In Re Flood Hazard Area Verification

NJ Super. Ct Appellate Division, Nos. A-5541-11T1, A-6364-11T1, June 20, 2014: Hearing required to amend conservation easement.

As of this writing the opinion is not approved for publication.

In 2001 the Italian American Sportsmen’s Club, Inc. (“IASC”) and developer Crestwood obtained approvals from the New Jersey DEP, including a wetlands transition area waiver (“the 2001 TAW”), to subdivide a large IASC parcel (“Lot 47”) and develop some of the lots. The DEP’s approval of the 2001 TAW was conditioned on the granting to DEP of a deed restriction or conservation easement, among other things. The conservation easement was never recorded. More recently another developer (“Sharbell”) obtained approvals from the DEP for a project on other lots carved out of Lot 47. As part of its application, Sharbell obtained approval (the “Sharbell TAW”) to modify the boundaries of the transition area specified in the 2001 TAW, by encroaching on some of the transition area while creating a larger transition area in other locations on the site. A local group, Save Hamilton Open Space (“SHOS”), said Sharbell should not be allowed any relief that would alter the 2001 TAW. SHOS appealed issuance of the Sharbell TAW, in part based on the failure to record the conservation easement. The DEP took the position that IASC’s violation of the easement recording requirement was a separate problem that should not stand in the way of Sharbell’s permits.

The court held that the failure to record the conservation easement required the DEP not to approve Sharbell’s proposed changes to the transition area, and it vacated the Sharbell TAW, without prejudice. The court pointed to a specific state regulation, Subsection (2)(i) of N.J.A.C. 7:7A-6.1(e), which required that the boundaries of the TAW originally approved by the DEP could not be modified except to a de minimis degree and then only if the conservation easement had been recorded. The court said that because the easement had not been recorded here, no modification should be allowed other than by following the procedure in New Jersey’s conservation easement enabling law (N.J.S.A. 13:8B) for releasing a conservation easement, in whole or in part. That procedure (which also applies to historic preservation easement) requires “that prior to any release, a public hearing shall be held … by the governmental body holding the restriction, or if held by a charitable conservancy, by the governing body of the municipality in which the land is situated.” As no such public hearing has been held in this case, the DEP, as holder of the easement, had not adhered to statutory procedure.

The court noted that the recording requirement for the conservation easement required as a condition to issuance of a TAW “presumably does not exist solely to guide only parties who may purchase or develop property containing wetlands or wetlands transition areas. The conservation restrictions are also intended to guide and protect the public at large, and to preserve freshwater wetlands as a valuable environmental resource for posterity. There is nothing in the text or history of the regulatory scheme to allow the recording obligation to be excused simply because compliance has become inconvenient due to the passage of time.”

The court said that the public hearing required by the conservation easement enabling act is “the appropriate forum to sort out the interests of all persons who are concerned about or affected by changes in the conservation restrictions, assuming that Sharbell still wishes to proceed with such changes.”

The unpublished decision is available until in or about July 7, 2014, at http://www.judiciary.state.nj.us/opinions/a5541-11a6364-11.pdf. Thereafter it should be available through the Rutgers Newark Law School web site.

Comments are closed.