DEP reverses earlier decisions to deny construction permits; court upholds agency, frustrating ‘greens’ who argued against project
A state appeals court yesterday tossed out a suit brought by conservationists who sought to block the construction of a nearly two-mile road on portions of a popular biking and walking trail near the Pinelands National Reserve.
In a unanimous decision, the three-judge panel found that the state Department of Environmental Protection, which previously had twice denied permits for the project, acted within its authority in granting approval for a slightly revamped version.
The project had been opposed by four conservation organizations, which had argued in court that the state agency had failed to justify its reversal on the proposal and neglected to recognize the trail as public open space. The court rejected those assertions in a 43-page unpublished decision.
The 1.9-mile bypass road, designed to ease congestion on the busy Route 9, has been under consideration for the past decade. The road runs along an abandoned rail line, once operated by the Central Jersey Railroad, and now used as a recreational trail.
Like this? Use form in upper right to receive free updatesThe trail winds its way through pine and oak forests with indirect access to many parks and recreation areas, including the Forked River Game Farm and Double Trouble State Park.
In its decision, the court essentially bowed to the expertise of the state agency in deciding to grant a Coastal Area Facility Review for the project, noting the DEP had insisted on a number of adjustments in the route of the project.
“We accord deference to a final agency action, and will not substitute our judgment for the expertise of an agency so long as that action is statutorily authorized and not otherwise defective because arbitrary or unreasonable (or not supported by the record),” the court said.
As for whether the land was designated for open space, the court noted that the DEP, in granting the permit, concluded the land was not public open space after finding it was purchased by Lacey Township “for the purpose of construction of the road project’’ and was not “dedicated for conservation, public recreation, public access, or wildlife protection.’’
The case is the latest in which environmental groups are challenging decisions they believe are undercutting protections to safeguard the Pinelands, a 1-million-acre expanse of pine forests set aside for preservation four decades ago. Yesterday, the Pinelands Preservation Alliance announced it was going back to court to try and prevent construction of a 22-mile pipeline, 10 miles of which would traverse the forested area of the preserve.
“What we’ve seen with Gov. (Chris) Christie, it’s been death by a thousand cuts. It’s a roadway here, a pipeline there, and just one thing after another,’’ said Jeff Tittel, director of the New Jersey Sierra Club, one of the organizations involved in the Lacey lawsuit. Lacey Rail Trail Environmental Committee; Save Barnegat Bay; and the American Littoral Society were the other appellants in the lawsuit.
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