NJ Supreme Court Hears Challenge to Massive Berwind Development in Hopewell Township

Do Environmental Concerns Involve a “Public Interest” – or Are They Merely Private Disputes Under Land Use Law?

[Update 2: 11/7/10 – listen and watch the Supreme Court hearing (click here) and read real estate industry legal perspective (click here).

Clarification: Under the NJ Municipal Land Use Law (MLUL), there is a  45 day deadline to file a legal challenge after a Planning Board issues an approval. Under NJ Supreme Court rules and prior case law, Court’s can extend this 45 day period if it is in the public interest or in the interests of  justice.

This case is about a legal challenge that was filed 6 days late and therefore dismissed. However, the lateness was due to incorrect information provided by the Hopewell Planning Board officer itself. The citizen’s group reasonably relied on this incorrect information.

But this may have not been an honest mistake. The lawyer for Hopewell Citizens alleged that the Hopewell Planning Board may have engaged in an illegal quid pro quo by knowingly engaging in an improper extraction (i.e. making construction of the Mt Rose By-Pass a condition or approval, despite knowing that the Bypass was not feasible and could not be built). That claim, if true, suggests that there may have been an improper motive and bad faith by the Planning Board officer’s provision of incorrect information that misinformed the citizen’s group – i.e. an affirmative misrepresentation.

In addition, my summary below suggests, at best, reckless decision-making that appeared to be driven by an attempt to issue preliminary site plan pproval to avoid the applicability of new DEP stream buffer rules. That is cited in oral arguments as ” a witness was denied testimony” and described as “the elephant in the room”. ]

The NJ Supreme Court today heard oral arguments in the Hopewell Valley Citizens Group’s challenge to a May 2008 preliminary site plan approval.

HV Citizens challenged the Hopewell Township Planning Board approval of the Berwind Property Group’s proposed 800,000 square foot commercial development on 320 acres in a rural and environmentally sensitive area off of Carter Road in Hopewell, NJ.

Back on May 29, 2008, we attempted to testify about that project, particularly to advise the Hopewell Planning Board about the impacts of DEP’s new Category One (C1) 300 foot stream buffers and Flood Hazard Act stream encroachment permit “riparian corridor” requirements (see this for our May 29, 2008 testimony).

Basically, we argued that the prior May 20, 2008 DEP adoption of new regulations would impact the Berwind project, particularly regarding the effective date and applicability of the new DEP rules with respect to local land use and preliminary site plan approvals granted by the Planning Board.

Specifically, DEP rules grandfather (i.e. exempt) development projects that have received certain local land use approvals and DEP permits (see discussion starting on page 105 – this is DEP’s response to Berwind’s comment #93).

We tried to warn the Planning Board that the Berwind project would be exempted from DEP rules by the Hopewell Planning Board’s preliminary site plan approval, if that approval were issued prior to the effective date of the new DEP rules.

We warned that Berwind also could qualify for grandfathering from DEP stream buffer and other rules because they previously had submitted a stream encroachment permit application.

Additionally we warned that the site disturbance allowed under the Board’s local preliminary site plan approval would create a loophole in the C1 stream buffer rules, because the DEP C1 buffer rules do not apply to previously disturbed lands that are being redeveloped.

Therefore, we strongly urged the Hopewell Planning Board to delay a final decision on the Berwind application until the new DEP rules could be reviewed by professional staff and applied to the project.

The new rules had been signed by the DEP Commissioner on May 20, just 9 days before the Planning Board’s hearing. The new rules were yet even made public and were scheduled to be published in the upcoming June 16, 2008 edition of the NJ Register.

To support our argument, we relied on the written statements of Berwind’s own lawyers, who wrote DEP to oppose the new rules. Berwind’s lawyers claimed that the DEP C1 designation rules would have a “devastating affect” (sic) of their ability to develop the property.

My testimony stated:

On August 20, 2007, Pepper Hamilton, LLP, attorneys for the applicant BPG, submitted comments on the DEP May 21, 2007 proposed Category One amendments (see Exhibit 2). BPG counsel stated that the impact of the proposed regulation to designate portions of the Stony Brook as a C1 water:

“If adopted, the [C1] rule would have a devastating affect on BPG’s ability to redevelop its property because of the imposition of a 300 foot special water resource protection area (and riparian zone if the proposed amendments to the Flood Hazard Control Act rules are enacted) (collectively, “buffers”) adjacent to the Stony Brook and its tributaries.” Such buffers will prevent BPG from implementing the 1999 [Hopewell] Township approved plan, possibly including BPG’s ability to discharge from its wastewater treatment plant.

However, shockingly, the Planning Board attorney opposed the introduction or consideration of my testimony. The Board later ruled that my testimony was not admissable.

The Board proceeded – recklessly – to expedite review and approve the project.

The Board did so in complete and willing ignorance, without knowing – or even considering – whether and how the new DEP rules would impact the project or whether the Berwind lawyers were correct in claiming that the new DEP rules would have a “devastating affect” on their ability to develop the site (by strictly limiting disturbance in the 300 foot wide buffers on 2 streams that flow through the site, and making the NJPDES wastewater discharge permit vulnerable. Under DEP rules, C1 streams are protected by more stringent water quality standards, including an antidegradation policy that requires that discharges have “no measurable impact on existing water quality” and more rigorous”existing use” protections that were first enforced by DEP in revoking a NJPDES permit issued at the Milligan Farms development in Clinton Township).

But let’s get back to the HV Citizens lawsuit and the legal issues at play.

The HV Citizens lawsuit was dismissed by the trial and appeals courts on a procedural technicality: the citizen group’s legal complaint was filed 6 days AFTER the 45 day deadline established under the Municipal land Use Law (MLUL).

But the reason why the complaint was filed 6 days late was due to an error by the Hopewell Township planning board clerk, who failed to provide the correct information regarding the start of the 45 day clock. The Citizen’s group relied in good faith on that incorrect information and as a result was 6 days late in filing their lawsuit.

Not surprisingly, Berwind’s lawyer urged the Court to uphold the Appellate Court’s decision and strictly enforce the “bright line” 45 day deadline. They argued that predictability and finality are required, and implied that the Court’s extension would cause chaos across the state as developers in 566 towns were forced to rely on he said/she said phone calls to establish legal deadlines. More than one justice found this argument unpersuasive.

The attorney for the Hopewell Planning Board, who took the same position as Berwind, surprisingly went further to argue that citizens should not rely on the advice of government officials! That argument was mocked by one justice.

But far broader interests are involved in this case.

The MLUL and NJ Supreme Court rules specifically allow extensions to be granted to the 45 day limit, based upon promoting the public interest, balancing the equities, and avoiding manifest injustice.

During oral argument, justices noted that the Supreme Court had modified its rules to allow extensions of the 45 day statutory MLUL deadline expressly to protect broader public interests and promote justice. One Justice noted that this rule cahnge was made in response to issues raised in a prior case that came before the court. This Justice then noted that the Legislature had not acted to reverse or restrict the Court’s rules that allowed extensions of the Legislature’s statutory 45 day period and cnsdieration of broader factors than those explicity in the MLUL. From a legal perspective, this means that the legislature effectively supports the courts more expansive and flexible view of reasons to extend the 45 day deadline.

So the argument boiled down to whether an innocent mistake by plaintiff HV Citizens, based on local government error and resulting in only 6 days, should result in the entire case being thrown out of court.

Was that a “manifest injustice”?

The trial and appeals court decisions basically found that sustained public opposition by hundreds of Hopewell Valley residents, along with significant substantive open space, water resource, wildlife habitat, traffic and related land use impact issues were merely private disputes that did NOT involve the broader public interest (for the Appellate Division January 2009 decision upholding the trail court see this). The Appellate Division found:

We affirm substantially for the reasons expressed by Judge Feinberg in her January 23, 2009 oral opinion. We add the following remarks.

We acknowledge that there may be circumstances that warrant an enlargement of time other than the traditional categories of important and novel constitutional questions, informal or ex parte determinations of legal questions by administrative officials, and important public rather than private interests. Cohen, supra, 368 N.J. Super. at 345. Those circumstances may include affirmative attempts to mislead or confuse objectors about the date of publication, id. at 347, or challenges to the validity of an ordinance not adopted in conformity with applicable statutory requirements, Reilly v. Brice, 109 N.J. 555, 560-61 (1988). Here, however, there is no suggestion that Berwind sought to mislead or confuse the objectors about the date of publication or that the zoning ordinance is infirm. Rather, Berwind simply proceeded as authorized in the rules and regulations adopted by defendant Planning Board.

We are also not persuaded that the issues presented by plaintiff concern issues of great public importance rather than the normal concerns expressed by objectors to local development. Here, the Planning Board granted preliminary site plan approval for a permitted use. No variances were required and none were granted. In addition, the property is not undeveloped ground. Rather, three existing buildings totaling more than 300,000 square feet of space, including a dormitory and a helistop, are on the site. Conditions imposed by the Planning Board require demolition of the dormitory and elimination of the helistop.

My prediction is that the Supreme Court will reverse the Appellate Division and find in favor of the Plaintiff HV Citizens, particulalry on the “public interests” at play, as distinguised from garden variety private interests.

Thankfully, more than one Justice, citing planning board hearings attended by over 100 people and substantive stream buffer and water resource issues, had big problems with Berwind’s argument that HV Citizens had only 7 members and thus the issues in dispute were private or of “limited public interest”.

I suspect that they will balance the equities in favor of plaintiffs and find that the interests of justice require that outcome.

Ironically, I won a very similar procedural argument before the US EPA Environmental Appeals Board in contesting the proposed Mercer County incinerator’s air pollution control permit. In that case, I also relied in good faith on the wrong information provided by a government clerk. The clerk’s error resulted in my filing missing a deadline by 3 days. In holding in my favor, the US EPA Appeals Board found:

“As previously stated, MCIA has asserted that the appeal was not filed in a timely manner. Although the petition for review was not received by the Board within 30 days of the date the permit was issued as required by 40 C.F.R. § 124.19(a), we nevertheless consider it to have been timely filed. Although the Board ordinarily requires strict compliance with filing deadlines, we make an exception in the present case because Bill Wolfe, then the Policy Research Director for the New Jersey Environmental Federation, one of the petitioners in this matter, has submitted an affidavit stating he was given and relied upon incorrect information by the Clerk of the Board. In particular, although the petition for review was due on September 30, 1996, Wolfe states under oath that during a telephone conversation with the Clerk of the Board, he was told that an overnight package sent on September 30, 1996, would constitute timely filing. The Clerk of the Board has confirmed the substance of this conversation. The petition was not received by the Board until October 3, 1996. Although Wolfe did not disclose to the Clerk of the Board the method by which the final permit decision was served, the Clerk of the Board apparently believed that the decision had been served on petitioners by mail, in which case 3 days are added to the prescribed time period for filing a petition for review. 40 C.F.R. § 124.20(d). However, because the final permit was served on petitioners on August 30, 1996, by hand delivery, the petitioners were not entitled to this additional time. Under these very narrow and unusual circumstances, we consider the petition to have been timely filed. See American Farm Lines v. Black Ball Freight Services, 397 U.S. 532, 539 (1970) (Agency may relax procedural rules if the ends of justice so require); In re Genessee Power Station, 4 E.A.D. 832, 837 n.6 (EAB 1993) (excusing Limited Partnership failure to comply with filing requirements of 40 C.F.R. § 124.19); In re BASF Corp, 2 E.A.D. 925, 926 n.3 (Admr, 1989) (where a petitioner relies on erroneous filing information from the Region, a petition for review will not normally be rejected as untimely).

[Update 1: 10/27/10 – I realize that this post is aleady way too long, but I left important info out and need to finish the story.

As I said, on May 29, 2008, the DEP Category One rule adoption documents were not yet published, so I had to file an OPRA and do a file review at DEP HQ and the Office of Administrative Law (OAL) to review and get a hold of the documents.

Subsequent to my May 29 testimony, I was able to review the fine print more closely, and realized that DEP eliminated several proposed C1 stream upgrades, including some in Hopewell that could imapct BMS and the Berwind project. On June 5, I issued this press release:

GRANDFATHER STAMPEDE IN DELAYED NEW JERSEY STREAM RULES – Statewide Clean Water Protections Honeycombed with Special Interest Exceptions

Trenton – Even as it formally unveils its controversial “Category One” waters initiative, the New Jersey Department of Environmental Protection has created a major grandfathering loophole, allowing many major development projects to circumvent the new protections, according to an analysis by Public Employees for Environmental Responsibility (PEER). As a result, construction will be allowed to pierce protective buffers around the state’s most ecological valuable rivers, lakes and streams.

“Buried in these rules are enough special interest gifts to keep the spirit of Christmas alive in Trenton for many years to come,” stated New Jersey PEER Director Bill Wolfe, a former DEP official who once headed the Category One (C1) program designed to shield water-bodies that either support critical wildlife or feed into a major drinking-water source from development-induced pollution. “Favors for developers with politically connected projects can only be found by playing hide-and-go-seek through 300 pages of regulatory underbrush.” […]

This grandfather loophole has already exempted one big project, an 800,000 square-foot corporate office park expansion known as Berwind, located on Carter Road in Hopewell (previously known as Lucent Technologies). According to August 20, 2007 comments submitted by a lawyer on behalf of Berwind Property Group (BPG) in Hopewell campus, the project would be precluded by a C1 designation: “If adopted, the [C1] rule would have a devastating affect on BPG’s ability to redevelop its property.”

On May 29, 2008, the Hopewell Township Planning Board approved the project while refusing to acknowledge that the new C1 rules, adopted just days earlier, would preclude the project.

I’ll close on a personal note: Just a few years ago (2002), I don’t think there were 10 people in the entire state of NJ who had a clue what a “Category One” water was. Yesterday, I heard a NJ Supreme Court Justice initiate a question and knowledgeably talk about Category One waters!! I’d like to think I had a big role in that.