1/29/08
Dominic Tumas writes to alert everyone that The Landings development is on the Planning Board calendar for their March meeting!
1/28/2008
Full text below of letter sent to DEP commissioner Lisa Jackson from a great friend of OIRA!
MAGGS &
McDERMOTT, LLC
ATTORNEYS
AT Law
BRIELLE, NEW
(732)
223-9870
FAX: (732) 223-7367
JAMES
A. MAGGS
JOHN
J. McDERMOTT III *
TENNANT D. MAGEE, SR. ** SAMUEL J. V ACCHIANO
* NJ&NYBAR
** NJ&MDBAR
*** DC&CABAR
VIA CERTIFIED MAIL RRR
Lisa P. Jackson,
Commissioner
New Jersey
Department of Environmental Protection
Re:
Permit No.
1516-06-0022.1 CAF060001 a/k/a: The Landings at Little Egg Harbor
Dear Commissioner Jackson:
TIMOTHY
B. MILLS ***
(202) 457-8090 (202)
457-8278 (FAX)
REPLY
To:
Please
be advised that I am a resident of
As
you are certainly aware, the New Jersey Department of Environmental Protection
(hereinafter the "NJDEP") issued Green Street Development, LLC
(hereinafter the "Applicant"), the CAFRA Permit on
I
requested, via the Open Public Records Act, all such declarations by
the NJDEP that the Application for the CAFRA Permit was complete for final
review, along with all correspondence by the Original Applicant, the Applicant,
and the NJDEP relating to the CAFRA Permit. Upon review of the entire file relating to
the CAFRA Permit, I believe I have discovered a number of issues with the
NJDEP's actions as they relate to the applicable statutory law and
administrative code. Based upon the following issues as set forth at length herein, I believe that the
NJDEP's granting of the CAFRA Permit was ultra
vires and improper.
Page 2
As
a result, I am requesting that the NJDEP rescind the CAFRA Permit and revisit
the Application in accordance with the proper and legal procedures. In the
alternative, I am requesting that the time period pursuant to N.lA.C. 7:7-5.1.
be extended in order that an adjudicatory hearing be scheduled.
My foregoing
requests are supported by the following arguments set forth herein:
A.
THE NJDEP IMPROPERLY APPROVED THE CAFRA PERMIT
PURSUANT TO N.J.A.C. 7:7-4.7;
B.
THE NJDEP FAILED TO PROVIDE THE REQUIRED NOTICE TO
INTERESTED PERSONS PURSUANT TO N.J.A.C. 7:7-4.8; and
C.
EXISTING AND NEW ENVIRONMENTAL FACTS RELATING TO THE
PROJECT SITE NECESSITATE AN ACTUAL REVIEW AND DECISION ON THE APPLICATION BY
THE NJDEP.
It
is my position that each of the administrative code provisions the NJDEP failed
to comply with are "legislative rules" that are binding upon the
agency. See
A.
THE NJDEP IMPROPERLY APPROVED THE CAFRA PERMIT
PURSUANT TO N.J.A.C. 7:7-4.7
Specifically,
the NJDEP improperly approved the Applicant's CAFRA Permit pursuant to N.lA.C.
7:7-4.7, which provides in pertinent part:
(a) The Department
shall act on CAFRA applications within 60 days of the public hearing, or within
60 days of the close of the public comment period, unless additional information was required, in which case the
Department shall act on the application within 90 days of the date it was
declared complete for final review. [(Emphasis added).]
My
review of the documents obtained from the NJDEP reveals the following time-line
of public hearings, public comment periods, and declarations by the NJDEP:
Page 3
1.
On
2.
The Original
Applicant mailed its Application for the CAFRA Permit and request for a Letter
of Interpretation to all property owners within 200' via Certified Mail RRR.
3.
The NJDEP
initially deemed the Original Applicant's Application for a CAFRA Permit
"complete for public comment as of
4.
The Original
Applicant mailed notice of the public comment period on
5.
On September 15,
2006, the NJDEP advised the Original Applicant that the public comment period
had ended, but that the "application has not been considered complete for
review since Lot 3, Block 326.1 was not included in the Public Comment Notice
and Individual Notices" and required that the Original Applicant complete
an additional thirty (30) day public comment period and to re-notice all
property owners within 200'.
6.
In that
(A) address comments regarding the
Archaeological Survey Report dated
(B) to note on the revised plans the 6 acres
of the Native American mortuary area
proposed to be
preserved;
(C) to provide letters from the Little Egg
Harbor Municipal Utilities Authority stating
that there are
adequate water and sewer provisions, the actual capacities of the utilities;
and the capacity the proposed project will require from each system; and
(D) a complete summary of any previous
development which would be considered
common ownership
with this lot as of
7.
On
(A) the archaeological survey will be
addressed by
(B) a more detailed letter re water and sewer
capacity will be provided; and
Page 4
(C) the previous development would be
considered common ownership with
of
8.
The Applicant's
next correspondence to the NJDEP is dated
9.
In a letter dated
(A) applied
for a site number for the historic site identified in the project area;
(B) will work towards a long-term curation of
the artifacts recovered from the project
and will work to
them being properly curated; and
(C) there needs to be a follow-up
communication with the appropriate Native
American tribe.
10.
On
11.
In correspondence
dated March 8, 2007, from Marianne G. Risely, Environmental Specialist with
Adamas, Rehmann & Heggan
(engineers for the Applicant) to Michele Kirk, Project Manager, Ms. Risely
advises what she claims are the items that remaining outstanding with the
Application:
(A) revised LURP Form indicating the change in
the name of the applicant;
(B) the Applicant already provided the State
Office of Historic Preservation with
additional
information required;
(C) the Applicant will provide a revised
submission by the end of March 2007 that
will include the
rerouted sewer and water main locations as approved on
(D) the Applicant will provide an
Environmental Base Map displaying the required
wetland buffers,
300' black crowned nigh heron buffer and 6 acre archaeological restricted area.
Page 5
12.
The NJDEP
received on
13.
The NJDEP
received on April 9, 2007, the Applicant's "resubmission application ...
based on the revisions made to the proposed routing of the sewer and water line
as well as the change in the applicant's name for this project"
(hereinafter the "Revised Submissions"). The Revised Submissions
included:
(A) revised LURP2 Form with the signature of
the new applicant;
(B) advised that the
Historic
Preservation claiming the deficiencies were addressed;
(C) revised plans, last revised on
rerouting the
sewer and water main due to the nesting area associated with the Black Crowned
Night Heron and that the "increase in buffer area disturbed from the
initial application is based on the approved Letter of Interpretation and the
wetlands buffer requirement of 150 feet";
(D) six copies of the revised Environmental
Compliance Plans that displays the
wetlands, the
wetlands buffer, the 6 acre archaeological area and the 300 foot buffer
requirement.
14.
The NJDEP
received on
15. On
The
foregoing time-line raises a number of concerns when analyzed in accordance
with the administrative code. The most
important and foremost is that the NJDEP improperly approved the CAFRA Permit
pursuant to NJ.A.C. 7:7-4.7. Again,
the administrative code states that the NJDEP "shall act on CAFRA
applications within 60 days of the public hearing, or within 60 days of the
close of the public comment period". In this matter, the close of the public
comment period began on
Page 6
In
addition, I am aware of N.J.S.A. 13:19-9, which states that the NJDEP
shall approve, approve with conditions, or disapprove an application within
ninety (90) days from the receipt of the additional information requested - not
ninety (90) days from the date the application was declared complete. However, the Commissioner set forth more
specific regulations in the administrative code and the NJDEP specifically
acted in accordance with N.lA.C. 7:7-4.7 and not N.J.S.A. 13:19-9
as provided in the CAFRA Permit. And,
as stated above, it is my position that each of the administrative code
provisions the NJDEP failed to comply with are "legislative rules"
that are binding upon the NJDEP. See United States, ex rel., supra,
347
Moreover,
my review of the file indicates that neither the Original Applicant nor the
Applicant provided the affidavit relating to the common ownership issue with
In
either event, the Applicant is not be entitled to deemed approval under N.lA.C.
7:7-4.7. The application was not deemed complete by the
NJDEP and the Applicant did not provide all of the additional information
requested.
B.
THE
NJDEP FAILED TO PROVIDE THE REQUIRED NOTICE TO INTERESTED PERSONS PURSUANT TO N.J.A.C.
7:7-4.8
One
of the major complaints and irregularities regarding the deemed approval of the
CAFRA Permit is the NJDEP's secretive nature in issuing it. All along, certain residents of
Pursuant to N.J.A.C. 7:7-4.8, the NJDEP is to provide notice to
"interested persons who specifically requested notice". My
review of the file indicates a number of persons who certainly fall into that
category and to whom notice of the
1. State Senator Leonard Connors;
Page 7
2. State Assemblyman Christopher Connors;
3. State Assemblyman Brian Rumpf;
4. Victoria Munro, resident of
5. Riki Losiewicz, resident of
6. The Osborn Island Residents Association,
Inc.
In fact, the
following specific letters evidence that the foregoing persons qualified as
"interested persons who specifically requested notice":
1.
On
2.
On
3.
On
4.
On August
14,2006, you, as the Commissioner of the NJDEP, sent direct correspondence to
Senator Leonard Connors, Assemblyman Christopher Connors, and Assemblyman Brian
Rumpf advising that Ms. Losiewicz's comments would be considered as part of the
application for a CAPRA Permit;
5.
On
6.
On
7.
On
8. On
Page 8
Assemblyman Brian
Rumpf sent a letter to Riki Losiewicz advising that Senator Connors contacted
you, as Commissioner of the NJDEP, and that you advised the application for the
CAFRA Permit was being reviewed;
9.
On
10.
11.
On November
1,2006, you, as the Commissioner of the NJDEP, sent a letter to Senator Leonard
Connors advising that the application completed the 30-day Public Comment
period but has been deemed deficient until such time the Division receives
additional information requested from the applicant;
12.
On
13.
On
14.
On
15. On
Certainly the
foregoing correspondence establishes, at the very least, that Riki Losiewicz,
Victoria Munro, the Osborn Island Residents Association, Inc., and the local
delegation of Senator Leonard Connors, Assemblyman Christopher Connors, and
Assemblyman Brian Rumpf were interested persons entitled to personal notice of
the NJDEP's deemed approval on August 6, 2007.
In
the event you disagree with such a characterization of the foregoing as
interested persons pursuant to N.J.A.C. 7:7-4.8, why was your letter
dated November 1, 2006 letter sent to both of the Connors and Rump
relating to the notice period? Moreover, why would Thomas Micai send a letter
to Victoria Munro on
Page 9
In
any event, it is clear that personal notice of the
C.
EXISTING
AND NEW ENVIRONMENTAL FACTS RELATING TO THE PROJECT SITE NECESSITATE AN ACTUAL
REVIEW AND DECISION ON THE APPLICATION BY THE NJDEP
I would like to draw your attention to a recent fact
that has been discovered at the site of the CAFRA Permit. Specifically,
The
Bald Eagle sighting is yet another example of the environmentally sensitive
nature of
In
light of the foregoing, at the very least, the residents of
Finally,
my reading of the statutory law and administrative code reveals that the
Commissioner of the NJDEP has a duty and the authority to review, approve, and
disapprove CAFRA applications regardless of deemed approval if the application
itself otherwise did not conform with N.J. S .A. 13: 19-1, et seq. Given
the nature of your substantial authority over applications, it would appear
that the prudent action and choice in this case would be to issue a decision of
approval or disapproval of the CAFRA Permit on the merits and not pursuant to
the deemed approval provisions of NJ.A.C. 7:7-4.7.
Page 10
CONCLUSIONS
Based upon the
foregoing, I am respectfully requesting that the NJDEP:
1.
Rescind the CAFRA
Permit and engage in an actual review of the Applicant's application;
2.
Enforce the
provisions of N.J.A.C. 7:7-4.7 upon the existing facts, which would result in
the recision of the CAFRA Permit, as it was never deemed complete for final
review and because the Applicant failed to provide all documents requested by
the NJDEP; or
3.
Enforce the
provisions of N.J.A.C. 7:7-4.8 and recognize that interested persons were not
provided notice, and, as a result, extend the time period for an adjudicatory
hearing pursuant to N.J.A.C. 7:7-5.1.
Thank you for your attention to this
matter. I look forward to your response.
TDM/maf
cc: Riki Losiewicz (via first
class mail)
Victoria Munro (via first
class mail)
Peter Marcellino (via first
class mail)
Senator
Christopher Connors (via first class mail)
Assemblyman Brian
Rumpf (via first class mail)
Howard Butensky,
Esquire (via first class mail)
Emily Previti, The
Press of Atlantic City (via first class mail)
Green Street
Development, LLC (via first class mail)
Osborn Island
Residents Association, Inc. (via first class mail)
12/19/07
Posted
by the Times-Beacon
Newspapers
There goes the neighborhood, the environment
I am a property owner and taxpayer on Osborn Island, Little Egg Harbor.
I am very distressed at the projected development on this very small bay front island of a 74-plus-unit development. There are significant environmental issues regarding the impact this development of the 46-acre parcel will have on wildlife, the bay and the very small island habitat with approximately 500 residences.
The environmental issues of the development will be:
That it will produce significant storm water runoff into a lagoon adjacent to Great Bay,
which is a component of the Jacques Cousteau National Estuarine Research Reserve;
That it will greatly impact the existing black-crowned night heron rookery by the clearing of a 25-foot-wide easement through the middle of the rookery;
The elimination of two isolated freshwater wetlands on the island;
The destruction of one of the few remaining maritime forests in the state; and
It will impact a documented Indian burial ground.
The 74-unit development will also have major traffic and infrastructure impacts to the island. The addition of these homes would bring approximately 120 cars crossing over our small two-lane wooden bridge, which most likely needs repair.
Our current water pumping station will not be able to handle the additional load. Every summer weekend, the water pressure drops significantly.
The addition of 74 more homes (we currently have approximately 500 building lots) will be a 15 percent increase; These 74 homes will also bring additional pesticides (from the new lawns and weed killers). Where will it run off? Into the lagoons and Great Bay.
When we get one of those super high tides, especially a nor'easter, the water table in that area rises to almost surface level. Where will the water flow once all that land becomes homes, streets, driveways, etc.?
I realize that people on Osborn Island have a bigger vested interest in stopping this project, but remember, with the increase of these 74 homes will bring the requirement for additional services — police, fire, schools — which mean higher property taxes for all residents of Little Egg Harbor.
JOHN D. MOCKO
Osborn Island, Little Egg Harbor
Almost immediately after Centex Homes put in an application in July 2006 to build 74 homes on the site of a maritime forest in the Osborn Island section of the township, residents of the community began their efforts to block the project. This included collecting more than 200 signatures for a petition and contacting environmental groups such as the Pinelands Preservation Alliance and the Sierra Club.
"The environmental impact of tearing down this forest would be devastating," said Vicky Munro, a member of the Osborn Island Homeowners Association. "Not only would the wildlife like the black-crowned heron, which is an endangered species, have nowhere to go, but the stormwater runoff caused by removing the trees would damage our waterways."
Munro also said the land is a known Indian burial ground.
However, the residents learned that Aug. 6 the DEP approved the developer - which is now Green Street Development, LLC - for a CAFRA permit.
The CAFRA permit is designed to promote environmental protection but at the same time encourage responsible development of lands in order to improve the economy of an area, according to the DEP.
The residents are concerned that with the developer being given permission to construct homes, the value of the land will increase beyond what they would be able to raise to preserve it.
"We felt extremely foolish because we were out in the rain petitioning people to vote for the ballot question in the recent election that would set more money aside for open space," Munro said. "Because we felt that if it passed it would give us a better chance to get help saving the forest. But what we didn't know was the permit had been granted already."
The representatives from the 9th Legislative District wrote a letter to DEP Commissioner Lisa Jackson on Nov. 15 voicing their displeasure with the agency approving the permit without the knowledge of their constituents or the lawmakers themselves.
Assemblyman Brian E. Rumpf, R-Burlington, Ocean, Atlantic, said the delegation asked Jackson to review the approval process of the permit in order to guarantee it was handled correctly.
"It is extremely important to preserve these lands, especially in southern Ocean County, where there has been such rapid development in the last 15 years, and the opportunities to preserve lands are rapidly diminishing," said Rumpf, who was mayor of Little Egg Harbor from 2000 to 2004 and helped preserve a two-acre portion of the forest during that time.
According to the permit, it was issued based on the DEP's failure to make its decision on the permit within the time limit set forth in the Coastal Permit Program Rules.
Mark Mauriello, an assistant commissioner in charge of land use management for the DEP, said the permit was "caught up" during a period of time when a number of staff members, including the project manager for this case, were retiring or leaving.
When the application was not reviewed within the 90 days, Mauriello said, it was automatically approved, which is required.
But Mauriello said the permit would not have changed even if it had been reviewed on time, with the exception of the configuration of a tree save unit.
And even though the residents and the 9th District Legislators were upset that they were not notified when the permit was approved, Mauriello said, the DEP requires the nearby residents to be notified about the application prior to the decision but not after. But the DEP does post the ultimate decisions on its Web site.
However, Munro said the public was never given a chance to speak out against the application before it was approved.
"They planned to hold a public meeting on it and we all showed up, but (the developer) backed out," Munro said. "Next thing we know the application is approved."
Munro also said the residents had asked the township to use green acres money to help preserve that land.
However, township Administrator Ray Urezzio said that while the municipality did rate the property, the "dollars signs being thrown around" were far too much for the township to fund itself and that it was even still unclear whether the owner of the property was interested in selling it.
Urezzio pointed to a letter from township engineer James Oris dated Oct. 31, 2006, which said in order for the property to be considered for acquisition its owner would have submit a copy of the Ocean County Natural Lands Trust Nomination Form, the title policy, the deed and an outbound survey. Urezzio said that, to date, he does not believe any of this was done.
"We're down and we definitely took a big hit, but we are not defeated," said Munro, adding the residents are planning to direct their future efforts towards municipal officials and have hired a lawyer to review the DEP decision. "It is important that we don't give up. Our environment deserves that much from us."
To e-mail Robert Spahr at The Press:
11/18/07
Residents upset, say they'll fight
Posted by the Asbury Park Press on 11/15/07
BY HARTRIONO B. SASTROWARDOYO
MANAHAWKIN BUREAU
Post Comment
LITTLE EGG HARBOR — A developer who plans to build 74 homes on Osborn Island now has the needed permit from state environmental officials to move work forward, irking residents in the community who oppose more development there and who vow to fight it.
Officials for the state Department of Environmental Protection have granted a Coastal Area Facility Review Act permit to a Warren developer to build the homes.
Vicky Munro, 50, an Ocean Boulevard resident, discovered this as she examined the posting on a town hall bulletin board earlier this week. The document stated that the CAFRA permit had been given to Green Street Development, allowing the builder to construct 74 single-family homes along with roads and a stormwater management basin.
However, the environmental group working to preserve the site vows its work will continue, and that homes will not be built there.
Officials for the DEP could not be reached Wednesday for comment about the permit.
Munro, along with other Osborn Island residents, have long fought against the almost 47-acre development, known as the Landings at Little Egg Harbor, a roughly triangular-shaped property bounded by Radio Road, Ocean Boulevard and Beach Drive.
One of the items on the permit that upset Munro and other residents is the date of its issuance: Aug. 6, 2007.
On Oct. 25, Osborn Island residents, including Munro, as well as representatives from Trust For Public Land and other environmental preservation groups gathered at the site in order to garner support for state Question 3, which would authorize $200 million in bonds for land conservation and preservation purposes. The public measure passed.
"We all felt a little foolish standing out in the rain that Thursday," Munro said.
In addition, Kathy Haake, a TPL project manager, announced that day that the organization was working toward preserving the land, calling it " . . . not a done deal, but we are working on it."
She said Wednesday that Trust for Public Land was still looking for a steward for the site.
"The landowner had decided to go forward with the approval, just in case Trust for Public Land and its partners cannot consummate the deal. I intend not to let that happen," Haake said.
But Munro said that giving approval to build the homes increases that value of the land, and thus makes preservation more difficult. Resident Riki Losiewicz, also of Ocean Boulevard, was little assuaged.
"We have to pin all our hopes on (Haake's finding of a steward) when we should have protection from our own legislature," Losiewicz said.
Hartriono B. Sastrowardoyo: (609) 978-4581 or
Local event part of statewide push on land acquisition ballot question
Posted by the Asbury Park Press on 10/27/07
BY HARTRIONO B. SASTROWARDOYO
MANAHAWKIN BUREAU
And yet for Munro, the day couldn't have been brighter. A Trust For Public Land official announced that there is a good chance that an almost 47-acre parcel on the island will remain undeveloped.
"It's not a done deal, but we are working on it," said Kathy Haake, a Trust For Public Land project manager. Haake said the organization is working to have the land to acquisitioned by "an appropriate steward," either the township, county or state.
However, according to the Osborn Island Residents Association Web site, the purchase has been successfully negotiated with the land owner.
The representatives, including Haake, are partners in the New Jersey — Keep It Green campaign, a coalition of more than 90 environmental organizations, land trusts and preservation groups. They were there also to garner support for the passage of state Question 3 on the Nov. 6 election ballot, which would authorize $200 million to buy land for conservation and recreation purposes, preserve farmland, preserve open space properties prone to flooding, and fund historic preservation projects.
The Osborn Island property for Thursday's event was chosen as an example of local land in need of preservation. It is bounded by Radio Road, Beach Drive and Ocean Boulevard. Seventy-four single-family homes have been proposed to be built there, first by Dallas-based Centex and then by Green Street Development, with an approximately 20-acre tract reserved for storm water management, forest and archaeological preservation and open space.
One sign on the property, erected by Keep It Green, urges people to vote yes to the public question. Another informed passers-by that the property had been identified by the township as a potential open space conservation area. They stood in contrast to a sign on the property just across the street, announcing the forthcoming of Nantucket Cove, a nine-lot single-family home development by another developer, Lighthouse Development Co., Stafford.
Munro, 50, of Ocean Boulevard said she had sent videotapes and letters to various legislators calling for preservation of the land. An Indian burial ground may lie beneath the property, and the marsh on the property is a rookery for shorebirds, she said.
"Once it's developed you can't get it back," Munro said.
Riki Losiewicz, also of Ocean Boulevard, has been urging preservation of the land.
"The Garden State Preservation Trust Fund must be supported with our votes if we are to ensure the quality of our water here at the shore, and save our unique and irreplaceable maritime forest on Osborn Island," Losiewicz said in a prepared statement.
She added, "The upland forest is both rich in historic value, and home to endangered wildlife species that demand protection from the ruins of overdevelopment encroaching on our town."
The event Thursday was one of several such meetings hosted by Keep It Green not only across Monmouth and Ocean counties but statewide during the week. Other coalition partners met for similar reasons on Thursday in Manasquan, Cape May and Tewksbury in Hunterdon County.
This is a re-print from “The Sandpaper” of June 27, 2007
Osborn Island Residents Lobby To Preserve Land
The Osborn Island Residents Association (OIRA) is again getting out the word that time is of the essence to preserve the remaining 46-acre maritime forest on their small island in Little Egg Harbor Township.
The NJ State Senate is in the process of reviewing worthy projects to receive federal CELCP funds (Coastal and Estuarine Land Conservation Program) through the National Oceanic and Atmospheric Administration (NOAA). At stake is $3 million that could come their way if enough groundswell can be created locally said OIRA member Riki Losiewicz.
Kathy Haake, local Project Manager for the Trust for Public Land (TPL), has been negotiating with the landowner to purchase the property using a myriad of conservation funds.
Haake said that in the recent past, three worthy local conservation projects received CELCP funding to help conserve land. In December 2004, a consortium of conservation groups preserved the 783.9-acre Harbor Group in Little Egg Harbor; in November and December 2005, the 93.17-acre Manahawkin Marsh; and 27.67-acre Marsh extension in Stafford Township were acquired; and in November 2006, the 118-acre Potter’s Creek tract in Berkeley.
U.S. Senator Frank Lautenberg & Congressman Jim Saxton, both representing New Jersey, are on the authorizing sub-committees for NOAA, which funds CELCP.
“Our congressional delegation have been leaders in coastal conservation in New Jersey”, said Haake. “Senators Frank Lautenberg & Robert Menendez and Congressman Saxton are advocating for all conservation funding across New Jersey, including CELCP funds for the preservation of Osborn Island. Senator Lautenberg & Congressman Saxton are leading the effort to re-authorize the CELCP program from their positions on the authorizing sub-committees for NOAA.”
According to Haake, although Centex Homes has pulled its plan to d