FRESHWATER WETLANDS PROTECTION ACT RULES

N.J.A.C. 7:7A

SUBCHAPTER 17 Reconsideration by Department of its action or inaction concerning a permit

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7:7A-17.1 Reconsideration by Department of its action or inaction concerning a permit
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N.J.A.C 7:7A-17.1 Reconsideration by Department of its action or inaction concerning a permit

(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. Either of the following requirements is 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; or

ii. A takings complaint has been filed with the court or the court has determined that the issuance, modification or denial of a individual freshwater wetlands permit would constitute a taking of property, and the Department initiates the reconsideration.

(c) In 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-12.2;

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;

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-2.5, 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-12.2, 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 the result of a reconsideration 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 (a) above shall include the following items:

1. A completed LURP application form, indicating a request for reconsideration and the type of permit being requested;

2. Unconditional written consent from the owner of the site, as defined at N.J.A.C. 7:7A-1.4, for Department representatives to enter the site to conduct site inspections;

3. Documentation that public notice has been given pursuant to the requirements at N.J.A.C. 7:7A-10.8(c), (d), (e) and (g). 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, as defined at N.J.A.C. 7:7A-1.4, 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, nature, and 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 or easement 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 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 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;

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 will 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. A development plan 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-12.2, 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-15, 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; 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, 1iii, 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-10.8 (c), (d), and (e)1 through 4 and 6; 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 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 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 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.

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