Current through Register Vol. 56, No. 18, September 16, 2024
(a) If the issuance, modification, or denial
of an individual freshwater wetlands permit would constitute a taking without
just compensation, and provided the conditions at (b) below are met, the
Department may do any one or more of the following:
1. Compensate the property owner for the lost
value of the property;
2. Condemn
the affected property pursuant to the Eminent Domain Act of 1971, N.J.S.A.
20:3-1 et seq.; and/or
3.
Reconsider and modify its action or inaction concerning a permit so as to
minimize the detrimental effect to the value of the property.
(b) The Department may reconsider
and modify its action or inaction concerning a permit so as to minimize the
detrimental effect to the value of the property, provided:
1. The Department has rendered a decision on
a permit application under the rules in this chapter as strictly
applied;
2. All administrative and
judicial appeals of the permit decision have been concluded; and
3. Any of the following requirements are met:
i. A court has determined that the issuance,
modification, or denial of an individual freshwater wetlands permit would
constitute a taking of property, and the property owner thereupon submits a
request for a reconsideration and modification of the permit action or
inaction;
ii. A takings complaint
has been filed with the court or the court has determined that the issuance,
modification or denial of an individual freshwater wetlands permit would
constitute a taking of property, and the Department initiates the
reconsideration; or
iii. The
issuance, modification, or denial of an individual freshwater wetlands permit
is for a single-family home or duplex and the Department initiates the
reconsideration prior to the filing of a takings complaint.
(c) n making the
determination to reconsider and modify its action or inaction concerning a
permit so as to minimize the detrimental effect to the value of the property
under (a) above, the Department shall prepare a written analysis that evaluates
three factors:
1. The investments the
property owner made in the property that is the subject of the individual
freshwater wetlands permit application and whether the investments were
reasonable, and reflected reasonable expectations, in accordance with (d)
below;
2. The minimum beneficial
economically viable use of the property, in accordance with (e) below;
and
3. The environmental impacts of
the minimum beneficial economically viable use for the property, and their
consistency with the goals of the Freshwater Wetlands Protection Act, in
accordance with (f) below.
(d) In determining whether the property
owner's investments in the property as a whole were reasonable, and reflected
reasonable expectations, the Department shall evaluate the following
information:
1. Conditions at the time of the
investment. That is, the investment shall have been made in pursuit of
development that would likely have been legally and practically possible on the
property, considering all constraints existing and reasonably ascertainable at
the time of the investment. For example, if a property owner bought property
containing freshwater wetlands regulated under this chapter, it would not be
reasonable to expect that the property could be developed without constraints.
In determining conditions at the time of the investment, the Department shall
consider, at a minimum, the following:
i.
Existing zoning and other regulatory requirements and conditions;
ii. Historic landmarks or other historic or
cultural resources, as described at N.J.A.C. 7:7A-19.5;
iii. The likelihood of obtaining other
necessary approvals such as wastewater treatment approvals or approvals from
other local, State or Federal agencies;
iv. Terrain and other site conditions, and/or
environmental constraints, which could affect the potential uses of the
property as a whole;
v. The
existence of, or likelihood of obtaining, services to the property such as
sewers or electricity; and
vi. Land
uses on adjacent properties and in the area where the property is
located;
2. Costs
actually incurred in pursuit of development of the property as a
whole;
3. Costs incurred in
furtherance of a lawful action. For example, if the property owner began the
project without the necessary permits, the cost of defending against an
enforcement action for this violation would not constitute a reasonable
investment that reflects reasonable expectations;
4. Costs relating only to the specific
property as a whole that is the subject of the individual freshwater wetlands
permit application, and not including costs related to other properties;
and
5. Any other factor affecting
the property or the property owner, which is related to the reasonableness of
the investments, the expectations, and/or the proposed use of the
property.
(e) In
determining the minimum beneficial economically viable use of the property, the
Department shall consider existing legal precedent at the time of the
determination. A use shall not be excluded from consideration as a minimum
beneficial economically viable use merely because it diminishes the value of
the property as a whole, does not result in a profit, reduces the marketability
of the property as a whole, or does not allow the property owner to recoup all
reasonable investments identified under (c) above.
(f) In determining the environmental impacts
of any minimum beneficial economically viable uses of the property and the
consistency of those impacts with the goals of the Freshwater Wetlands
Protection Act, in accordance with (c) above, the Department shall evaluate
whether the minimum beneficial economically viable use would:
1. Adversely affect the quality and resource
value classification of the wetland, pursuant to N.J.A.C.
7:7A-3.2
, and the quantity of
freshwater wetlands, transition areas, and/or State open waters to be
disturbed;
2. Adversely affect
other protected resources, for example, historic or cultural resources, as
described at N.J.A.C. 7:7A-19.5, ecologically unique areas or critical wildlife
habitat;
3. Result in irreversible
losses of values and functions provided by freshwater wetlands, transition
areas, and/or State open waters, for example, flood control, endangered species
habitat, or water quality and whether such losses could be mitigated;
and
4. Adversely affect public
health, safety and welfare, and fish and wildlife.
(g) The Department shall not modify its
action or inaction concerning a permit and approve a minimum beneficial
economically viable use as a result of the reconsideration of the application
of a rule(s) in this chapter under this section if that use would cause any one
of the following:
1. Irreversible losses of
values and functions provided by freshwater wetlands, transition areas and/or
State open waters that provide essential breeding, spawning, nesting, feeding,
resting, or wintering habitats for fish and wildlife, including migratory
birds, endangered species, and commercially and recreationally important
wildlife. For the purposes of this section, "irreversible losses" means an
alteration to the wetland, transition area or State open water that would
eliminate one or more of the essential characteristics which provides the
breeding, spawning nesting, feeding, resting or wintering habitat for the
species in question, and that could not be mitigated;
2. Irreversible losses in water quality of
FW-1 or FW-2 trout production waters and their tributaries, resulting in
degradation of ground or surface waters, in violation of Federal, State or
local water quality standards; or
3.
Irreversible losses of wetlands and/or State open waters, providing essential
flood and storm damage protection by absorption, the storage of water during
high runoff periods and the reduction of flood crests, resulting in creation of
a public nuisance.
(h) A
property owner may request that the Department reconsider and modify its action
or inaction concerning a permit under (a) above only after:
1. The conclusion of any administrative
and/or judicial appeal of the permit decision; and
2. A court has determined that the issuance,
modification, or denial of an individual freshwater wetlands permit without
reconsideration would result in a taking of property without just
compensation.
(i) A
complete request for the Department to reconsider and modify its action or
inaction concerning a permit under this section shall include the following
items:
1. A completed application form, as
described at N.J.A.C.
7:7A-16.7(a)
1 and
available from the Department at the address set forth at N.J.A.C.
7:7A-1.4
, indicating a request for
reconsideration and the type of permit being requested;
2. Unconditional written consent from the
owner of the site for Department representatives to enter the site to conduct
site inspections;
3. Documentation
in accordance with N.J.A.C. 7:7A-17.5 that public notice of the request was
provided in accordance with the requirements at N.J.A.C.
7:7A-17. The public notice shall follow the form provided by the
Department, and shall state that a request for reconsideration has been
submitted to the Department, that the request can be reviewed at the municipal
clerk's office or at the Department, and that comments may be submitted to the
Department within 15 calendar days of receipt of the notice. This notice may be
combined with the offer to sell the property required under (i)7
below;
4. Document(s) showing when
the property as a whole was acquired, the purchase price of the property as a
whole, and the instrument which documents the applicant's real property
interest;
5. Document(s) showing
the amount and nature, as well as the date of any investments made to maintain
and/or develop the property as a whole, other than the purchase
price;
6. The language of a
proposed conservation restriction that meets the requirements of (m)2
below;
7. Documentation that the
property has been offered for sale in a letter following the form provided by
the Department, to all owners of property, including easements as shown on the
tax duplicate, within 200 feet of the property as a whole, and to the land
conservancies, environmental organizations, and government agencies on a list
supplied by the Department; and that no reasonable offer to purchase, that
assumes a minimum beneficial economically viable use, has been received. This
documentation shall include the following:
i.
A copy of each letter that the property owner sends under this
subsection;
ii. All responses the
property owner receives to the letters sent under this subsection. Each
response shall be submitted to the Department within 15 calendar days after the
property owner's receipt of the response; and
iii. A list, certified by the municipality,
of all owners of real property within 200 feet of the property as a whole,
including owners of easements as shown on the tax duplicate. The list of
property owners certified by the municipality shall be no more than one year
old;
8. The written offer
of sale required under (i)7 above shall be sent by certified mail and shall:
i. Indicate that the offer is open for a
period of at least 90 calendar days;
ii. Include a copy of a fair market value
appraisal, performed by a State-licensed appraiser, that assumes that a minimum
beneficial economically viable use of the property would be allowed;
iii. Include full disclosure of the location
on the property of any freshwater wetlands, transition areas, and/or State open
waters; and
iv. Indicate that the
property owner has requested a reconsideration of the Department's action or
inaction concerning a permit under this section;
9. Site plans showing the project that is
proposed in order to provide a minimum beneficial economically viable
use;
10. Information and/or
certifications regarding the presence or absence of endangered or threatened
species habitat, historic or archaeological resources, as described at N.J.A.C.
7:7A-19.5, or other features on the site relevant to determining compliance
with the requirements of this chapter;
11. A mitigation proposal that complies with
N.J.A.C. 7:7A-11, to offset the impacts of the project on freshwater wetlands,
transition areas, and/or State open waters;
12. Documentation that the proposed project
will cause the least environmental impact possible, while still providing a
minimum beneficial economically viable use of the property consistent with
constitutional standards;
13. A
copy of the court determination that the Department's issuance, modification,
or denial of an individual freshwater wetlands permit would constitute a taking
without just compensation; and
14.
Documents showing that the property owner has concluded all administrative and
judicial appeals of the Department's decision on the application for an
individual freshwater wetlands permit. Such documentation shall include the
last of the following (submitted after the appeal period for the applicable
decision has expired):
i. A Department
decision on the application for an individual freshwater wetlands permit, made
in accordance with the rules as strictly applied;
ii. A final decision issued by the
Commissioner regarding the Department's decision on the application for an
individual permit if the property owner contested the permit decision;
and
iii. Documentation that all
appeals of any final decision issued by the Commissioner under (i)14ii above
have been concluded; and
15. The names and addresses of all
consultants, engineers, and other persons providing technical assistance in
preparing the request for reconsideration.
(j)In the case where the Department initiates
the reconsideration of whether to modify its action or inaction concerning a
permit under (a) above, the Department shall, upon initiation of the
reconsideration process, follow all steps described in (j)1 through 3 below. In
the case where the property owner is requesting that the Department reconsider
and modify its action or inaction concerning a permit, the Department shall,
upon initiation of the reconsideration process, follow the steps described in
(j)1i and iii, 2, and 3 below:
1. Provide the
following notifications:
i. Publication in
the DEP Bulletin;
ii. In accordance
with the requirements at N.J.A.C. 7:7A-17; and
iii. To those who provided comments on the
previous application that is the subject of the
reconsideration;
2.
Include in the notice the applicant's name; project name, if applicable;
project number; county and municipality of the project; and an executive
summary describing the development that is the subject of the reconsideration;
and
3. Provide a 15-day comment
period, commencing from the date of publication of the notice in the DEP
Bulletin.
(k) If the
Department determines to approve a development upon reconsideration under this
section, the Department shall provide notice of the development that the
Department proposes to allow under the reconsideration following the same
procedure described at (j) above, except that the Department shall provide a
30-day comment period, commencing from the date of publication of the notice in
the DEP Bulletin.
(l) The
Department shall complete the written analysis required under (c) above, which
shall incorporate its decision on the request for reconsideration and
modification of its action or inaction concerning a permit, as follows:
1. For a request for reconsideration under
(b) and (h) above, no later than 180 calendar days from the Department's
receipt of a complete request under (h) above; or
2. For a reconsideration initiated by the
Department under (b) above, no later than 180 calendar days from the
publication of notice in the DEP Bulletin under (j) above.
(m) If the Department approves a development
upon reconsideration and modification of its action or inaction concerning a
permit under (a) above, the approval shall, at a minimum:
1. Be the minimum relief necessary to enable
the property owner to realize a minimum beneficial economically viable use of
the property as a whole, consistent with constitutional standards;
and
2. Ensure that any part of the
property as a whole that the Department does not allow to be developed upon
reconsideration and modification of its action or inaction concerning a permit
will be protected from future development by a recorded conservation
restriction.
(n) The
property owner or any other person with a particularized property interest who
is aggrieved by the Department's determination on a reconsideration of the
Department's action or inaction concerning a permit may request an adjudicatory
hearing on the reconsideration determination pursuant to the procedures set
forth at N.J.A.C. 7:7A-21.1.
