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

 

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                                    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

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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




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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.

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     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.



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      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




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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).

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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,

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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


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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

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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.




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