plan called for a 4 inch think stabilized base course of asphalt over the DGA, but instead, Carant applied recycled asphalt millings (“RAP”) over the DGA. Carant did not document the origin of the RAP, how it was transported, or the amount deposited. In 2017, the NJDEP received a complaint about defendants alleged improper storage of asphalt millings on the subject property.

In 2019, the Township filed a complaint under the ERA alleging violations of the ERA, the SWMA, the CEHA, the FHA, and the Township’s General Ordinances. In 2020, Carant filed a PW Complaint against the Township, alleging their denial of Carant’s construction permit was arbitrary, capricious, and unreasonable. Following discovery, Carant moved for summary judgment in the ERA action.

In 2021, Judge Jeffrey B. Beacham granted defendants motion for summary judgment. In his oral opinion, Judge Beacham noted that the Township’s engineer did not flag RAP millings as a problem during his February 2017 visit, nor did the NJDEP find any land use violations during their March and April 2017 site inspections. When Carant’s engineer asked the NJDEP engineer if RAP could be used as a base course, the engineer did not flag that an additional permit would be required. The defendants also engaged in environmental testing in March 2018, the report of said revealed no contamination due to the RAP. Based on these findings, Judge Beachman determined defendants did not violate SWMA, CEHA, or the FHA. Judge Beachman also concluded that the Township Ordinance, while within the ambit of the ERA, failed to set forth any objective criteria for how the conditions of the resolution could be satisfied. In January 2022, Judge Beachman heard defendant’s motion for counsel fees under the ERA, which he denied, as he found the Township did not act unreasonably in bringing an ERA claim.

In February 2022, a different judge, who presided over the PW trial, issued an oral opinion dismissing the Complaint and granting the Township relief on their counterclaim. Defendants moved for reconsideration. In April 2022, the PW judge orally granted defendants reconsideration motion, as he had been unaware of Judge Beacham’s determination in the ERA action.

On appeal, the Township contends that the judge mistakenly granted Defendant’s motion for summary judgment. Judge Beachman wrongfully dismissed the ERA action, as the statute does not require demonstration of environmental harm when there is a continuing violation. Additionally, the Township argues that the dismissal was also based on erroneous factual assumptions.  In the PW action, the Township contends that the PW judge erred in granting defendant’s motion for reconsideration, denying the enforcement motion, and relying on Judge beachman’s decision to dispose of the PW action.

The Appellate Court found these arguments unavailing. They acknowledged that while the ERA creates a private cause of action for declaratory and injunctive relief, there are limits on a private cause of action, because the DEP must be able to make determinations based on their expertise. Regarding the PW action, the Appellate Court noted that a trial judge is permitted to take judicial notice of certain facts not in evidence. As always, the Appellate Court’s review is de novo. Governed by these standards and in consideration of Judge Beacham’s analysis, the Appellate Court affirmed the challenged orders.

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