January 17, 2022

Volume XII, Number 17

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The DEP Must Adequately Explain its Administrative Decisions to Avoid Remand

In In re Flood Hazard Area Verification (Riparian Zone Only) File No. 2105-04-0002.1FHA1870001 et al, Superior Court of New Jersey, the Skylands Preservation Alliance (SPA) appealed from the State of New Jersey Department of Environmental Protection (DEP)’s issuance of a Riparian Zone Only Verification (RZOV) for a unnamed tributary stream of the Musconetcong River to the owners of a 112 acre parcel of property wherein they sought to construct a commercial warehouse. The owners verified that there was no flood hazard under the Flood Hazard Area Control Act, N.J.S.A. 58:16A-50 to -103.

DEP initially concluded that a flood hazard area verification was required to determine the stream’s flood hazard area elevation. However, shortly thereafter, DEP determined that a flood hazard area permit was not required for development due to the vertical elevation change between the proposed grading of the grounds of the proposed structure and the stream. DEP issued the RZOV.

While the Appellate Division affirmed the DEP’s determination that SPA lacked standing as a third-party to challenge the RZOV, the Appellate Division determined that DEP’s decision to about face on the necessity of a flood hazard area verification without a detailed explanation for its administrative decision or offer an opportunity for public comment was arbitrary, capricious and unreasonable. The Appellate Division remanded for further proceedings before the DEP and held that the DEP’s decision following the proceedings is also appealable.

© 2022 Giordano, Halleran & Ciesla, P.C. All Rights Reserved National Law Review, Volume XI, Number 342
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About this Author

Michael J. Gross, Giordano Law Firm, Environmental Attorney
Shareholder/Managing Partner

Mike, chair of the Environmental Law Practice Area, handles all aspects of New Jersey and federal environmental law, including permitting and litigation, CAFRA, sewage disposal and water supply, wetlands, riparian (tidelands) law, solid waste, flood hazard areas, siting of energy and other industrial facilities, site remediation, Pinelands, Highlands, cultural resources, stormwater, wastewater planning, water and air pollution. He also appears before planning and zoning boards and has handled complex construction litigation matters.

Mike is...

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Marc D. Policastro Attorney GHC Law
Shareholder

Marc, Chair of the Environmental Department, is a transactional, business attorney, who focuses his practice in development, redevelopment, environmental compliance cases, corporate transactional matters, land use, zoning and business counseling. Admitted to practice in New Jersey and New York, he has represented numerous national developers, manufacturers, cogeneration facilities and utilities, automobile dealerships, lenders, borrowers and municipal boards in myriad land use contexts, including commercial and residential development and due diligence matters. He also focuses on complex...

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Paul H. Schneider, Giordano Law Firm, Litigation Attorney
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Paul, Chair of the Environmental & Land Use Litigation Practice Area, focuses his practice in environmental, redevelopment, land use, regulatory, real estate and affordable housing law, and litigation. He also handles a wide variety of redevelopment matters as well as corporate and commercial litigation. In addition to handling major litigation before both the state and federal courts and the Office of Administrative Law, he has extensive experience before the New Jersey Supreme Court and the Appellate Division.

Paul represents real estate...

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Steven M. Dalton, Giordano Law Firm, Attorney, Environmental - Land Use, Environmental - Site Remediation, Land Use & Development Law ,Cannabis Law, Real Estate, Renewable Energy, Environmental Law, Land Use Law, Litigation
Shareholder

Steve's primary practice is in Environmental Law. He is able to utilize his background in environmental sciences to anticipate, understand and address the issues that his clients confront. Steve assists business and individual clients in state and federal environmental permitting, regulatory compliance, solid and hazardous waste remediation and redevelopment of contaminated sites, underground storage tank compliance, water and sewer rights and approvals, Tideland rights and approvals, and municipal land use matters.  Steve also assists clients with environmental aspects of real estate...

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David J. Miller Shareholder environmental regulatory, real estate and corporate transactional matters attorney
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Dave is an environmental attorney with experience in the private and public sectors who focuses his practice on environmental regulatory, real estate and corporate transactional matters. He counsels clients on site remediation, the Industrial Site Recovery Act (ISRA), Site Remediation Reform Act (SRRA), Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), due diligence, participation in potentially responsible party groups and interaction with the Environmental Protection Agency on Superfund matters.  Dave also advises on the procurement of environmental permits...

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