IN THE MATTER OF THE ISSUANCE OF FLOOD HAZARD AREA INDIVIDUAL PERMIT (HARDSHIP EXCEPTION) NO. 1400-12- 0002.7 FHA 16002 (DEPARTMENT OF ENVIRONMENTAL PROTECTION)

NOT FOR PUBLICATION WITHOUT THE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-1163-16T3
IN THE MATTER OF THE ISSUANCE OF
FLOOD HAZARD AREA INDIVIDUAL PERMIT
(HARDSHIP EXCEPTION) NO. 1400-12-
0002.7 FHA 16002.
_____________________________________
Submitted May 24, 2018 – Decided June 19, 2018
Before Judges Reisner, Mayer, and Mitterhoff.
On appeal from the Division of Land Use
Regulation, Department of Environmental
Protection, Permit No. 1400-12-0002.7 FHA
16002.
Lowenstein Sandler LLP, attorneys for
appellant John J. Sumas (Richard F. Ricci,
Reynold Lambert, and Nikki Adame Winningham,
on the briefs).
Connell Foley LLP, attorneys for respondent
Hanover 3201 Realty, LLC (Kevin J. Coakley,
of counsel; Nicole B. Dory and Nicholas W.
Urciuoli, on the brief).
Gurbir S. Grewal, Attorney General, attorney
for respondent New Jersey Department of
Environmental Protection (Jason W. Rockwell,
Assistant Attorney General, of counsel;
Melissa P. Abatemarco, Deputy Attorney
General, on the brief).
PER CURIAM
Appellant John J. Sumas (Sumas), the Chief Operating Officer
of Village Supermarkets, Inc. (Village), appeals a Flood Hazard
Area (FHA) Individual Permit (Permit) and Hardship Exception
issued by respondent New Jersey Department of Environmental
Protection (NJDEP) to respondent Hanover 3201 Realty, LLC
(Hanover). The Permit allows Hanover to construct a jughandle at
the intersection of Route 10 and Ridgedale Avenue in the Township
of Hanover. We affirm.
This appeal represents the latest chapter in in a series
objections, lawsuits, and appeals filed by Village and its
employees in opposition to Hanover's construction of a shopping
center (Project) that includes a competitor supermarket. The
history of Village's efforts to stop, or at least delay, the
Project are recounted in Hanover 3201 Realty, LLC v. Village
Supermarkets, Inc., 806 F.3d 162, 167-70 (3d Cir. 2015).
We recite the facts relevant to this appeal. Hanover owns
property near Route 10, at the intersection of Sylvan Way and
Ridgedale Avenue, in Hanover Township (Property) slated for the
development of a shopping center with a Wegmans supermarket.
Village owns a ShopRite supermarket located approximately two
miles from the Property. The property owner prior to Hanover
entered into a developer's agreement with the New Jersey Department
of Transportation (NJDOT) to construct roadway and traffic
2 A-1163-16T3
improvements as part of the development of the Property. The
Hanover Township Planning Board (Board) also considered road
improvements associated with the development of a shopping center
on the Property. In approving Hanover's Project, the Board
required Hanover to obtain NJDOT approval for all proposed road
improvements.
In 2013, Hanover applied to the NJDOT for permits associated
with the Project's planned road improvements. The NJDOT determined
that the construction of a jughandle at the intersection, which
would provide ingress and egress to the shopping center, would be
safer and more efficient than Hanover's proposed left turn lanes.
The NJDOT issued a permit for a jughandle to access the Project.
The NJDOT had prior plans to construct a jughandle at that
intersection, and thus built culverts and retained land adjacent
to the intersection specifically for the future construction of a
jughandle.
Village's objections and subsequent appeals challenging the
Board's approval of Hanover's Project, the NJDOT's issuance of
permits for a jughandle, and the NJDEP's issuance of wetlands
permits to construct the shopping center were rejected by this
court. We found Village's various legal challenges to Hanover's
3 A-1163-16T3
Project to be uniformly without merit and motivated by a desire
to protect its own financial interest.1
Having failed to stop the Project by way of its earlier legal
actions, Village, through Sumas, objected to the NJDEP's issuance
of a FHA Permit for the construction of the jughandle. Paulus,
Sokolowski and Sartor, LLC (PS&S), an engineering and
environmental consulting firm retained by Hanover, filed an
application with the NJDEP for a Permit to construct the jughandle.
The Permit application was nearly 800-pages long and contained
twenty attachments, including site photographs, maps, development
plans, calculations, compliance statements, a Flood Hazard Area
engineering report, an environmental report, and a stormwater
engineering report.
The NJDEP submitted a review letter indicating Hanover's
Permit application was incomplete and/or deficient. The NJDEP
requested Hanover supplement the application with additional
documentation, as well as amplification and recalculation of
specific aspects of the PS&S engineering reports.
1
Based on Village's opposition to nearly every aspect of the
Project, and its filing of multiple lawsuits to stop Hanover's
development of a shopping center with a competitor supermarket,
Hanover filed an antitrust lawsuit against Village in federal
court. See Hanover 3201 Realty, LLC v. Vill. Supermarkets, Inc.,
806 F.3d 162 (3d Cir. 2015). The Third Circuit allowed Hanover
to proceed with its lawsuit based on Village's "policy of filing
anticompetitive sham petitions." Id. at 181.
4 A-1163-16T3
Princeton Hydro, LLC (PH), an ecological and engineering
consulting firm hired by Sumas, submitted a letter to the NJDEP
challenging various aspects of PS&S's engineering reports and
data. PH claimed a water flow study relied upon by PS&S was
outdated, rendering its water flow calculations for the Permit
flawed. PH believed the flawed calculations were significant
given the existing flooding problems at the Property. Rather than
submit its own calculations, analysis, or evidence, PH argued
water flows would be changed by the proposed road construction and
Hanover’s plan would not adequately compensate for flood storage
displacement.
PS&S responded to the NJDEP’s review letter and PH's claims.
PS&S explained that the submitted study accounted for the existing
water flow and the proposed water flow based on the planned
jughandle and roadway improvements. PS&S addressed every issue
in the letters from NJDEP and PH.
Over the course of several weeks, the two engineering firms
exchanged letters regarding Hanover’s Permit application. Rather
than continue an endless letter writing campaign in support of the
Permit, Hanover withdrew its application. Hanover elected to
submit a revised Permit application to NJDEP with a hardship waiver
request.
5 A-1163-16T3
On May 27, 2016, Hanover submitted the revised application
for an FHA Permit with a hardship exception. The revised
application and hardship request engendered more letter writing
among Hanover, Sumas, and the NJDEP. Sumas continued to object
to Hanover's revised Permit application. At the NJDEP's request,
Hanover's expert responded to all objections raised by Sumas and
his expert. PS&S also provided additional engineering studies,
plans, and detailed water flow calculations in response to the
continued objections raised by Sumas.
On September 23, 2016, the NJDEP issued the Permit and
hardship exception to Hanover. In issuing the Permit, the NJDEP
prepared a report with detailed findings on the flood impact of
the jughandle, as well as Hanover's satisfaction of the regulatory
requirements for construction in a floodway. In addition, the
NJDEP analyzed Hanover's compliance with the requirements for a
hardship exception and set forth its findings in support of the
exception.
Sumas appeals from the NJDEP's issuance of the Permit to
Hanover. Sumas argues Hanover failed to meet the requirements for
a hardship exception. Sumas also contends the NJDEP failed to
6 A-1163-16T3
make the required fact findings in support of the Permit.2
"The scope of appellate review of a final agency decision is
limited." In re Carter, 191 N.J. 474, 482 (2007). We do not
overturn a final agency decision unless "it was arbitrary,
capricious or unreasonable, or . . . it lacked fair support in the
evidence," ibid. (quoting Campbell v. Dep't of Civil Serv., 39
N.J. 556, 562 (1963)), or "the agency did not follow the law." In
re Virtua-West Jersey Hosp. Voorhees for a Certificate of Need,
194 N.J. 413, 422 (2008). The burden is on the appellant to prove
the agency's error by a "clear showing." Twp. of Fairfield v.
State, Dep't of Transp., 440 N.J. Super. 310, 318 (App. Div. 2015)
(quoting Circus Liquors, Inc. v. Governing Body of Middletown
Twp., 199 N.J. 1, 9 (2009)).
"Where an agency's expertise is a factor, a court defers to
that expertise, particularly in cases involving technical matters
within the agency's special competence." In re Adoption of
Amendments to Ne., Upper Rariten, Sussex Cty., 435 N.J. Super.
571, 583 (App. Div. 2014). "This deference is even stronger when
the agency, like DEP in regard to [the disputed permit], 'has been
2
We note Hanover's merits brief questioned Sumas' standing to
challenge the NJDEP's issuance of the Permit. However, the
standing issue was not raised by Hanover as part of the NJDEP's
issuance of the Permit. Thus, we decline to address the standing
issue. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234-35
(1973).
7 A-1163-16T3
delegated discretion to determine the specialized and technical
procedures for its tasks.'" In re Freshwater Wetlands Gen.
Permits, 372 N.J. Super. 578, 593 (App. Div. 2004) (quoting Newark
v. Natural Res. Council, Dep't of Envtl. Prot., 82 N.J. 530, 540
(1980)). "[W]e do not reverse an agency's determination
'because of doubt as to its wisdom or because the record may
support more than one result.'" Ibid. (quoting In re N.J.
Pinelands Comm'n Resolution, 356 N.J. Super. 363, 372 (App. Div.
2003)). "We give substantial deference to the interpretation of
the agency charged with enforcing an act." Merin v. Maglaki, 126
N.J. 430, 436-37 (1992). "The agency's interpretation will prevail
provided it is not plainly unreasonable." Id. at 437.
Sumas argues the NJDEP's issuance of the Permit was improper
because Hanover failed to meet the regulatory requirements for a
hardship exception. Because the NJDEP accepted the calculations
and data presented by Hanover's experts, and rejected the arguments
of his experts, Sumas argues the NJDEP's conclusions are arbitrary,
unreasonable, and unsupported by the record.
We defer to an agency's fact-finding determinations,
particularly where there is an extensive record relating to complex
technical material within an agency's expertise. See Freshwater
Wetlands, 372 N.J. Super. at 593. Hanover submitted almost 1000
pages of studies, analyses, calculations, plans, drawings, photos,
8 A-1163-16T3
and reports to the NJDEP in support of the Permit application and
hardship exception. The NJDEP scrutinized each objection raised
by Sumas and required Hanover to submit new or amended reports
with specific calculations and analyses. The NJDEP carefully
reviewed all of the material, including the material presented by
Sumas' experts, prior to issuing the Permit.
Having reviewed the record, we find that the NJDEP's decision
to issue the Permit complied with the requirements of the Flood
Hazard Area Control Act, N.J.S.A. 58:16A-50 to -66, including the
factors for a hardship exception in accordance with N.J.S.A.
58:16A-55(b), as well as the Flood Hazard Area Control Act Rules,
N.J.A.C. 7:13-1 to -24. The NJDEP found
there is no feasible and prudent alternative
to the proposed project, including not
pursuing the project, which would avoid or
substantially reduce the anticipated adverse
effects of the project, and . . . granting the
hardship exception would not compromise the
reasonable requirements of public health,
safety and welfare, or the environment.
The NJDEP explained that "not constructing the proposed
jughandle would unnecessarily endanger the travelling public,
while [Hanover] has demonstrated that constructing the jughandle
would provide a public benefit to existing traffic and would not
exacerbate flooding or adversely impact the environment." The
NJDEP noted the NJDOT's previous approval of the jughandle as a
9 A-1163-16T3
superior alternative to left-turn lanes or leaving the
intersection unimproved. The NJDEP considered that the present
road configuration causes motorist confusion and increased
traffic, and that the jughandle would ease the present traffic
conditions, alleviate existing flooding problems, and improve
access to area businesses. Thus, we find the NJDEP's decision to
issue the Permit was not arbitrary or capricious, has adequate
support in the record, and is sufficiently explained.
We next address Sumas' argument that the NJDEP failed to make
sufficient findings of fact and therefore the Permit must be
invalidated. "Fact-finding is a basic requirement imposed on
agencies that act in a quasi-judicial capacity." In re Issuance
of Permit by Dep't of Envtl. Prot., 120 N.J. 164, 172 (1990). "An
agency must engage in fact-finding to the extent required by
statute or regulation . . . ." Id. at 173. "When an agency's
decision is not accompanied by the necessary findings of fact, the
usual remedy is to remand the matter to the agency to correct the
deficiency." Ibid.The NJDEP issued a ten-page engineering report, dated May 27,
2016, and a hardship exception memorandum stating its factual
findings and correlating them to the relevant statutory
requirements and governing regulations in support of the Permit.
The NJDEP need not address every argument raised during the
10 A-1163-16T3
application process. The agency is required to provide a
sufficient record to inform the interested parties of the basis
for its decision and "facilitate[] appellate review." Freshwater
Wetlands, 372 N.J. Super. at 594.
Having reviewed the record, we find the NJDEP engaged in
sufficient fact-finding based upon the entirety of the record,
after a lengthy and detailed review process.
Affirmed.
11 A-1163-16T3