Posts Tagged ‘regulations’

Regulations Are Not a Taking Under the Constitution!

Written by Mike Pisauro on April 3rd, 2013 in Clean Water, Highlands, land use, Regulation | No Comments »

Recently a member of the Highlands Council was quoted as saying that the Highlands Water Protection and Planning Act took people’s property without compensation in violation of the Fifth Amendment of the U.S. Constitution and Article 1 Paragraph 20 of the New Jersey Constitution.  According to a post in the EnviroPolitics Blog, Richard Vohden referred “to the devaluing of property values for those unable to subdivide or sell due to the law, Vohden said, “If that’s not a ‘taking,’ I don’t know what a taking is.””  The Council’s newest legal counsel has also repeated this sentiment.  These are very unfortunate statements and just wrong on the law.

f the Highlands Act has devalued the property why is it not a taking?  The Highlands Act, especially in the Preservation Area, required much more acreage to build on.  In essence it created minimum lots sizes, which are large.  It is this large lot sizes that some believe have taken their land.  This is what Vohden is referring.

To understand why Vohden and others making the same claim are wrong you must understand takings law.  The basis for takings laws can be found in the U.S and NJ constitutions.  The Fifth Amendment of U.S. Constitution provides, in part: “nor shall private property be taken for public use, without compensation.”  Article 1, Paragraph 20 of the New Jersey Constitution provides: “Private Property shall not be taken for public use without just compensation.”  New Jersey Courts have determined that the New Jersey Constitution and the U.S. Constitution protect this right equally.

The New Jersey Supreme Court and the Federal Courts have ruled that the 2004 Highlands Water Protection Act is not a takings.  But Vohden’s statement is repeated often enough by people affected by the Act.  I suspect that as we rebuild from Sandy, if we are to do it right, people along the coast of New Jersey may be saying the same thing.

When does a law or regulation take private property?  I would start out by noting that for many years legal scholars and courts did not believe that the Constitution protected against “taking” of property through regulation.  It was originally thought that the only taking the constitution protected against was a physical taking by the government.  That thinking has evolved and probably will continue to evolve.

Currently, the U.S. Supreme Court has held that regulations that impact property are not a taking just because the regulation may have an impact on the value of the property.  The Court has said in numerous cases, “Government hardly could go on if to some extent values incident to proper could not be diminished without paying for every such change in the general law.”  Everyone’s ownership of land is subject to the reasonable exercise of state’s authority.  At one point the Court would look to see if the regulation addressed a noxious and harmful uses of the property.  A property owner has never been able to use their property in a way to could harm another’s property.  If the regulation addressed a noxious or harmful use of the property than the courts would not find a taking even if the property had no use after the regulation.

When a regulation takes all value from a person, the Court has indicated that is a regulation that has the same effect as a physical taking and will require compensation under the Fifth Amendment with one exception.  The Court has said that a state could avoid payment when the regulation controls an aspect of ownership that was not part and never was part of the property’s bundle of rights.  A property owner could not flood his neighbor’s property so a regulations or a statute that prohibited such a use, even if that was the only use of the property would not be a taking.

When a regulation does not take all economic value from the property as a whole the court will take a look at whether the regulation substantially advances a legitimate state interest. If the legislation substantially advances a legitimate state interest than the Court is unlikely to find a taking.  The Supreme Court in Lucas v. South Carolina Coastal Commission set out some items to look at in these situations:

  • Degree of harm to public lands and resources or adjacent  private property
  • Social value of the claimants activities
  • Suitability of the activity to the area
  • Relative ease with which the alleged harm can be avoided through measures taken by the claimant or the government
  • Whether the use has be historically engaged in by surrounding properties.

In light of the criteria above, the Highlands Act clearly does not violate the criteria.  The Highlands Act was enacted to counter the damage that unrestrained growth was having on the State’s water supply.  This unrestrained growth was impacting not only the quality of water but the quantity as well.  There were no realistic alternatives to protect the water quality and quantity other than to protect the lands that recharged the waters.  I would also argue that historically development in the Highlands area was very spread out and low intensity.  It was only in recent years that development concentrated in the area.  To sort of wrap this up, the Highland Regional Master Plan requires land within the preservation area and not part of a sewer service area to have large lots.  Is that a taking?  Under current constitutional law, the answer is no.  Attacks against the Highlands Act have been unsuccessful in State as well as Federal Courts.

The lessons we have learned in the Pinelands and the Highlands may help guide us as we hopefully address our coastal region.  Hopefully the State will put into place regulations to protect the coastal region.  If that occurs I would suspect that we may hear the same false claims as in the Highlands.  Luckily no matter how many times it is said, mere regulation of property is not a taking.

DEP TO START ACCEPTING WAIVER RULE APPLICATIONS ON AUGUST 1, 2012

Written by Mike Pisauro on July 31st, 2012 in Regulation | No Comments »

Beginning August 1, 2012 the gates at DEP will be open to receive applications under the new “Waiver rule.” Under this regulation, DEP has authorized itself to waive an applicant’s requirement to comply with nearly all of DEP’s rules if the applicant can show that it meets one of four very broad and undefined categories.  Although the rule was adopted on April 2, 2012, DEP delayed its implementation so that it could develop:

an internal process that will ensure consistency and transparency in the handling of all applications.  This includes standardized submissions forms, . . .  and on-line reports that will allow the public to know when applications are received and to access the DEP’s decisions.

Snapshot of DEP's waiver rule page

However, we are just hours away from the start date and a review of their website today showed no indication from DEP that any of its processes are in place. There is no online form to complete.  There are no online reports for the public to view the status of waiver requests.

DEP was also supposed to prepare internal processes to prioritize waivers and to insure that all waivers are handled in a consistent and transparent manner.  Again there is nothing available to the public that indicates that DEP has done any of this.  One has to wonder just how transparent a hidden process really is.

 

Because DEP has not indicated that it is ready to handle these applications and because of the lawsuit filed by 28 environmental and labor organizations, those groups asked DEP to stay the implementation of the rule because none of the procedures had been put in place.  The Appellants also urged the DEP not to create the procedures internally and without the ability to comment on them; but to propose those procedures through the rule making process.  The Appellants further argued that implementation should be delayed until the Appellate Division has had a chance to rule on the lawsuit.    In response to the Appellants request for a stay; DEP denied it.

So, come tomorrow, DEP will be in the business of waiving compliance with regulatory requirements.  It will be interesting to see what form those inevitable applications will take and how DEP will process processing the applications and make decisions  - as they have yet to make public what standards or processes they plan to use.  The only thing that we can be certain of is that any waivers that do come in will most certainly be appealed upon DEP’s issuance.

Past Posts on the Waiver Rule:

Assembly Tells DEP to Waive Goodbye to Waiver Rule

Waiver Rule: One Rule to Rule Them All!

Senate To Vote on Permit Extension Act and Waiver Rule: One Bad and One Good.

Written by Mike Pisauro on May 31st, 2012 in land use, legislation, Regulation | 1 Comment »

This afternoon the New Jersey Senate is voting on two very important bills:  SCR59, The Waiver Rule and S703, Permit Extension Act of 2008. These two bills are very important as SCR59 will be an important step in stopping the DEP from undermining environmental protection and S743 will help undermine environmental protections including the Highland Planning Area and the Pinelands Preservation Area.  That both bills are up at the same time is somewhat troubling.  Is the senate looking to do one good thing so that they can vote in favor of a bad thing?  While the legislative process is always one of compromise, there should not be any compromise of basic environmental protection.

I have written about the DEP’s Waiver Rule and why it is bad.  Take a look at Assembly Tells DEP to Waive Goodbye to Waiver Rule, Waiver Rule: One Rule to Rule Them All! for more information on that topic.

Why is Permit Extension Act so bad?    Hasn’t there already been several Permit Extension Acts?  Yes, and I have written about the Permit Extension of 2008 when it was originally introduced.  If we already have it, then why is S743 bad?  It is bad because it is more expansive than the original act.  The original Permit Extension Act was strongly opposed by environmentalist and the final product was the result of strong negotiations between all parties.  The final bill removed from the Act environmentally sensitive areas.    Under NJSA 40:55D-136.3(a), environmentally sensitive areas was defined to include: Planning Areas 4B (Rural Environmentally Sensitive), Planning Area 5 (Environmentally Sensitive) or a critical environmental site, the Highland Regions except for areas designated for growth and the pinelands area except for areas designated for growth.  In these areas the Permit Extension Act of 2008 did not extend permits.

S743 redefines environmentally sensitive areas.  Under the pending bill the definition of Environmentally Sensitive Area does not include either the Highlands Planning Areas or the Pinelands Planning Area.   The bill goes further by adding a definition of “smart growth area” by including all of the Highlands Planning Area as a growth area.  The Highlands Planning Area covers about 450,000 acres of New jersey of which about two-thirds of it is considered environmentally sensitive.  The Planning Area includes Under the Highlands Water Protection and Planning Act, the purpose of the planning area is to:

  1. Protect, restore, and enhance the quality and quantity of surface and ground waters therein;
  2. Preserve to the maximum extent possible any environmentally sensitive lands and other lands needed for recreation and conservation purposes.
  3. Protection and maintain the essential character of the Highlands environment;
  4. Preserve farmland and historic sites and other historic resources
  5. Promote the continuation and expansion of agricultural, horticultural, recreational and cultural uses and opportunities;
  6. Preserve outdoor recreation opportunities, including hunting and fishing, on publicly owned land.
  7. Promote conservation of water resources
  8. Promote brownfield remediation and redevelopment
  9. Encourage, consistent with the State Development and Redevelopment Plan and smart growth strategies and principles appropriate patters of compatible residential, commercial and industrial development, redevelopment , and economic growth, in or adjacent to areas already utilized for such purposes, and discourage piecemeal, scattered, and inappropriate development, in order to accommodate local and regional growth and economic development in an orderly way while protecting the Highland environment from individual and cumulative adverse impacts.

As can be seen from the above list, the main purpose of the planning area was to preserve the area while allowing limited and controlled development. This goal was reinforced by Section 12 of the Statute that provided the regional and local master plan for the preservation area shall include:

 A preservation zone element that identifies zones within the preservation area where development shall not occur in order to protect water resources and environmentally sensitive lands . . .

S743 completely ignores this requirement of the law as it restores and extends permits that may predate the Highlands Act.  The Highlands act specifically provided at all permits would expire within three years of the enactment of the Highlands if construction, beyond site preparation, had not begun.   That means if you had a permit and did not begin meaningful construction prior to August 10, 2007 your permit expired.  Under S743 permits that expired between January 1, 2007 up to the present will be revived.  Permits that have been gone for up to 5 years will now be valid.  Many of these permits would pre-date the Highlands Act and would pre-date any regional master plan and local plan that protects the sensitive areas within the planning area.

It is difficult to rectify the strong intent to protect the Highlands Planning Area with the expanded language in S743.  If this bill passes out of the Senate it will be hard to justify that vote against the 34 Senators that voted in favor of the Highlands Act in 2004.  Hopefully S743 is not passed to in its current form and the Senate stands up for the environment and all of us today.

 

Please read these related posts:

Waiver Rule:

Assembly Tells DEP to Waive Goodbye to Waiver Rule

Waiver Rule: One Rule to Rule Them All!

 

Permit Extension Act:

Governor does not veto Permit Extension Act

Enviros seek Governor’s veto of Permit Extension Act

0 to 60- Permit Extension Act passes both houses.

A bullet train that will not stop

Permit Extension Act may not be so extended

New Jersey wants to stop time

Waiver Rule: One Rule to Rule Them All!

Written by Mike Pisauro on April 30th, 2012 in Courts, legislation, Regulation | 1 Comment »

With the adoption of the “Waiver Rule” on March 6, 2012 the Department of Environmental Protection (DEP) attempted to give itself the authority to waive the requirement of any environmental regulations.  In order to qualify for a waiver one of the following four categories must be met:

  • Conflicting rules
  • Strict compliance with the rule would be unduly burdensome
  •  net environmental benefit; or
  • A public emergency

28 environmentalist and labor organizations immediately filed a lawsuit against the DEP asserting that the administration did not have the “authority to adopt a blanket waiver rule without specific legislative authorization.  The promulgation violates separation of powers provisions of the New Jersey Constitution.  The waiver rule also fails to meet required standards for specificity.  The waiver rule fails to set up necessary process for the issuance of waivers.  The promulgation of a single waiver rule for all environmental statutes is overly broad.”

What does this all mean?  Let us take a closer look at each of these points.

First, the administration did not have the “authority to adopt a blanket waiver rule without specific legislative authorization” and ‘the promulgation violates separation of powers provisions of the New Jersey Constitution.” Put plainly, does DEP have the authority to issue one rule that can affect the implementation of hundreds of other rules?  Did the Legislature grant DEP the authority to waive statutory or regulatory requirements? “An administrative agency only has the powers that have been ‘expressly granted’ by the Legislature and such ‘incidental powers [as] are reasonably necessary or appropriate to effectuate’  those expressly granted powers.”  Borough of Avalon v. New Jersey Dept. of Environmental Protection, 403 N.J. Super 590, 607 (App. Div. 2008).

That delegation of authority can be expressed or implied.  I do not believe that even DEP believes it has the express authority to issue this waiver rule.  DEP asserts that this power arises out of the implied powers in its authorizing statute as well as various other statutes.  There is a problem with this argument.

If the power is derived from its implicit powers, those powers must be fairly necessary to the implementation of the statutory authority.  In looking at the exercise of implicit authority, the Courts have stated that where there is “reasonable doubt as to whether such power is vested in the administrative body, the power is denied.”  This is because an agency only has the power that has been granted or delegated to it.  There is no statute which provides the Department with the authority, independent of its various individual statutes, to issue a blanket waiver.   Just as important, when the exercise of an implicit power concerns a policy question of significance, that power has not been delegated by the Legislature to an agency.  The Legislature has reserved policy questions of significance to itself..  What “greater policy question” can there be than which environmental protection is inferior to other protections?

Second, “the waiver rule also fails to meet required standards for specificity.” This is evidenced by the fatal deficiencies in qualifying 3 out of the 4 categories under which an applicant is eligible to apply for a waiver. Under the “conflicting rules” category are situations where compliance with one rule is prohibited by compliance with another rule – resulting in a conflict.  Further, this conflict is not limited to environmental regulations – it extends to   other agency rules as well.  The Waiver Rule, however, does not provide any guidance as to how a conflict is to be resolved.  For example, if a DOT rule requires 30 foot wide roads but constructing a 30 foot road on a parcel of property would put a portion of that road into the wetlands, under the Waiver Rule the wetland might be sacrificed for the road.  Another conflict might arise when a project is required to have zero net fill in a wetland but, in order to comply with that requirement, the road would be subject to flooding.  Which requirement takes precedence?

Under the second category, a waiver could be issued in situations where strict compliance with the rule would be unduly burdensome.  The rule ‘defines’ unduly burdensome as either:

  1. Actual, exceptional hardship for a particular project or activity, or property; or
  2. Excessive cost in relation to an alternative measure of compliance that achieves comparable or greater benefits to public health and safety or the environment.

However, the rule does not define an “actual, exceptional hardship.” Rather, the rule continues to state that one of factors to be considered is whether “the person seeking the waiver may have directly caused or contributed to the circumstances that resulted in the rule being unduly burdensome.”  This means that even if the applicant caused the hardship they will not be prohibited from getting a waiver.  For example if an applicant subdivided its property so that one or more lots are impacted by wetlands that applicant can seek a waiver from strict compliance with the wetlands rules, because it would be an exceptional hardship to comply with those rules.  DEP may still grant that waiver even though the applicant has created its own need for a waiver.   This creates an incentive for applicants to create hardships so as to maximize their economic profits while maximizing environmental damage.

The second part of the definition of “unduly burdensome” is also a bit vague on the details. The Waiver Rule does not require that the “alternative measure of compliance”  provide protection for the resource that was originally protected by the rule for which the waiver is being sought..  How then does one judge the importance of protecting one resource over another?  Is clean water more important than a nesting site for an endangered species?  Is clean air more important than protecting the water quality of a category one river?  One can certainly envision the arguments of a developer that they want to remediate and develop a contaminated site but to do so they need to impact a river.

The third criteria requires a net environmental benefit.  This provision is not limited to a situation where an applicant thinks that it may have a better way to meet the standards than what is required by the rule.  It could also apply to situations where an applicant is proposing exceeding one standard but may subject another media to less protection.  As noted above, regarding unduly burdensome, how does DEP make the determination that one statutory scheme deserves more protection than another.

The third issue raised by the waiver rule is that “the waiver rule fails to set up necessary process for the issuance of waivers.” The Courts have required agencies to “to structure and confine their discretionary powers through safeguards, standards, principles and rules”  in order to satisfy due process and produce reasoned and principled decisions” (Crema v. N.J. Dep’t of Envtl. Prot., 94 N.J. 286, 301, 463 A.2d 910 (1983)). There are no safeguards, and no standards or principles by which to judge or evaluate a request for a waiver.  In fact, DEP is delaying implementation of the waiver rule until August 1st in order to devise these guidelines.  There is no way that anyone could look at a particular project and apply the Waiver rule to it and know before applying whether that project would get the requested waiver or not.

As pointed out above 3 of the 4 categories for a waiver are so broad and undefined as to be meaningless.

The issue raised by the rule is that “the promulgation of a single waiver rule for all environmental statutes is overly broad.”  given that many of the statutes and their implementing regulations already provide for a relaxation of the rules under certain expressed circumstances, why does the department really needs one rule to rule them all.  They do not need the rule and more importantly they do not have the authority to issue the rule.

This blog post is my own opinion and is not intended to reflect the opinion of any client or organization.

DEP cannot ignore the requirments of the law

Written by Mike Pisauro on March 28th, 2009 in Courts, land use, Ocean | No Comments »

Recently, the appellate division reminded DEP that it has to follow the law. In Dragon v. NJDEP, the NJ Appellate Division reversed the DEP’s authorization of development in the CAFRA zone without issuing a permit.

The case arose because a property owner wanted to demolish their existing home and build a new larger one next to the beach of Brigantine. The original proposed expansion would have expanded their home from 1944 to 3480 square feet and brought the house nine feet closer to the beach. The homeowner applied twice for a general permit which was denied because they did not meet the requirements of the general permit on either occasion. On both applications, one of the homeowner’s neighbors objected to the applications.

The homeowners appealed the denial and the matter was referred to DEP’s office of dispute resolution. During the dispute resolution process the DEP and the homeowners reached a compromise. This settlement was reduced to a written “Mediation & Settlement Agreement in lieu of a permit.” The neighbor objected to the settlement and challenged it. The DEP rejected the challenge and issued the homeowners a “Letter of Authorization” (LOA) allowing the reconstruction of the house, but even bigger than what the homeowners requested and without any set back from the bulkhead along the beach. This LOA specifically provided that it was instead of a coastal general permit under the Coastal Zone Management rules.

The objecting neighbors appealed the issuance of the LOA alleging that the Coastal Area Facility Act (CAFRA) and its implementing rules did not allow the DEP to settle a case by authorizing development without the applicant meeting the requirements of and receiving a permit. The DEP countered it had the authority “deviate from strict compliance with its own regulations in order to avoid ‘litigation risks’ and to prevent” a possible adverse legal ruling.

The Appellate division ruled that CAFRA did not give the DEP authority to waive the substantive requirements of the statute or it’s implementing regulations. (DEP could have the authority to wave procedural requirements.) Because CAFRA was designed to balance the completing interests of protecting, repairing and enhancing the environment with encouraging compatible land use it was important that any development be either by permit or within one of CAFRA’s exemptions. DEP could not in the spirit of settlement avoid the need to issue a permit. If the DEP wanted authority to issue settlement agreements without issuing a permit or to waive substantive requirements, it must gain that authority from the legislature. In short, DEP cannot give itself more power than what the law permitted.

Appellate Division examines Highlands regulations

Written by Mike Pisauro on July 23rd, 2008 in Clean Water, Highlands | 1 Comment »

The Appellate Division recently issued an opinion upholding part of DEP’s Highlands Act rules while sending a part of it to the Office of Administrative Law for a hearing. The Court’s opinion can be found here. In May 2005, DEP adopted interm rules implementing the Highlands Act. Final rules were adopted by DEP in December 2006. The New Jersey Farm Bureau filled an appeal of these rules challenging the sections dealing with water allocation and the septic density.

Essentially the Farm Bureau alleged that the water allocation rules, as proposed by DEP, were not authorized by the statute. DEP’s rules provided that DEP may modify an existing water allocation permit if the permittee had been using less than 80% of the allocation over the five years or if “all practical water conservation measures are not undertaken.” NJAC 7:38-3.2. Before DEP may reduce an allocation DEP must provide a permittee with a public hearing on the reduction prior to the modification of the permit. The Farm Bureau argued that the authorizing statute, NJSA 13;20-32(d) provide DEP the authority to reduce an allocation only when, “measures to the maximum extent practicable are not implemented to reduce demand.”

First the Court noted that DEP could not modify an allocation solely because the permittee was using less than 80% of the allocation. The Court then went on to uphold the DEP’s regulations because the regulations were permissive not mandatory. It noted that “DEP ‘may’ reduce an approved water allocation if the actual usage has been less than 80% of the allocation for the previous five years.” And that before tDEP could modify the permit, the permittee has to be afforded a hearing on the modification. If a permittee could show that it has reduced demand “to the maximum extent practicable” then DEP could not reduce the permittee’s allocation. Therefore, the Court reasoned there was no conflict between the authorizing statute and the implementing rule.

The Court also made short work of the Farm Bureau’s other argument that the rules conflicted with the Water Supply Management Act by noting that the Highlands act specifically permitted the regulations to conflict with the Water Supply Management Act. NJSA 13:20-32(d).

Where the Farm Bureau did score somewhat of victory was its challenge to the septic density standard. The Highlands Act directs DEP to adopt a septic system density standard, in the preservation area, that will prevent the degradation of water quality or that is necessary to restore the water quality and that is protective of ecological uses. NJSA 13:20-32(e). The DEP regulations provided that on lots containing all forests a septic system would require 88 acre lots. On non-forested lots a septic system would require 25 acre lots. N.J.A.C. 7:38-3.4(b)(1) & (2). The Farm Bureau alleged that DEP should have used average recharge rates instead of recharge rates based upon a drought. They also argued that DEP’s assumption of the number of people per household was too high and DEP’s selection of ambient nitrate levels were too low. Therefore, the Farm Bureau argued that if DEP used better numbers in their calculations that the density requirements would be much lower.

The Court found that the Farm Bureau had raised sufficient questions as to the methodology used by DEP to arrive at the standards that a hearing before the office of administrative law should be held to create a sufficient record to determine whether DEP’s methodology could be found not to be arbitrary and capricious. In essence the Court found that DEP did not create a sufficient record in its rulemaking to allow the Court to defer to the agency’s expertise. In its opinion the Court directed DEP in the OAL hearing, “that this methodology has been used by any other agency with comparable regulatory authority.”

The remand by the Court is either an opportunity for DEP to back up its methodology with facts or an opportunity for the Farm Bureau to show that DEP’s methodology and resulting rule is not based upon science and the facts; therefore it is arbitrary and capricious.

MMS issues draft rules for offshore renewable energy facilities

Written by Mike Pisauro on July 9th, 2008 in Ocean, Renewable Energy | No Comments »

New Jersey undertook a blue ribbon panel process from 2004 to May 2006 to examine the issues surrounding the wind farms off the coast of New Jersey. The panel proposed a limited test pilot program of not more than 350 megawatts of energy. The State then went forward and put out to bid a request for proposals for the test program. Five entities have bid on that request. Simultaneousto that bidding process, DEP has set up a baseline study of the habitat in the possible pilot areas from the coast outwards for 20 nautical miles.

The pilot wind farm is anywhere from 3 miles off the coast to 16 or more miles of the coast of New Jersey. Anything outside of three miles becomes the jurisdiction of the federal government. Right now there are no rules setting for the standards and procedures for obtaining the leases and permits necessary for an off-shore wind facility. Over two years after the proposed regulations were due under the Energy Policy Act of 2005, MMS has proposed the regulations. Carolyn Elefant wrote about the 462 page proposal on her blog: RenewablesOffshore (here) and gave a brief overview of the proposal. These rules will be vital to the ability of any of the five bidders to actually implement the pilot program. Also, as the State’s energy master plan’s goal of 1000 mw of off-shore wind generation.
I hope to give them a read myself and hopefully will provide more details in a later post.