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1 N.J.A.R. 454

Powell, A.C., Health Care Center v. Environmental Protection, Department of
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Citation: 1 N.J.A.R. 454
Decision Date: 1980
Agency: DEPARTMENT OF ENVIRONMENTAL PROTECTION
Synopsis: Petitioner, A.C. Powell Health Care Center, sought to construct a 120- bed nursing facility within an area designated for protection by the Coastal Area Facility Review Act, N.J.S.A. 13:19-1 et seq. By the terms of the act, any such construction must be approved by the Department of Environmental Protection (DEP). After a review of the project, the acting director of the Division of Coastal Resources indicated that a construction permit would be granted only if certain pre-conditions were met. The petitioner requested a hearing on the validity of one of those pre-conditions: the requirement of public notice to potential occupants as to 'air quality and noise conditions in the area.' This proposed condition was sought because the nursing facility was to be located opposite a glass manufacturing plant which has been the subject of a series of complaints as to air and noise pollution. After a review of the CAFRA statute, the administrative law judge concluded that DEP does not have the statutory power to impose such a condition on a facility which does not t)therwise adversely impact on the existing environment. The judge observed that the act was not designed to achieve the goal of protecting the future residents of the nursing facility. The judge reasoned that while the act may permit a total ban on placing such a facility within the protected site, it was not intended that the permit process be used as a means of reviewing the impact of the existing environment on the proposed project. Such a 'reverse impact' analysis was found not to be permitted by the act nor the cases which have dealt with similar actions under the National Environmental Protection Act, 42 U.S.C. 4331-4334 (1970). Although concluding that DEP had no statutory power to require the proposed condition, the judge felt it was appropriate to consider whether, assuming the power existed, the record would support the imposition of such a condition. The judge concluded that the preponderance of the State of New Jersey 455 evidence failed to demonstrate that there was an actual problem with the proposed facility, or that if there were, the notice requirement would rationally serve to protect the residents of the nursing facility. The judge observed that if the agency had based its belief in the need for such conditions on some unexpressed agency expertise, that expertise should have been noted for the record. Accordingly, the administrative law judge ordered the issuance of the CAFRA permit without the challenged notice provision. Michael L. Rodburg, Esq. for Petitioner (Lowenstein, Sandler, Brochin, Kohl, Fisher & Boylan, Attorneys) John M. Van Dalen, Deputy Attorney General for Respondent (John J. Degnan, Attorney General of New Jersey, Attorney)