CSG Law Alert: Forget the Holding, Just Follow the Court’s Advice

When the New Jersey courts issue an “unpublished opinion,” across the top of the first page is a warning. “This opinion shall not ‘constitute precedent or be binding upon any court.’”  But sometimes such opinions are ones not to be ignored by lawyers and clients dealing with certain issues.

In the Matter of Lacey Township Permit (Superior Court of New Jersey, Appellate Division, Docket No. A-3173-16T3, April 26, 2019) was an appeal by a citizens’ group seeking to overturn the issuance of an environmental permit by the New Jersey Department of Environmental Protection (“DEP”).  The permit process allows for 30 days of public comment after the submission of the application by the applicant.  The citizens’ group submitted timely comments as did a number of other interested parties.  At the end of the comment period, DEP issued a deficiency letter to the applicant.  Several months later, the applicant submitted a revised application addressing the deficiencies.  DEP then had 90 days to issue a decision on the revised application.  During those 90 days, DEP consulted with two of the commenters and the applicant to lessen the project’s impact on turtles that regularly nest in and access the project area.  The permit was approved and later notice of the permit’s approval was published.

The citizens’ group had the right to request a hearing on the permit approval within 30 days of the notice of approval.  If it had requested a hearing, it could have also requested a stay of the project’s construction.  It did neither.  The project was completed six months after the notice of the permit’s approval was issued.

It is not surprising the court denied the citizen’s group request.  Overturning a permit is difficult before New Jersey Courts and an unpublished decision on this issue normally would not merit comment.  But this case is different.

Here the court pointed out what the citizens’ group could have done differently.  Not that these actions would have affected the court’s decision but, as with having chicken soup when is ill, it could not have hurt.  The citizens’ group could have sought to confer with DEP while it was considering the deficiencies in the original permit application.  It could have requested a hearing within 30 days after notice of the permit’s issuance.  Finally, it could have sought “a stay of construction pending appeal from DEP and this court.”  It took none of these actions.

The points in the above paragraph do not fall within the court’s holding.  Instead, they are best characterized as advice to parties opposing a permit in the future.  It is this “advice” that makes this case important even if it cannot be cited as precedential.

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