United Water New Jersey, Inc. v. Borough of Hillsdale

NOT FOR PUBLICATION WITHOUT THE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