PRINCETON BATTLEFIELD AREA PRESERVATION SOCIETY VS. INSTITUTE FOR ADVANCED STUDY(DELAWARE AND RARITAN CANAL COMMISSION)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3428-14T3
PRINCETON BATTLEFIELD AREA
PRESERVATION SOCIETY, A New
Jersey Not-For-Profit
Corporation, ASHER LURIE, KIP
CHERRY, JERALD HURWITZ, MARK
CROSBY, SALLY CROSBY, WILLIAM
MARSCH, IAIN HAIGHT-ASHTON,
KIM GALLAGHER, JOSEPH CARNEY,
MRS. CARNEY, RICH PATTERSON,
PAUL LUANE, BILL MEYER, and
GLENN WILLIAMS,
Plaintiffs-Appellants,
v.
INSTITUTE FOR ADVANCED STUDY
and DELAWARE AND RARITAN
CANAL COMMISSION,
Defendants-Respondents.
________________________________________________
1
Submitted October 25, 2016 – Decided July 7, 2017*
Before Judges Messano, Espinosa, and Guadagno.
1
Shortly after this opinion was submitted to the Clerk's office
for filing in early December 2016, respondent filed a motion to
stay appellate proceedings. By order entered January 4, 2017, we
granted a stay on the condition that the Clerk's office was to
file and release the opinion on June 30, 2017, unless a fully
executed stipulation of dismissal was received, and the opinion
is now being filed and released.
On appeal from the Delaware and Raritan Canal
Commission, Docket No. 14-3791B.
Bruce I. Afran, attorney for appellants.
Stevens & Lee, P.C., attorneys for respondent
Institute for Advanced Study (Bradley L.
Mitchell and Christopher S. Tarr, on the
brief).
Christopher S. Porrino, Attorney General,
attorney for respondent Delaware and Raritan
Canal Commission (Melissa Raksa, Assistant
Attorney General, of counsel; Melissa P.
Abatemarco, Deputy Attorney General, on the
brief).
PER CURIAM
The Princeton Battlefield Area Preservation Society (the
Society) and a number of individuals (collectively, appellants)
appeal from the final agency decision of the Delaware and Raritan
Canal Commission (the Commission) approving a development
application submitted by the Institute for Advanced Study (the
Institute). We briefly provide the salient factual and procedural
history.
The Institute is a private, independent, postgraduate center
for theoretical research located on 589 wooded and farmland acres
in Princeton. The Commission was "established in the Department
of Environmental Protection" (DEP), N.J.S.A. 13:13A-11(a), under
the Delaware and Raritan Canal State Park Law of 1974, N.J.S.A.
13:13A-1 to -15. The Legislature directed the Commission to
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"preserve, maintain, improve, and enlarge" the Park, N.J.S.A.
13:13A-2(b), prepare and implement a master plan for the Park's
physical development, N.J.S.A. 13:13A-2(b) and -11(h), protect the
Park from local zoning, N.J.S.A. 13:13A-2(a), and "coordinate and
support activities by citizens' groups to promote and preserve the
park." N.J.S.A. 13:13A-11(h).
The Legislature authorized the Commission to establish a
"region appertaining to and including the [P]ark" within which it
"shall review and approve, reject, or modify" all private and
public development projects. N.J.S.A. 13:13A-3(f); N.J.S.A.
13:13A-11(h); N.J.S.A. 13:13A-13(d); N.J.S.A. 13:13A-14(b) and
(c); N.J.A.C. 7:45-1.1. See Infinity Outdoor, Inc. v. Del. &
Raritan Canal Comm'n, 388 N.J. Super. 278, 285 (App. Div. 2006)
(The Commission "is assigned the responsibility to delineate zones
in which it reviews all private and public projects that may affect
the Park," and is the "ultimate administrative arbiter of any
project within the review zone."). By regulation, the Commission's
reviewing authority includes Zone A, areas within 1000 feet on
either side of the center line of the Delaware and Raritan Canal,
and Zone B, areas more than 1000 feet from the Canal. N.J.A.C.
7:45-1.3. The Institute's property is located in Zone B.
Beginning in 2012, the Institute embarked upon a plan to
develop permanent faculty housing near its campus. After a prior
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proposal was rejected in 2014, the Commission's staff accepted as
complete the Institute's renewed application on January 16, 2015,
which is the subject of this controversy. The plan contemplated
construction of seven single-family homes and two four-unit
townhouses west of the campus. The site bordered Princeton
Battlefield State Park on the west and preserved open space on the
south. In addition to the residences, the application anticipated
construction of a 1000-foot-long asphalt cul-de-sac, sidewalks, a
retaining wall, a wetland stormwater management basin, and a
stormwater conveyance system consisting of grassed swales along
the proposed roadway's edge. Concluding the project met applicable
regulatory standards, the staff recommended approval, and the
Executive Director submitted the application to the Commission for
action at its January 21, 2015 meeting.
Six of the seven appointed commissioners attended the
meeting. Appellants objected to the destruction of areas of mature
trees and presented expert testimony regarding the project's
detrimental impact to an unnamed water tributary and its associated
forested wetlands and stream corridor. In particular, appellants
argued the retaining wall would encroach into the stream corridor,
and they urged the commissioners to consider its potential impacts.
The Institute presented expert testimony that rebutted appellants'
claims.
4 A-3428-14T3
Commissioner Mark Texel, the Director of DEP's Division of
Parks and Forestry, State Park Service, sat on the Commission as
the DEP Commissioner's designee, N.J.S.A. 13:13A-11(a)(1). Texel
posed a question regarding the visual impact of the development
on the historical battlefield park. The Institute indicated it
would create a visual buffer by planting evergreens and would
further protect the area by way of a conservation easement.
Texel went on to explain that he had voted against the
Institute's application in 2014 because it proposed an
encroachment into the tributary's stream corridor and sought a
waiver from the Commission's regulations. Stating that he was
"taking off his hat as a Commissioner" and expressing his personal
feelings, Texel said he agreed with the Society's president, who
had testified about the importance and historical significance of
preserving the Princeton Battlefield. Texel also expressed
agreement with the Commission's vice chairman, who stated that,
"as a private citizen," he would prefer the site not be developed,
but the application was "compliant" with all regulations.
Ultimately, Texel abstained from voting. Because two other
commissioners voted against the application, the Institute's
proposal failed to garnish the required four affirmative votes for
approval.
5 A-3428-14T3
Although details are unclear from the record, Texel
apparently requested that the Commission reconsider the
application. Notice of the Commission's February 18, 2015 meeting
included an agenda listing a motion for reconsideration of the
Institute's application. All seven commissioners attended the
February 18 meeting.
In moving for reconsideration, Texel stated he "was . . .
prepared to vote in favor of approving th[e] proposal at [the]
January 21, 2015 meeting[]" because it fully complied with the
Commission's regulations. However, Texel explained:
As you recall at last month's meeting, I
abstained from voting on the motion . . . to
approve the proposal. I did so based on
comments by our Commissioners prior to the
roll call vote that there were already
sufficient votes in support of the proposal
for it to pass without my vote needed.
Therefore, I chose to abstain from voting out
of respect for the objector . . . who has been
a very strong and faithful nonprofit partner
in the State Park Service. However, I believe
the appropriate outcome is that this project
be approved because it does comply with the
. . . Commission's regulations.
Therefore, . . . I respectfully request
reconsideration of the proposal so that I may
cast my vote in support of it.
The commissioner who had been absent from the January meeting
announced he had reviewed the testimony of that meeting and was
now prepared to vote on the merits of the application.
6 A-3428-14T3
Appellants objected. The Society's counsel argued the
Commission lacked the authority to sua sponte reconsider its prior
action. He further claimed that the Commission's regulations
provided no authority for reconsiderations and that no one had
alleged fraud or mistake of law or fact.
The commissioners voted to approve Texel's motion for
reconsideration, and then opened the meeting to new public comment
on the Institute's application. The Commission's vice chairman
explained that all comments from the prior month's meeting also
would be considered.
The Society's counsel contended that the Commission's staff
had failed to consider the adverse impact of construction on the
stream corridor, something he asserted was required by regulation
even if there were no actual construction within the corridor.
The Commission's Executive Director refuted this claim, noting
that review of any impact was only required when a project actually
encroached into the stream corridor.
By a vote of five-to-two, the Commission approved the
Institute's application, with Texel voting in the affirmative.
The Commission issued a certificate of approval subject to certain
conditions on February 18, 2015. This appeal ensued.
7 A-3428-14T3
I.
Appellants argue we should vacate the Commission's approval
because, absent a showing of fraud or material change in facts or
applicable law, it had no authority to reconsider the January 2015
vote simply to permit a commissioner, who had abstained for well-
considered policy reasons, to now cast a vote. Appellants contend
permitting reopening of the application "injures the public
interest and violates public policy." These arguments present
purely legal questions which are subject to our de novo review.
Univ. Cottage Club of Princeton N.J. Corp. v. N.J. Dep't of Envtl.
Prot., 191 N.J. 38, 48-49 (2007).
We begin by recognizing an "agency's authority encompasses
all express and implied powers necessary to fulfill the legislative
scheme that the agency has been entrusted to administer." In re
Application of Virtua-W. Jersey Hosp. Voorhees for Certificate of
Need, 194 N.J. 413, 422-23 (2008). Although the agency's exercise
of authority through "inherent or implied power is not boundless,"
N.J. Dep't of Labor v. Pepsi-Cola Co., 170 N.J. 59, 61 (2001), our
courts have long recognized that an administrative agency has
inherent power to reconsider, reopen and rehear prior decisions
in the absence of any legislative restriction to the contrary. In
re Kallen, 92 N.J. 14, 24 (1983); In re Parole Application of
Trantino, 89 N.J. 347, 364 (1982); Handlon v. Town of Belleville,
8 A-3428-14T3
4 N.J. 99, 106-07 (1950). See also E. H. Schopler, Annotation,
Power of Admininstrative Agency to Reopen & Reconsider Final
Decision as Affected by Lack of Specific Statutory Authority, 73
A.L.R. 2d 939, 943-46 (1960) (discussing cases).
Appellants claim, however, that in the absence of fraud or a
material change in facts or law, an agency cannot exercise its
inherent power simply because one of its members had a change of
heart. They rely largely upon our decision in Trap Rock
Industries, Inc. v. Sagner, 133 N.J. Super. 99, 112-13 (App. Div.
1975), aff'd by equally divided court, 69 N.J. 599, 600 (1976).
There, following divestment by a previously-convicted
corporate principal, the Commissioner of the Department of
Transportation (DOT) conducted an administrative hearing and
reinstated the plaintiff-corporation as a qualified bidder on DOT
projects. Id. at 102-03. More than one year later and after the
plaintiff had been awarded a substantial DOT contract as the lowest
bidder, the successor Commissioner conducted another hearing based
upon the corporate plaintiff's guilty plea to federal tax
violations. Id. at 103-05. He debarred the plaintiff based upon
this subsequent development. Id. at 104-05. We recognized that
the Commissioner was entitled to investigate whether the plaintiff
was a responsible bidder, id. at 106, but we found he erred in
concluding the corporation's guilty plea was grounds for debarment
9 A-3428-14T3
because the crime was "founded upon the past deeds of individuals
no longer associated with the corporation." Id. at 108.
In addressing the plaintiff's contention that the rehearing
was barred by collateral estoppel or res judicata, we said:
It is fitting . . . that, subject to statutory
restrictions, . . . an administrative agency,
in appropriate circumstances, have the power
to reassess or reconsider its actions in order
to perform fully its responsibilities as a
regulatory body. In this sense, the power to
reconsider, to rehear and to revise
determinations may be regarded as inherent in
administrative agencies. This power to
reappraise and modify prior determinations may
be invoked by administrative agencies to
protect the public interest and thereby to
serve the ends of essential justice.
It does not follow, however, that in
exercising the necessary and appropriate power
to reconsider the status of a contractor as
an eligible bidder the Commissioner was free
to disregard completely issues that were fully
and fairly resolved prior thereto. The power
to reconsider must be exercised reasonably,
with sound discretion reflecting due
diligence, and for good and sufficient cause.
Merely because the Commissioner has --
and should exercise -- the power to reappraise
the eligibility of a qualified contractor in
light of meaningful subsequent developments,
as he is authorized to do by virtue of N.J.S.A.
27:7-35.8, does not mean that a relitigation
of previously resolved issues is fair,
appropriate or necessary. Even in the context
of a reopened hearing in an administrative
agency proceeding there is a proper use of res
judicata or, more precisely, collateral
estoppel. These principles should be invoked
discriminately to serve the ends of
10 A-3428-14T3
administrative justice. A balancing of such
factors as new developments or even new
evidence of old developments, the advantages
of repose, party reliance, the thoroughness
of the earlier decision and the showing of
illegality, fraud, mistake and the like should
be considered[.]
[Id. at 109-10 (citations omitted).]
In reversing, we concluded that the Commissioner "view[ed] the
matter in a different and stricter light than his predecessor[,]"
and, "under all of the circumstances," there was no good cause
justifying "recanvassing and reconsideration . . . of the factual
issues resolved in the previous proceedings . . . ." Id. at 112-
13.
In our view, Trap Rock supports the general principles
governing agency reconsideration already discussed, and does not,
as appellants assert, confine exercise of an agency's inherent
power to a narrow set of circumstances involving fraud or a
material change of fact or law. Rather, as we have subsequently
made clear, "[t]he only limitations are the considerations of
reasonableness, fairness and good cause." In re 1982 Final
Reconciliation Adjustment for Jersey Shore Med. Ctr., 209 N.J.
Super. 79, 92 (App. Div. 1986) (citing Trantino, supra, 89 N.J.
at 364; Trap Rock, supra, 133 N.J. Super. at 109-10); See also
Duvin v. State, Dep't of Treasury, Public Emps.' Ret. Sys., 76
N.J. 203, 207 (1978) (recognizing the agency's power "to reopen
11 A-3428-14T3
or to modify and to rehear orders previously entered by it . . .
should be invoked only for good cause shown[, and] . . . must be
exercised reasonably, and . . . with reasonable diligence"). "Good
cause may be established by showing that reopening proceedings
would 'serve the ends of essential justice and the policy of the
law[.]'" In re Van Orden, 383 N.J. Super. 410, 421 (App. Div.
2006) (quoting Handlon, supra, 4 N.J. at 107).
In discussing limitations on administrative reconsideration,
the Court in Ruvoldt v. Nolan, 63 N.J. 171, 183-85 (1973), held
that one of the factors to be considered was the timing of the
review, as this impacts the extent of reliance by affected
individuals and the equities of the case. "The limitation of
reasonable diligence in reopening prior administrative
determinations has been recognized in cases decided since
Handlon[.]" Skulski v. Nolan, 68 N.J. 179, 195 (1975). The Court
explained that "equitable considerations are relevant in
evaluating the propriety of conduct taken after substantial
reliance by those whose interests are affected by subsequent
actions." Id. at 198.
In this case, the Commission's rehearing took place twenty-
eight days after the January 2015 vote. Notably, appellants could
not have relied upon the finality of the January vote. N.J.A.C.
7:45-7.1 states:
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(a) Subject to the limitations of (h)
below, a person, including a municipality,
county, or municipal or county approving
agency, may request an adjudicatory hearing
to contest a decision on an application for
an individual approval . . . .
(b) To contest a decision listed at (a)
above, a person shall submit a hearing request
within 30 calendar days after receipt of the
notice of decision . . . .
. . . .
(e) The Commission shall notify the
requester in writing if the request for a
hearing is granted and, if denied, the reasons
why. If a hearing request is granted, the
Commission shall refer the matter to the
Office of Administrative Law for an
adjudicatory hearing . . . .
(f) At the conclusion of any adjudicatory
hearing . . . , the administrative law judge
will submit an initial decision to the
Commission. The Commission shall issue a
final decision affirming, rejecting or
modifying the initial decision . . . .
Therefore, pursuant to this regulation, had the Institute
requested and been granted an adjudicatory hearing, regardless of
its outcome, the Commission would have had another opportunity to
reconsider and vote to approve the Institute's project. Appellants
could not have relied upon the results of the January vote as the
final word on the Institute's application.2
2
N.J.A.C. 7:45-7.1(h) states that "[n]othing in this section shall
be construed to provide a right to an adjudicatory hearing in
13 A-3428-14T3
Here, Texel moved for reconsideration following a mistaken
belief he held in January that his vote was unnecessary to approve
the Institute's application. As he later revealed, he understood
at the time of the January meeting that the application fully
complied with the Commission's regulatory scheme. He abstained,
not in furtherance of his role as a commissioner, but, rather, out
of deference to the Society's laudable public service and DEP's
general support for its goals. We do not condone this reasoning,
nor what occurred as a result, i.e., reconsideration at a
subsequent meeting. However, in light of the inherent power of
the Commission to reconsider its prior actions to "serve the ends
of essential justice and the policy of the law," Handlon, supra,
4 N.J. at 107, we see no reason to reverse.3
contravention of the Administrative Procedure Act [(APA)],
N.J.S.A. 52:14B-3.1 through 3.3." Appellants are considered
third-party objectors under the APA. N.J.S.A. 52:14B-3.2.
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 bestows no
automatic right to a formal administrative hearing to contest the
issuance of a permit unless the third-party objector can establish
a statutory or constitutional right to that hearing, In re
Freshwater Wetlands Statewide Gen. Permits, 185 N.J. 452, 463-64
(2006). We conclude that appellants were not required to
ostensibly exhaust administrative remedies by seeking review under
N.J.A.C. 7:45-1 before filing this appeal.
3
We hasten to add that appellants have understandably not argued
Texel had a disqualifying interest in the proceedings. See, e.g.,
14 A-3428-14T3
Appellants separately argue that the Commission's actions
"injure[] the public interest and violate public policy." For the
reasons already expressed, we disagree. The argument requires no
further discussion. R. 2:11-3(e)(1)(E).
II.
The Commission's regulations define a stream corridor as
any water course that flows into the Park, its
tributaries, the 100-year floodplain
associated with the water course and its
tributaries, and all of the land within a 100-
foot buffer adjacent to the 100-year flood
line associated with the water courses and
their tributaries. . . . A stream corridor
starts from the point that the water course
enters the Park, upstream to the point that
the water course or its tributaries drain less
than 50 acres.
[N.J.A.C. 7:45-1.3.]
Pursuant to N.J.A.C. 7:45-9.1, projects that "include[] a portion
of a stream corridor" must be reviewed for "stream corridor
impact." N.J.A.C. 7:45-9.3 prohibits certain uses in a stream
corridor, such as construction of new structures, N.J.A.C.
7:45-9.3(a)(1). To avoid the Commission's strict adherence to
this regulation or to any of its other review standards, applicants
can request a waiver under the procedures set forth in N.J.A.C.
Thompson v. City of Atl. City, 190 N.J. 359, 374 (2007) ("It is
the potential for conflict, rather than proof of an actual conflict
or of actual dishonesty, that commands a public official to
disqualify himself from acting on a matter of public interest.").
15 A-3428-14T3
7:45-12.1 to -12.9. The Institute's 2014 application proposed
encroachments in a stream corridor, necessitating a waiver
pursuant to N.J.A.C. 7:45-12.4. The Commission rejected the
Institute's 2014 application citing the encroachments as a reason.
In evaluating the current application, the Commission's staff
considered compliance with various regulatory standards governing
storm water and groundwater impacts. N.J.A.C. 7:45-8.4 to -8.7.
The staff also concluded: "The proposed development is located
outside of the delineated stream corridor. Since no development
is located within the stream corridor, the project is not subject
to stream corridor review pursuant N.J.A.C. 7:45-9."
Appellants argue that even if reconsideration had been
appropriate, the Commission "acted under a misunderstanding of
[its] jurisdiction . . . to review . . . Zone B projects." Although
the experts and the Commission's staff all agreed that the proposed
development would not encroach into the unnamed tributary's
delineated stream corridor, appellants rely upon N.J.A.C.
7:45-2.3, which governs the Commission's general scope of review
for approvals, authorizations and waivers. That regulation
provides:
(a) In the Review Zone, the Commission
shall review governmental and private projects
that have the potential to cause an adverse
impact on the Park including drainage,
aesthetic, historic and ecological
16 A-3428-14T3
impacts . . . . Each project . . . will be
reviewed for its conformance with the
objectives of the Master Plan and with the
specific standards of this chapter. Review
will address four specific types of impact:
1. Stormwater runoff and water quality
impact;
2. Stream corridor impact;
3. Visual, historic and natural quality
impact; and
4. Traffic impact.
. . . .
(c) In each case, the scope of review
will depend upon the size and location of the
project, as follows . . . :
. . . .
2. In Zone B:
i. Each major project is reviewed for
stormwater runoff and water quality
impact, and for stream corridor impact;
and
ii. Any major project within one mile of
any portion of the Park and having direct
access to a road that enters Zone A is
reviewed for traffic impact.
[N.J.A.C. 7:45-2.3 (emphasis added).]
Appellants contend this regulation required the Commission to
consider impacts upon the stream corridor of the unnamed tributary.
We disagree.
17 A-3428-14T3
"[W]e must extend substantial deference to an agency's
interpretation and application of its own regulations,
particularly on technical matters within the agency's special
expertise." Pinelands Pres. All. v. State, Dep't of Envtl. Prot.,
436 N.J. Super. 510, 524 (App. Div.) (citing In re Freshwater
Wetlands Prot. Act Rules, 180 N.J. 478, 488-89 (2004)), certif.
denied, 220 N.J. 41 (2014). However, "[w]hen 'the issue involves
the interpretation of statutes and regulations, it is a purely
legal issue, which we consider de novo.'" Id. at 524-25 (quoting
Klawitter v. City of Trenton, 395 N.J. Super. 302, 318 (App. Div.
2007)).
"'Regulations are subject to the same rules of construction
as a statute,' and 'should be construed in accordance with the
plain meaning of [their] language' 'and in a manner that makes
sense when read in the context of the entire regulation.'" Seigel
v. N.J. Dep't of Envtl. Prot., 395 N.J. Super. 604, 618 (App.
Div.) (quoting Medford Convalescent & Nursing Ctr. v. Div. of Med.
Assistance & Health Servs., 218 N.J. Super. 1, 5 (App. Div.),
certif. denied, 102 N.J. 385 (1985)), certif. denied, 193 N.J. 277
(2007). "In the context of statutory interpretation, we are
advised that: 'Statutes that deal with the same matter or subject
should be read in pari materia and construed together as a unitary
and harmonious whole.'" Scott v. N.J. Dep't of Corr., 416 N.J.
18 A-3428-14T3
Super. 512, 518 (App. Div. 2010) (quoting Marino v. Marino, 200
N.J. 315, 330 (2009)). If there is an inconsistency between two
or more regulations, a more specific provision usually controls
over a more general one. Id. at 519.
In this case, N.J.A.C. 7:45-2.3(c)(2) is a regulation of
general application setting forth the types of potential review
for development proposals within Zone B. However, N.J.A.C.
7:45-9.1 expressly requires consideration of stream corridor
impact only "if the project includes a portion of a stream
corridor." This specific regulation controls the more general
one, and the Commission was not required to consider impacts on
the stream corridor of the unnamed tributary because the
Institute's project did not include a portion of the stream
corridor.
Affirmed.
19 A-3428-14T3