NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0299-13T4
UNITED WATER NEW JERSEY, INC., APPROVED FOR PUBLICATION Plaintiff-Respondent, November 26, 2014
v. APPELLATE DIVISION
BOROUGH OF HILLSDALE, MAYOR AND COUNSEL OF THE BOROUGH OF HILLSDALE,
Defendants.
________________________________________
HILLSDALE & WESTWOOD FLOOD SOLUTION GROUP, and ANTONIO XAVIER AND WENDY XAVIER,
Intervenors-Appellants.
_________________________________________
Argued October 28, 2014 – Decided November 26, 2014
Before Judges Yannotti, Hoffman and Whipple.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L- 4634-12.
Donald S. MacLachlan argued the cause for appellants (MacLachlan Law Offices, LLC, attorneys; Mr. MacLachlan, on the briefs).
Thomas J. Herten argued the cause for respondent (Archer & Greiner, P.C., attorneys; Mr. Herten, of counsel; Andrew T. Fede, on the brief).
Lisa M. Almeida, Deputy Attorney General, argued the cause for amicus curiae State of New Jersey Department of Environmental Protection (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Almeida, on the brief).
The opinion of the court was delivered by
YANNOTTI, P.J.A.D.
Intervenors Hillsdale and Westwood Flood Solution Group
(the "HWFSG"), Antonio Xavier and Wendy Xavier (the "Xaviers")
appeal from an order of the Law Division dated August 1, 2013,
finding that the Borough of Hillsdale ("Hillsdale" or the
"Borough") was preempted by state law from applying its land use
approval requirements and other ordinances to a dam improvement
project to be undertaken by plaintiff United Water New Jersey,
Inc. ("UWNJ" or the "Company"). We affirm but remand for entry
of a modified judgment.
I.
The relevant facts are essentially undisputed. UWNJ
provides water to customers in sixty municipalities in Bergen
and Hudson Counties. To do so, UWNJ utilizes, among other
facilities, the Woodcliff Lake Reservoir, which is located in
Hillsdale and the Borough of Woodcliff Lake ("Woodcliff Lake").
One of the reservoir's structures is a dam across the Pascack
2 A-0299-13T4 Brook, which UWNJ's predecessor, Hackensack Water Company,
constructed in 1904. The dam is traversed by Church Road, a
private road owned by UWNJ that is subject to use easements held
by Hillsdale and Woodcliff Lake.
The New Jersey Department of Environmental Protection (the
"NJDEP") has classified the dam as a "Class I, High Hazard"
structure pursuant to N.J.A.C. 7:20-1.8(a)(1), because there are
"normally occupied homes in the area that are susceptible to
significant damage in the event of a dam failure." N.J.A.C.
7:20-1.8(a)(1)(i). Between 2005 and 2006, the NJDEP asked UWNJ
to undertake a study of the dam "to determine the maximum
probable precipitation and water runoff volume projected to flow
into the [Woodcliff Lake Reservoir] during future severe weather
events."
UWNJ retained engineering consultants to perform the study
and in 2007, they reported that, in the event of severe
precipitation, "excess storm related water could rise and
overtop the [d]am." The consultants recommended "doubling the
amount of impounded water passed downstream from the [dam] into
the Pascack Brook."
On December 20, 2007, the NJDEP notified UWNJ that the dam
was not in compliance with spillway capacity regulations adopted
pursuant to the Safe Dam Act (the "SDA"), N.J.S.A. 58:4-1 to
3 A-0299-13T4 -14. The NJDEP directed UWNJ to make modifications to the dam to
address this condition. UWNJ developed a plan to modify the dam,
and provided the plan to Hillsdale for informational purposes.
Thereafter, UWNJ submitted its plan to the NJDEP, accompanied by
construction drawings, details, and specifications prepared by
its professional engineers.
On November 7, 2011, the NJDEP granted UWNJ a permit,
requiring the Company to "construct an auxiliary spillway,
rehabilitate the low level outlet and rehabilitate the dikes
for" the dam. The NJDEP's permit approved the drawings prepared
by UWNJ's engineers, as well as certain technical
specifications. The permit specified the terms and conditions
for the project.
Those terms and conditions indicated that the work was at
all times subject to supervision and inspection by the NJDEP's
Bureau of Dam Safety and Flood Control (the "Bureau"); no
changes to the approved plans may be made without the Bureau's
written consent; all construction activities must be undertaken
in accordance with dam safety standards in N.J.A.C. 7:20-1.10;
construction work on lands encompassed by the permit shall be
stabilized in accordance with standards for soil erosion and
sediment control; trees or brush shall not be allowed to grow on
the dam structure; and after construction, inspection reports
4 A-0299-13T4 shall be submitted to the Bureau in accordance with the
standards in N.J.A.C. 7:20-1.11.
In addition, the permit required UWNJ to obtain a current
and valid water lowering permit from the Bureau of Freshwater
Fisheries for the manipulation of water levels of any lake or
impoundment. The permit also stated in bold typeface that it did
not give any property rights to its holder, and that it would
not be valid "until such time as all other required approvals
and permits have been obtained."
Along with the permit, John H. Moyle, P.E. ("Moyle"), the
manager of the NJDEP's Bureau of Dam Safety and Flood Control,
issued a letter. In that letter, Moyle stated that because the
dam was not in compliance with applicable safety standards, and
posed a potential hazard, construction of the dam improvements
must begin within six months.
On January 10, 2012, Hillsdale advised UWNJ that the dam
modification project required site plan approval from the
Borough's planning board. UWNJ's attorney responded with a
letter dated March 13, 2012, asserting that site plan and
conditional use approval were not required for the project. The
planning board's attorney replied in a letter dated April 2,
2012, asserting that the board had jurisdiction to review the
project.
5 A-0299-13T4 On May 1, 2012, Hillsdale adopted Ordinances No. 12-09 and
12-10. Ordinance No. 12-09 amended the tree removal provisions
of the borough's land use ordinances. Ordinance No. 12-10
revised the conditional use standards for public utilities. The
ordinance required public utilities to submit formal
applications for site plan approval of such uses.
That same day, UWNJ filed a petition with the Board of
Public Utilities (the "BPU") pursuant to the Municipal Land Use
Law ("MLUL"), specifically N.J.S.A. 40:55D-19, which provides,
among other things, that a municipal ordinance or regulation
adopted pursuant to the MLUL shall not apply to a public
utility's development in more than one municipality, if the BPU
determines that the installation "is reasonably necessary for
the service, convenience or welfare of the public."
On February 20, 2013, the BPU issued an opinion and order
on UWNJ's petition. The BPU noted that there was no dispute
requiring it to decide whether the project is reasonably
necessary for the service or convenience of the public. The BPU
noted that the NJDEP had maintained that its authority under the
SDA and the Water Supply Management Act (WSMA), N.J.S.A. 58:1A-1
to -26, completely preempted local regulation of the dam and
reservoir.
6 A-0299-13T4 The BPU accepted, without ruling on, the NJDEP's assertion
that the SDA and WSMA preempted local ordinances. The BPU noted
that the NJDEP had asserted jurisdiction over dam safety and
reliability under the SDA and it declined to consider issues
over which the NJDEP had claimed preemption. The BPU elected not
to exercise its jurisdiction pursuant to N.J.S.A. 40:55D-19, and
dismissed the petition, stating that any party could file a
petition if, in the future, an issue arises in an area in which
the NJDEP has not claimed preemption.
On June 15, 2012, UWNJ filed an action in lieu of
prerogative writs in the Law Division. UWNJ alleges, among other
things, that Hillsdale adopted and sought to enforce ordinances
that were preempted by state law, and that the NJDEP had
exclusive jurisdiction over the project. On July 26, 2012,
Hillsdale and its Mayor and Council filed an answer to the
complaint.
Thereafter, the trial court permitted the HWFSG and the
Xaviers to intervene in the action pursuant to Rule 4:33-2, but
limited their participation to the preemption issues raised in
paragraph 89 of the complaint.1 The court bifurcated the matter
1 In that paragraph, UWNJ alleged that Ordinances 12-09 and 12-10 violate substantive due process "because they seek to regulate the Dam Improvement Project when such regulation is preempted by, and exclusive jurisdiction rests with the NJDEP."
7 A-0299-13T4 and determined that it would adjudicate the preemption claims
first, with the other claims to be tried in a separate
proceeding, if necessary.
The court conducted a trial in the matter on April 23,
2014, which was limited to oral argument by counsel and
consideration of the documentary evidence presented by the
parties. Thereafter, the court filed an opinion finding that the
NJDEP has exclusive jurisdiction over the project pursuant to
the SDA and the WSMA. The court determined that Hillsdale's
ordinances are preempted by these statutes. The order that
accompanied the opinion stated that Hillsdale is "preempted from
imposing on [UWNJ] local land use approval requirements, as well
as requiring compliance with Hillsdale's soil movement and tree
removal ordinances."
On September 16, 2013, intervenors filed a notice of
appeal. The Borough has not appealed. Thereafter, we granted the
NJDEP's motion for leave to participate in the appeal as amicus
curiae.
II.
Intervenors argue that the trial court erred by finding
that Hillsdale is preempted from applying its ordinances to the
UWNJ's dam modification project. Intervenors argue that they are
not challenging the NJDEP's exclusive authority to enforce the
8 A-0299-13T4 SDA and the WSMA. They contend, however, that the fact that the
NJDEP issued a permit for the construction of modifications to
the dam does not exempt UWNJ from complying with certain local
zoning laws and other regulations.
Intervenors maintain that Hillsdale's ordinances do not
address or seek to regulate the "construction, operation,
maintenance or repairs" of the dam structure. According to
intervenors, the ordinances merely seek to require municipal
review and evaluation of the "construction, operation,
maintenance or repairs" through the municipal site plan review
process, so that certain "legitimate local concerns" may be
addressed.
Intervenors assert that UWNJ "thwarted" the early review
process contemplated by the ordinances when it refused to submit
to the required site plan review process before obtaining a
permit from the NJDEP. Intervenors maintain that the intent of
the ordinances is to address "specified local concerns" with the
public utility, so that the parties "may at least attempt to
arrive at a mutually acceptable plan which addresses the local
concerns and can then be submitted to NJDEP for review and
approval, before the permit is issued."
We note again that the trial court limited HWFSG's and the
Xaviers' intervention to the preemption issues raised in
9 A-0299-13T4 paragraph 89 of UWNJ's complaint, which pertains to the claim
that Ordinances No. 12-09 and No. 12-10 are preempted by state
law. We are convinced that the trial court correctly determined
that Hillsdale was preempted by state law from applying these
ordinances to UWNJ's dam improvement project.
The Supreme Court has identified several factors to be
considered in determining whether a municipal ordinance is
preempted by state law. Mack Paramus Co. v. Mayor & Council of
Paramus, 103 N.J. 564, 573 (1986) (citing Overlook Terrace Mgmt.
Corp. v. Rent Control Bd. of W. New York, 71 N.J. 451, 461-62
(1976)). Those factors are:
1. Does the ordinance conflict with [the] state law, either because of conflicting policies or operational effect[,] []that is, does the ordinance forbid what the Legislature has permitted . . . ?
2. Was the state law intended[] expressly or impliedly[] to be exclusive in the field?
3. Does the subject matter reflect a need for uniformity?
4. Is the state scheme so pervasive or comprehensive that it precludes coexistence of municipal regulation?
5. Does the ordinance stand []as an obstacle to the accomplishment and execution of the full purposes and objectives[] of the Legislature?
[Ibid. (quoting Overlook Terrace, supra, 71 N.J. at 461-62) (alterations in original).]
10 A-0299-13T4 The SDA prohibits the making of repairs, alterations, or
improvements to existing dams on any river or stream in New
Jersey, without the consent of the Commissioner of Environmental
Protection ("Commissioner") if the project involved will cause
the waters in the river or stream to rise more than five feet
above its mean low-water height. N.J.S.A. 58:4-1a. The SDA
requires any entity "owning and maintaining or having control
of" a dam, upon written request, to furnish the Commissioner
with a description of the dam, as well as any surveys, plans,
and drawings that might be necessary for the Commissioner to
make a determination regarding the dam's safety. N.J.S.A. 58:4-
3.
The SDA provides that owners or other persons having
control of reservoirs or dams must "[i]mplement all measures
required" by the SDA. N.J.S.A. 58:4-5a(1). The SDA also provides
that owners and others having control of a reservoir or dam must
take actions deemed necessary to bring a reservoir or dam into
compliance with SDA standards, or "any rule or regulation
adopted, or permit or order issued pursuant thereto." N.J.S.A.
58:4-5a(3).
We are convinced that, in the SDA, the Legislature
contemplated uniform regulation by the NJDEP of the design,
construction, operation and maintenance of dams and reservoirs
11 A-0299-13T4 in this State. The SDA reflects the Legislature's intention that
regulation of such matters should be uniform on a state-wide
basis. Furthermore, the State's regulatory scheme for dams and
reservoirs is pervasive and comprehensive, thereby precluding
the co-existence of municipal regulation of the sort reflected
in Hillsdale Ordinances No. 12-09 and No. 12-10.
Ordinance No. 12-09 prohibits the removal of more than
three trees from a lot in the Borough within a calendar year.
The ordinance requires that every tree removed from a flood
plain be replaced with four trees. The ordinance gives the
planning board jurisdiction to waive the requirements of the
ordinance "if the literal enforcement of one or more provisions
is impracticable or will exact [undue] hardship because of
peculiar conditions pertaining to the land in question."
Ordinance No. 12-09 directly conflicts with the regulations
adopted by the NJDEP pursuant to the SDA. Among other things,
those regulations provide that trees are not permitted on a dam
embankment unless approved by the NJDEP. N.J.A.C. 7:20-1.4(n).
Moreover, the permit issued to the NJDEP for the project
requires the removal of trees as part of the dam improvement
project. Hillsdale's tree removal ordinance stands as an
obstacle to the uniform regulation by the NJDEP of dam design,
construction, operation and maintenance of dams and reservoirs
12 A-0299-13T4 in this State. The trial court correctly determined that the
ordinance could not be applied to UWNJ's project.
The same conclusion applies to Ordinance No. 12-10, which
establishes "conditional use standards for public utilities."
The ordinance provides, among other things, that the Borough's
land use boards have authority to review, deny, or approve with
conditions, plans for any "design, redesign, construction,
repair, replacement, improvement, modification, upgrade,
rehabilitation, alteration, expansion, or addition to any
[utility development]" before construction may begin.
Ordinance No. 12-10 conflicts with the NJDEP's exclusive
authority to regulate dam design, construction, operation, and
maintenance under the SDA. The regulations adopted by the NJDEP
pursuant to the SDA require the owner or those in control of a
dam to obtain a permit for modifications to the dam. The permit
application must address the design, structure, stability,
elevations, spillway and overflow details, the project schedule
and other technical matters. N.J.A.C. 7:20-1.7(b) to (e).
Furthermore, as indicated by the permit that the NJDEP
issued for the project, the improvements must be undertaken in
accordance with the approved plans and specifications. Moreover,
due to the danger presented by the dam's condition, the NJDEP
required UWNJ to begin making the improvements within six months
13 A-0299-13T4 after the permit was issued. The trial court correctly
determined that the ordinance requiring UWNJ to obtain site plan
approval from the Borough's planning board conflicts with the
NJDEP's pervasive regulation in this area under the SDA.
Intervenors argue that Ordinance No. 12-10 addresses
matters that fall outside the purview of the NJDEP's exclusive
regulation of dam construction, operation, maintenance and
repair. Intervenors point to certain conditions imposed by the
ordinance, which they say pertain solely to matters of local
concern. We are convinced, however, that requiring UWNJ to
secure site plan approval pursuant to Ordinance No. 12-10, and
compliance with the requirements imposed by that ordinance,
would substantially undercut the NJDEP's pervasive regulation
under the SDA by superimposing local site plan review upon the
NJDEP's permitting process.
The ordinance empowers the Borough's local planning board
to impose conditions in addition to those required by the NJDEP,
and to deny approval of the project unless those conditions are
met. The exercise of such regulatory authority cannot coexist
with the exclusive authority conferred upon the NJDEP in the
SDA. Moreover, local review of the modifications could delay
construction that the NJDEP directed UWNJ to begin promptly.
14 A-0299-13T4 Intervenors further argue that the NJDEP could, in the
exercise of its regulatory authority, override conditions
imposed by the Borough pursuant to the ordinance. However, the
ordinance does not provide for the NJDEP's review of any local
planning board action. By its terms, the ordinance allows the
local board to delay or disapprove a dam improvement project
unless it meets the conditions imposed therein.
In addition, Ordinance No. 12-10 provides for local
oversight of the impact a dam improvement project might have on
the Borough's management of its stormwaters. This provision of
the ordinance conflicts with the NJDEP's authority under the
WSMA. Under the WSMA, the NJDEP has the exclusive authority to
"control, conserve, and manage the water supply of the State and
the diversions of that water supply." N.J.S.A. 58:1A-5.
The NJDEP has adopted comprehensive regulations governing
the water supply, which include a detailed application process
for water supply allocation or diversion in the public interest.
See, e.g., N.J.A.C. 7:19-2.2(a) to (f). Decisions as to the
allocation and diversion of water from the dam are conferred
upon the NJDEP by the WSMA, and the NJDEP's pervasive authority
in this area precludes local regulation of the sort contemplated
by Ordinance No. 12-10.
15 A-0299-13T4 In support of their arguments, intervenors rely upon
Shupack v. Manasquan River Reg'l Sewerage Auth., 194 N.J. Super.
199 (App. Div. 1984). There, the Regional Sewerage Authority
(the "Authority") obtained approval of the NJDEP and the federal
Environmental Protection Agency to construct a sewerage pumping
station. Id. at 201. The Township of Howell (the "Township") and
its construction official maintained that the Authority was
required to obtain site plan approval for the project under the
Township's land use ordinance, as well as a construction permit
pursuant to the State Uniform Construction Code (the "UCC"). Id.
at 202.
In response, the Authority argued that construction of the
pumping station was governed by the Water Pollution Control Act
("WPCA"), N.J.S.A. 58:10A-1 to -69, and the Sewerage Authorities
Law ("SAL"), N.J.S.A. 40:14A-1 to -45, which exempted it from
compliance with the local permit and approval requirements. Id.
at 203. We held that the Authority was required to obtain site
plan approval from the local planning board, and construction
permits pursuant to the UCC. Id. at 204-05.
We noted that neither the WPCA nor the SAL was
"particularly concerned with the construction aspect of the
facilities nor with aesthetic considerations in the sense that
such matters are regulated by permits issued under the [UCC] or
16 A-0299-13T4 site plan approval ordinances." Id. at 204. We concluded that
the Township's plan approval ordinance was not preempted by the
WPCA or the SAL. Id. at 205. We also saw no inconsistency
between those laws and the requirement that the Authority obtain
a building permit for the project. Ibid.
We said, however, that our opinion should not be read to
approve "any procedure relating to site plan approval or
building permits that would interfere with the purposes of the
project as authorized by the [WPCA] or the [SAL]." Ibid. We
noted that the Township and its construction official had not
taken the position that the municipality had the power "to
prohibit by zoning proscription the construction of the
[project], including the building for which it is claimed site
plan approval and construction permits should have been issued."
Ibid. (internal quotation marks omitted).
In our view, intervenors' reliance upon Shupack is
misplaced. Here, the Borough's ordinance confers upon the local
planning board the power to deny site plan approval if the
project does not meet the specified conditions, even though
those conditions have not been imposed by the NJDEP through its
permitting process. The ordinance is concerned with matters over
which the NJDEP has exclusive authority under the SDA and the
WSMA, and it essentially allows the municipality to prohibit by
17 A-0299-13T4 zoning proscription the construction of the project. Thus,
Shupack is not inconsistent with our conclusion that the
Borough's site plan approval ordinance is preempted.
Intervenors also rely upon Morris Cnty. Fair Hous. Council
v. Boonton Twp., 228 N.J. Super. 635 (Law Div. 1988), aff'd, 230
N.J. Super. 345 (App. Div. 1989). In that case, the municipality
agreed to change its zoning regulations to allow the
construction of a number of units of lower income housing. Id.
at 638-39. In furtherance of this agreement, the municipality
rezoned certain properties, and the intervenors sought site plan
approval for a development. Id. at 639. The plans provided that
stormwater would be directed to a reservoir and then released to
downstream properties. Ibid.
The local planning board denied site plan approval, finding
among other things, that the proposal did not include an
adequate stormwater management plan. Id. at 639-40. The board
noted that the reservoir included a dam, which was in need of
repairs and/or modification. Id. at 640. The trial court upheld
that decision, noting that site plan approval was subject to
improvements to the dam and reservoir. Id. at 645-46. The trial
court stated that the repairs or modifications to the dam and
reservoir were subject to the approval by the NJDEP. Id. at 646.
The court held that the planning board did not act arbitrarily,
18 A-0299-13T4 capriciously or unreasonably in denying site plan approval
because it could not determine whether the applicants'
stormwater management plan was adequate until the NJDEP acted.
Id. at 646.
The Morris County case does not support intervenors'
position in this case. As we have explained, in Morris County,
the court emphasized that the NJDEP had exclusive authority to
decide what modifications had to be made to the reservoir and
dam. The court did not suggest that a local planning board could
impose conditions upon a dam improvement project, as part of the
site plan approval process, in addition to those imposed by the
NJDEP in its permit approving the project.
III.
Intervenors also contend that the trial court failed to
provide adequate findings of fact to support its decision. We do
not agree. Here, the court's decision was based on the
undisputed facts concerning the project and the terms of
Ordinances No. 12-09 and No. 12-10. The court determined, as a
matter of law, that the Borough was preempted from applying
these ordinances to the project. The court's findings of fact
were sufficient to support its determination.
Intervenors further argue that the trial court did not
address the following issues: (1) whether issuance by the NJDEP
19 A-0299-13T4 of a dam construction permit precludes local land use regulation
of the sort reflected in the conditional use ordinance; (2)
whether the NJDEP's permit effectively exempts UWNJ from
complying with local zoning or other law "wherever and
whenever"; and (3) whether the permit makes the Borough's Church
Road easement null and void, thereby taking property rights away
from the Borough and unilaterally granting those rights to the
NJDEP or UWNJ.
The trial court's opinion makes clear, however, that the
NJDEP's regulatory authority over dam construction and safety
under the SDA, and its exclusive authority to regulate the water
supply under the WSMA preclude application of the Borough's
conditional use and tree removal ordinances to the project.
Moreover, the court's decision was limited to the issue of
preemption presented in the complaint and did not address the
question of whether UWNJ is exempt from local zoning and other
laws "wherever and whenever."
Furthermore, the court's decision does not address the
effect the project might have on the Borough's easement rights
to the Church Road. That issue was not raised in the complaint
and it was beyond the limits imposed on intervenors'
participation in the case.
20 A-0299-13T4 Intervenors additionally argue that, in the permit for the
project, the NJDEP acknowledged that the Borough could exercise
regulatory authority over the project as to matters of local
concern. The permit states in pertinent part:
This permit DOES NOT GIVE ANY PROPERTY RIGHTS, in either real or personal property or material, nor any exclusive privileges; neither does it authorize any injury to private property, nor invasion of private rights, nor any infringement of Federal, State or local laws or regulations; nor does it waive the obtaining of Federal or other State or local government consent when necessary. THIS PERMIT IS NOT VALID AND NO WORK SHALL BE UNDERTAKEN UNTIL SUCH TIME AS ALL OTHER REQUIRED APPROVALS AND PERMITS HAVE BEEN OBTAINED.
Intervenors contend that the permit requires UWNJ to obtain
local approval for the project, and that the permit is not valid
until such approval is obtained. Intervenors also assert that
the permit mandates that "the right of Hillsdale pursuant to the
grant of easement from [plaintiff] to 'supervise and control'
Church Road, the roadway which passes upon the top of the Dam,
must stand intact." Again, we disagree.
As the trial court observed, the above-quoted language
merely is intended to ensure that UWNJ obtains all necessary
permits and consents. The court also noted that UWNJ had
conceded that the language in the permit quoted above applies to
necessary NJDEP wetlands or fish and wildlife permits. The court
21 A-0299-13T4 correctly found that the NJDEP's permit does not recognize local
regulation of the project of the sort reflected in Ordinances
No. 12-09 and No. 12-10.
The other arguments raised by intervenors are without
sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).
We therefore conclude that the trial court correctly
determined that the Borough may not apply Ordinances No. 12-09
and No. 12-10 to the UWNJ's dam improvement project.
We note, however, that the court's order goes beyond the
scope of the issues raised in the pleadings. As we stated
previously, the order provides that Hillsdale is "preempted from
imposing on [UWNJ] local land use approval requirements, as well
as requiring compliance with [its] soil movement and tree
removal ordinances." The pleadings made no mention of the soil
movement ordinance, and the litigation was limited to whether
Ordinances No. 12-09 and No. 12-10 are preempted by state law.
The judgment should be modified accordingly, and the ruling
limited to the two ordinances referenced in paragraph 89 of the
complaint. The order should state that the Borough is precluded
from applying those ordinances to the UWNJ's Woodcliff Lake dam
improvement project. We therefore affirm and remand the matter
to the trial court for entry of an order modifying the judgment
to state that the Borough is preempted by the SDA and the WSMA
22 A-0299-13T4 from applying Ordinances No. 12-09 and No. 12-10 to UWNJ's
Woodcliff Lake dam improvement project.
Affirmed and remanded for entry of a modified judgment in
accordance with this opinion.
23 A-0299-13T4