Opinion
DOCKET NO. A-2126-13T3
06-15-2016
IN THE MATTER OF THE APPLICATION BY PINEVILLE BRUNSWICK DEVELOPMENT ASSOCIATES, CONCERNING BLOCK 82, LOT 15.02 IN THE TOWNSHIP OF SOUTH BRUNSWICK.
Jennifer Phillips Smith argued the cause for appellant 426 Royal, LLC (Gibbons PC, attorneys; Howard D. Geneslaw and Ms. Smith, of counsel and on the brief; Paul M. Hauge, on the brief). Lewin J. Weyl, Deputy Attorney General, argued the cause for respondent Delaware and Raritan Canal Commission (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mark A. Collier, Deputy Attorney General, on the brief). Paul H. Schneider argued the cause for respondent Pineville Brunswick Development Associates (Giordano, Halleran & Ciesla, attorneys; Mr. Schneider, of counsel and on the brief; Afiyfa H. Ellington, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino, Accurso and O'Connor. On appeal from the Delaware and Raritan Canal Commission. Jennifer Phillips Smith argued the cause for appellant 426 Royal, LLC (Gibbons PC, attorneys; Howard D. Geneslaw and Ms. Smith, of counsel and on the brief; Paul M. Hauge, on the brief). Lewin J. Weyl, Deputy Attorney General, argued the cause for respondent Delaware and Raritan Canal Commission (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mark A. Collier, Deputy Attorney General, on the brief). Paul H. Schneider argued the cause for respondent Pineville Brunswick Development Associates (Giordano, Halleran & Ciesla, attorneys; Mr. Schneider, of counsel and on the brief; Afiyfa H. Ellington, on the brief). PER CURIAM
Petitioner 426 Royal, LLC, appeals from a November 2013 approval issued by the Delaware and Raritan Canal Commission to respondent Pineville Brunswick Development Associates, LP, for the second phase of Pineville's Heritage Shopping Center project in South Brunswick. Royal is the owner of a competing retail complex located within a mile of Pineville's property. It contends the Commission acted illegally in approving the Phase II project, which will entail construction in a stream corridor of a detention basin and retaining wall prohibited by current regulation, by relying on a 2001 conservation easement the Commission required as a condition of approval of Phase I. Royal also contends the approval should be reversed because Pineville proposed to remove native vegetation from the stream corridor and failed to incorporate nonstructural stormwater management strategies in violation of the stream corridor impact regulations. We reject these arguments and affirm.
In order to understand Pineville's current application, some background is in order. Pineville owns a forty-five acre parcel of land on the southeast side of Route 1 and Stouts Lane (Block 82, Lot 15.02) in South Brunswick on which it proposes to build a 75,798 square foot supermarket and a retail pad. The project is the second phase of the Heritage Shopping Center, a large retail complex located on an adjacent seventy-two acre parcel (Block 82, Lot 15.01), which Pineville developed over fifteen years ago in the first phase of this anticipated two-phase project. The supermarket site is undeveloped but for an access road and stormwater infrastructure constructed in Phase I to service the development contemplated in both phases of the project.
The Heathcote Brook, a stream which enters the Delaware and Raritan Canal Park near the Kingston Lock, traverses the property. The presence of the stream has made the Commission's approval necessary for any development on either parcel. See N.J.S.A. 13:13A-14; N.J.A.C. 7:45-7.1(a); Infinity Outdoor, Inc. v. Del. & Raritan Canal Comm'n, 388 N.J. Super. 278, 285 (App. Div. 2006) (the Commission "is assigned the responsibility to delineate zones in which it reviews all private and public projects that may affect the Park," and is the "ultimate administrative arbiter of any project within the review zone").
In July 1996, the Commission approved the application of Pineville's predecessor in title for a waiver of strict compliance with the stream corridor impact regulations for the Heritage Shopping Center project. See N.J.A.C. 7:45-10.4 (1996). At that time, the regulations prohibited construction of new retaining walls within the stream corridor, N.J.A.C. 7:45-7.4(a)(1) (1996), and permitted construction of detention or retention basins only as a conditional use, N.J.A.C. 7:45-7.5(a)(7) (1996). Further, the regulations required all applicants to take whatever measures necessary, including granting easements, deed restrictions, or other measures satisfactory to the Commission, to assure that stream corridors would be preserved and "to prevent additional encroachments in the stream corridor likely to occur as a result of the approval granted." N.J.A.C. 7:45-7.6 (1996).
Consistent with the Commission's 1996 waiver, Pineville's predecessor in April 1998 applied for a certificate of approval for Phase I: a proposed 210,000 square foot retail shopping center with parking for 1140 cars on the seventy-two acre parcel; and on the forty-five acre supermarket site slated for development in Phase II, an access road, retaining wall, two detention basins, and improvements to the intersection of Route 1 and Stouts Lane. The Commission granted a certificate of approval for the project in 2002, conditioned on its receipt of a stream corridor conservation easement.
As pertinent to this appeal, the conservation easement, which was designed to ensure that "additional encroachments likely to follow from the Approval will not have an adverse impact on the stream corridor," prohibited all future development in that corridor except for the construction of "future stormwater detention facilities required to serve the future development . . . ." Specifically, the easement provides as relevant here:
WHEREAS, the Approval granted by the Commission requires Owner to enter into a stream corridor conservation easement agreement with the Commission to insure that additional encroachments likely to follow from the Approval will not have an adverse impact on the stream corridor and will otherwise comply with the Commission's requirements and with the Master Plan for the Delaware and Raritan Canal State Park; and,
WHEREAS, a portion of the stream corridor (the Corridor) of Heathcote Brook, which is subject to Stream Corridor Impact review by the Commission, is located on the Property, and this portion of the stream corridor is shown on the plan(s) entitled Heritage Shopping Center DRCC Conservation Easement Plan, prepared by T&M Associates, and dated Last Revised 12/17/01, and is more fully described in Exhibit A; which is attached hereto and incorporated herein by reference. The information on this plan (or plans) shall supersede any information in this Agreement.
NOW THEREFORE, in consideration of the Approval granted by the Commission, Owner and the Commission agree as follows:
1. The Corridor is regulated by the Commission pursuant to the Regulations effective the date of issuance of the Commission's Approval for this project.
2. The following uses shall be permitted in the corridor without the review or approval of the Commission:
. . . .
(d) Any uses approved by the Commission as part of this Approval and those uses as shown in the cross hatched area at Exhibit A[,] which include that portion of the Stouts Lane Access Road, the culvert, retaining walls, related appurtenances and the future stormwater detention facilities required to serve the future development of the remainder of proposed lot 15.02 all of which will lie within the DRCC Conservation Easement are hereinafter collectively referred to as the "Permitted Uses."
Both the Commission and Pineville's predecessor executed the document, and it was recorded in January 2002. No appeal was ever taken from the Commission's 1996 waiver, its 2002 certificate of approval for the project, or the easement agreement.
3. Except for the Permitted Uses, all other uses are prohibited.
[Emphasis added.]
Construction of the stormwater infrastructure began in 2003, and in 2005 Pineville applied to the Commission for approval of an amended site plan for both parcels (Block 82, Lots 15.01 & 15.02), slightly reducing the size of the shopping center, its impervious coverage and anticipated stormwater volume. The Commission issued an approval for the Heritage Shopping Center modifications in February 2006 incorporating the easement. No appeal was taken from that approval.
In December 2006, counsel for Pineville wrote to the Executive Director of the Commission requesting confirmation that installation of the stormwater management basin proposed for Phase II complied with the 2001 easement agreement and "is allowable under the DRCC Regulations." Counsel's letter was likely prompted by the Commission in 2004 having removed "[d]etention or retention basins" from conditionally permitted uses within all stream corridors. N.J.A.C. 7:45-6.4(a)(7) (2004); 36 N.J.R. 3583(a) (Aug. 2, 2004). The Executive Director responded by letter of January 8, 2007 "confirm[ing] that the approvals issued for the above-referenced projects (Phases I and II), dated January 16, 2002 and February 15, 2006, permit the installation of stormwater management facilities within the stream corridor that is preserved through an easement held by the Canal Commission" in the cross-hatched location described on the easement plan.
In July 2012, Pineville began the process for approval of Phase II of the Heritage Shopping Center project, consisting of its supermarket and retail pad and including a new stormwater basin and retaining wall within the cross-hatched portion of the Easement Plan. In 2009, the Commission had acted to prohibit detention and retention basins within all stream corridors, along with previously prohibited retaining walls. N.J.A.C. 7:45-9.3(a)(1) (2009); 41 N.J.R. 2235(a), 2256 (June 1, 2009).
In October 2013, Pineville secured preliminary and final site plan approval for Phase II of the Heritage Shopping Center from South Brunswick's Planning Board. With site plan approval in hand, Pineville sought a certificate of approval from the Commission for Phase II of the project.
We today affirmed those approvals against a challenge by Royal in a case argued back-to-back with this appeal. 426 Royal, LLC v. Planning Bd. of South Brunswick, No. A-1334-14 (App. Div. June 15, 2016). In a case last term, we rejected Royal's appeal contesting the re-zoning of Pineville's supermarket site. 426 Royal, LLC v. Twp. of South Brunswick, No. A-0461-13 (App. Div. July 27, 2015).
The Commission considered Pineville's application at its October 2013 public meeting. Royal submitted an eleven-page letter detailing its objections to the Phase II project and testified in opposition. After hearing from lawyers for both Pineville and Royal and directing questions to each, including their positions on the meaning and effect of the 2002 easement agreement, the Commission determined to defer a decision to its next monthly meeting when it could have the benefit of additional information and the response of its staff.
After reviewing additional information from both Pineville and Royal, the Commission staff recommended approval of Phase II of the project. In a report detailing the history of the project, staff explained that re-review under the Commission's current stream corridor or waiver regulations of the location of the stormwater facility in the stream corridor was not appropriate in light of the 2002 recorded stream corridor easement, which included retaining walls and the future stormwater detention facilities required to serve the future development of the remainder of lot 15.02 as permitted uses. The report noted that with the exception of the location of the detention basin and retaining wall, expressly permitted by the easement, the Phase II project complied with the Commission's regulations for stormwater runoff, N.J.A.C. 7:45-8.6; water quality, N.J.A.C. 7:45-8.7; groundwater recharge, N.J.A.C. 7:45-8.5; nonstructural stormwater management strategies, N.J.A.C. 7:45-8.4; and stormwater management maintenance plans, N.J.A.C. 7:45-8.8.
At its November 2013 meeting, the Commission again heard from representatives of both Pineville and Royal and received the recommendation of its staff. Following further discussion, the Commission voted unanimously to approve Phase II of the project with the previously permitted encroachment of almost one acre in the stream corridor easement reduced to the 700 square feet required for Phase II and any further development in the cross-hatched area forfeited. This appeal followed.
Our role in reviewing the decision of an administrative agency is, of course, limited. In re Proposed Quest Acad. Charter Sch. of Montclair Founders Grp., 216 N.J. 370, 385 (2013); Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). Agency decisions carry with them a presumption of reasonableness. City of Newark v. Nat. Res. Council, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980). We will not upset the determination of an administrative agency absent a showing that it was arbitrary, capricious, or unreasonable; that it lacked fair support in the evidence; or that it violated legislative policies. In re N.J. Pinelands Comm'n Resolution PC4-00-89, 356 N.J. Super. 363, 372 (App. Div.), certif. denied, 176 N.J. 281 (2003).
Although we are never bound by an agency's determination of a purely legal issue, Pinelands Pres. All. v. State, Dept. of Envtl. Prot., 436 N.J. Super. 510, 524 (App. Div. 2014), we nevertheless accord substantial deference to an agency's interpretation and application of its own regulations, especially on technical matters within the agency's particular expertise, In re Freshwater Wetlands Prot. Act Rules, 180 N.J. 478, 488-89 (2004). Applying those principles here, we are satisfied the Commission's approval of Phase II of the Heritage Shopping Center is sound and in accord with established law.
Royal's chief argument is that the Commission was not free to ignore its current regulations, which prohibit construction of retaining walls and detention basins in the stream corridor, in reliance on the 2001 conservation easement agreement the Commission entered into with a different developer as a condition of a now expired approval and its Executive Director's 2007 letter to Pineville that the Phase II detention facility could be constructed in the stream corridor in accordance with the easement agreement.
Neither the Commission nor Royal disputes that the Commission's 2002 and 2006 approvals have expired or that the 2007 letter did not constitute an approval by the Commission. They contend the Commission did not ignore its regulations in its review of Pineville's Phase II project. Instead, they maintain the Commission conducted a rigorous review under current regulations of the stormwater facility proposed in Phase II and determined it met all of the Commission's requirements for stormwater runoff, water quality, groundwater recharge, nonstructural stormwater management strategies, and stormwater management maintenance plans.
What the Commission did not do in Phase II was to re-review under its current stream corridor or waiver regulations the placement of a stormwater detention facility in the stream corridor authorized by the 2002 easement entered into as a condition of approval of Phase I. The Commission and Pineville claim that determination is in accord with the Supreme Court's decision in In re CAFRA Permit No. 87-0959-5 Issued to Gateway Associates, 152 N.J. 287 (1997), and that Royal's challenge to the Commission's 1996 decision to waive strict compliance with then existing stream corridor regulations and to enter into an easement agreement as a condition of its 2002 approval, which permitted construction of a stormwater facility in an approved location in the stream corridor to service future development of lot 15.02, is well out of time.
Although Royal maintains that Gateway is distinguishable, we believe the Commission and Pineville have the better argument that the case applies here and compels our affirmance of the Commission's decision. In Gateway, the Department of Environmental Protection issued a Coastal Area Facility Review Act (CAFRA) permit to a developer, Gateway, in 1989, which incorporated the Department's 1986 waiver of its Island Corridor Policy to the developer's project. Gateway, supra, 152 N.J. at 292-95.
In 1993, when the Department was reviewing the developer's application for a major modification to the permit, it determined to evaluate only the changes proposed to the project and "not 'reevaluate issues resolved during . . . review of the original permit application,'" including its prior policy waiver. Id. at 297. The American Littoral Society (ALS), which had failed to appeal from the 1986 policy waiver or the 1989 permit, appealed the 1993 permit seeking to challenge the waiver. Ibid.
The Supreme Court ruled the challenge untimely. The Court found the Department had made a reasoned decision to waive application of its Island Corridor Policy to Gateway's site in 1986, on which the developer had relied by taking "affirmative steps at considerable expense to develop the site." Id. at 300. The Court concluded that "[e]ven if the ALS's failure to seek relief [from] the waiver decision . . . [was] excusable, its failure to appeal the issuance of [the] original CAFRA permit in 1989 [was] not. The DEP incorporated the waiver in the permit. That permit was a final agency decision." Id. at 300-01.
The Court rejected the ALS's argument that the Department's decision to incorporate its earlier waiver into its review of the developer's application for a major modification permit was a new decision on a new project making its appeal of the waiver timely. Id. at 302. Justice Pollock explained:
[T]he DEP did not make a "second" decision to waive the Policy. Instead of reevaluating the criteria applicable to the 1986 decision, the DEP merely confirmed the legal conclusions and factual findings contained in its November 1986 letter. Contrary to the conclusion of the Appellate Division, [In re CAFRA Permit No. 87-0959-5, Issued to Gateway Assocs., 290 N.J. Super. 498, 510 (App. Div. 1996)], the DEP's January 3, 1992 letter reveals that the DEP regarded the Policy as inapplicable to the proposed major modification. The letter states that the DEP requested only the "information needed to evaluate the proposed changes in the project, as we will not need to reevaluate issues resolved during the review of the original permit application." Because the DEP had resolved the issue during the review of the application for the original permit, it did not reevaluate the waiver. The DEP's January 3, 1992, letter merely confirmed that, despite the elimination of intercept parking, the conditions in the original permit, including the waiver of the Policy, would continue. Thus, the waiver of the Policy, which the ALS had not challenged after the DEP issued the original permit, remained an unreviewable condition of the original permit.
[Id. at 302-03.]
The essential facts of Gateway are strikingly similar to what occurred here. The Commission determined in 1996 to waive strict compliance with its stream corridor impact regulations for the Heritage Shopping Center project, at a time when the regulations prohibited construction of new retaining walls and permitted construction of detention or retention basins only as a conditional use.
Aware that the developer intended to further develop lot 15.02 in the future, the Commission, as a condition of its 2002 approval of the project in furtherance of its regulation to require all applicants to take whatever measures necessary, including the grant of easements, to assure preservation of stream corridors and to prevent additional encroachments "likely to occur as a result of the approval granted," N.J.A.C. 7:45-7.6 (1996), entered into an easement agreement with Pineville's predecessor defining the extent of any future encroachment. The easement describes by metes and bounds the thirty-seven acre conservation area and prohibits further development therein, with the exception of "the future stormwater detention facilities required to serve the future development of the remainder of proposed lot 15.02" as confined to an approximate one acre cross-hatched area on the incorporated map. The easement describes those future stormwater detention facilities as permitted uses not requiring "the review or approval of the Commission."
In reliance on that approval, Pineville proceeded to construct the access road and stormwater infrastructure on the supermarket parcel, lot 15.02, to service both it and Phase I of the shopping center. In 2006, after a tightening of the regulations to reduce permitted uses in the stream corridor, the Commission approved Pineville's amended site plan for both parcels, Lots 15.01 and 15.02, slightly reducing the size of the shopping center, its impervious coverage and anticipated stormwater volume and incorporating the easement. Royal did not appeal from the waiver or either of those approvals.
Instead, like the ALS in Gateway, Royal has appealed only from the 2013 approval for Phase II, in which the Commission did not re-review its 1996 waiver or the 2002 easement expressly permitting the construction of stormwater facilities in a specific location in the stream corridor, with the hope of challenging those earlier unappealed determinations. As in Gateway, Royal's appeal of those aspects of the approval comes too late because the Commission did not make a second decision to permit Pineville to site a stormwater detention facility in the stream corridor to service Lot 15.02. It merely acknowledged the validity of the 2002 easement which did so.
Royal attempts to distinguish Gateway by arguing that there the ALS challenged a "major-modification permit" and the original permit, whereas Royal's challenge is to only a new approval of Pineville's Phase II project, separate from the Commission's 2002 approval of Pineville's predecessor's project. That argument distorts both the facts and the law. Although it is certainly true that the Commission's Phase II approval is for a "new" project, that is, expansion of the shopping center, both the 2002 and the 2006 approvals encompassed the supermarket parcel, Lot 15.02, and, via incorporation of the easement, expressly permitted construction of a future stormwater detention facility as a permitted use without the necessity of review or approval by the Commission in the precise location Pineville proposed in its 2013 application. The crucial fact in Gateway, as here, is that the agency in issuing the challenged permit incorporated prior unchallenged waivers and approvals, which are, as a matter of law, beyond the reach of the objector in its timely appeal of the agency's current action.
SMB Associates v. N.J. Department of Environmental Protection, 137 N.J. 58 (1994), on which Royal relies in further support of its argument is plainly distinguishable. There DEP's prior denial of permits the objector, ALS, opposed but did not appeal, was overturned by the Coastal Area Review Board (CARB), which was authorized at that time to hear appeals from DEP's decisions. Id. at 63-64 (Garibaldi, J., dissenting). The Court agreed with ALS that the case was "atypical in that the position of the primary regulator [DEP] in the administrative hearing was at variance with that of the final review body (CARB)," and that ALS could not reasonably have foreseen that existing DEP policy would not be applied to the case under review. Id. at 61. The Court found the facts "much too unusual" to fault ALS for failing to appeal DEP decisions it supported in order to preserve its standing to challenge CARB's overturning of those decisions and permitted ALS to challenge both the permit and the waiver despite its failure to have participated in the administrative process. Ibid. No one undertaking a fair reading of the easement at issue here could be surprised that the Commission would not review the permitted placement of the stormwater detention facilities required to serve the future development of the remainder of Lot 15.02 as stated in that document and incorporated in the 2002 and 2006 approvals. No unusual circumstances exist that could justify Royal's failure to have timely appealed from the 2002 and 2006 approvals incorporating the easement it wishes to challenge now.
We further reject Royal's arguments, to the extent not time-barred, that the Commission could not waive compliance with its regulations through a "private agreement" such as the easement or thereby bind itself in perpetuity to a specific set of regulations, that it had no authority to grant "conceptual approval" of the future stormwater facilities to be constructed on Lot 15.02, and that the easement agreement granted Pineville no affirmative rights.
The conservation easement was plainly a valid exercise of the Commission's authority in 2002. The Commission has since its creation in 1974 had the ability "[t]o enter into any and all agreements or contracts, execute any and all instruments, and do and perform any and all acts or things necessary, convenient, or desirable for [its] purposes." N.J.S.A. 13:13A-12e. Further, its own regulations have for many years required that applicants for approvals grant easements or take other measures satisfactory to the Commission in order to assure that stream corridors are preserved and to prevent additional encroachments likely to occur as a result of the approval granted. See, e.g., N.J.A.C. 7:45-9.5 (2009); N.J.A.C. 7:45-7.6 (1996). In addition, the easement it entered into here could hardly be characterized as a "private agreement" of the type we disapproved in Dragon v. N.J. Department of Environmental Protection, 405 N.J. Super. 478, 494-97 (App. Div.) (reversing DEP's use of settlement process to circumvent CAFRA's substantive permitting requirements), certif. denied, 199 N.J. 517 (2009), as the easement was executed pursuant to regulation as part of the public approval process of Phase I of the shopping center in conformance with a valid and unchallenged waiver of strict compliance from the Commission's stream corridor impact regulations and recorded in the public land records.
Royal's argument that by entering the easement agreement the Commission bound itself in perpetuity to a specific set of regulations in violation of the holding in Pinelands Pres. All., supra, 436 N.J. Super. at 545 (finding DEP erred in approving permit applying regulations in effect at the time of a previous application the agency had denied) overlooks the significant fact that the Commission approved Pineville's predecessor's Phase I project, on which Pineville justifiably relied in making improvements to Lot 15.02. Pinelands has no applicability here. --------
The Commission also never issued any improper conceptual approval of the stormwater detention facility approved in Phase II of the sort disapproved in Crema v. N.J. Department of Environmental Protection, 182 N.J. Super. 445 (App. Div. 1982), aff'd as modified, 94 N.J. 286, 290 (1983). Pineville's predecessor's Phase I approval was conditioned on its executing a conservation easement that limited the location of any future construction of stormwater facilities to the cross-hatched portion of the stream corridor shown on the easement. That easement did not constitute approval of the specific design of the future facility but only its location in the stream corridor. The facility's design was subject to compliance with the Commission's current stormwater regulations in connection with the Commission's Phase II approval.
Royal's argument that the easement agreement conferred no rights on Pineville or its predecessor is belied by the clear terms of the agreement. See Rosen v. Keeler, 411 N.J. Super. 439, 451 (App. Div. 2010) ("[W]hen the intent of the parties is evident from an examination of the instrument, and the language is unambiguous, the terms of the instrument govern."). The easement expressly allows as a permitted use, "without the review or approval of the Commission," the placement of "the future stormwater detention facilities required to serve the future development of the remainder of proposed lot 15.02" in the stream corridor as shown on the incorporated map. Simply stated, the easement permitted locating the future stormwater detention facilities necessary for development of Lot 15.02 in the cross-hatched area depicted on the easement map but did not otherwise relieve Pineville of compliance with the Commission's stormwater management regulations in effect at the time Pineville applied for approval.
Finally, we reject Royal's arguments that the Commission acted unlawfully in approving Pineville's Phase II application because its proposed development failed to comply with N.J.A.C. 7:45-9.3(a)(8), prohibiting removal of native vegetation in a stream corridor "except as necessary" in connection with Commission permitted activities, and N.J.A.C. 7:45-8.4(a), requiring the incorporation of nonstructural stormwater management strategies into the project design "to the maximum extent practicable."
Pineville proposed removing nineteen trees within the cross-hatched area delineated in the easement, to be offset by the planting of thirty-three smaller trees to minimize disturbance and limit impacts necessitated by approval of the Phase II project. Commission staff evaluated Pineville's tree planting plan and its use of nonstructural stormwater management measures in Phase II. Staff found Pineville employed nonstructural measures including minimum disturbance to the property, allowing runoff to sheet flow across paved areas, low maintenance landscaping, B-inlet modified grates, onsite trash management, periodic sweeping and a recycling program and found them "adequate," concluding "the project is therefore designed in accordance with N.J.A.C. 7:45-8.4," the Commission's "maximum extent practicable" standard.
These matters are committed to the expertise of the Commission and its staff and its conclusions on such technical matters are entitled to our deference. See In re Authorization for Freshwater Wetlands Gen. Permits, 372 N.J. Super. 578, 593 (App. Div. 2004). Royal has provided no basis on which we could conclude the agency's determination on these matters was "'arbitrary, capricious or unreasonable, or that it lacked fair support in the evidence, or that it violated legislative policies' expressed or implied in the act governing the agency." In re Freshwater Wetlands Gen. Permit No. 16, 379 N.J. Super. 331, 341 (App. Div. 2005) (quoting Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)). Accordingly, we reject its arguments.
Pineville's remaining arguments, to the extent we have not addressed them, lack sufficient merit to warrant discussion in a written opinion. See R. 2:11-3(e)(1)(D), (E).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION