The DEP Must Adequately Explain its Administrative Decisions to Avoid Remand

December 7, 2021 | Comments Off on The DEP Must Adequately Explain its Administrative Decisions to Avoid Remand
Posted by Afiyfa H. Ellington

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.

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