TAC Associates v. New Jersey Department of Environmental Protection

JUSTICE RIVERA-SOTO,

dissenting.

The judgment of the Appellate Division should be affirmed substantially for the unassailable reasoning well-expressed by Judge Fuentes, TAC Assocs. v. N.J. Dep’t of Envtl. Prot., 408 N.J.Super. 117, 973 A.2d 969 (App.Div.2009). Therefore, I respectfully dissent. I add only the following, focusing on events arising after the filing of that opinion that underscore its correctness.

Plaintiff TAC Associates did not sell the property at issue in this ease until 2003. At the time, neither the enabling statute, N.J.S.A. 58:10B-6(a)(4), nor the then extant regulations, N.J.A.C. 19:31-8.2, required that, as a condition precedent to eligibility, the applicant for an “innocent person” grant continue to own the realty on which the grant application was based. The regulation was not changed until October 2006; in defendants’ own words, the regulation was changed so that “[t]he definition of ‘innocent person’ is amended to reflect that the person must continue to own the real property until final grant approval is given by the [Economic Development] Authority!.]” 38 N.J.R. 3001(a) (July 17, 2006). However, the statute under which the regulation was issued had not changed and pointedly did not include the continuing ownership requirement that the 2006 regulatory amendment imposed.

Plaintiff made its application for an “innocent person” grant in June 2008; at that time, the regulations contained a condition precedent—the continuing ownership requirement—that glaringly was absent from the enabling statute. In September 2008, plain*547tiffs application for an “innocent person” grant was denied purportedly based on plaintiffs failure to satisfy the regulatory, but not statutory, continuing ownership requirement. Plaintiff appealed that denial and, on July 1, 2009, the Appellate Division held that “the regulatory criteria in N.J.A.C. 19:31-8.2 excludes a class of individuals envisioned by the Legislature as eligible to apply for an [“innocent person” grant, and s]uch clear inconsistency between regulation and statute compels that we invalidate the regulation as ultra vires.” TAC Assocs., supra, 408 N.J.Super, at 123, 973 A.2d 969 (citing In re Freshwater Wetlands Prot. Act Rules, 180 N.J. 478, 488-89, 852 A.2d 1083 (2004)).

Defendants sought certification before this Court on August 31, 2009, which was granted on December 14, 2009. TAC Assocs. v. N.J. Dep’t of Envtl. Prot., 200 N.J. 549, 985 A.2d 647 (2009). It was not until more than one month later, on January 17, 2010, that the Legislature at long last conformed its statute to the regulatory language adopted in 2006. See L. 2009, c. 303, § 1 (eff. Jan. 17, 2010).

The Appellate Division correctly “recognize[d] that both sides here have advanced strong public policy arguments in support of their respective positions.” TAC Assocs., supra, 408 N.J.Super, at 124, 973 A.2d 969. It further explained that “public policy arguments in favor or against a ‘continuing ownership’ requirement to an [“innocent person” grant] are better suited for a legislative forum than an appellate courtroom.” Ibid. In those circumstances, it view'ed its charter both properly and with due modesty: “Our role is to enforce the will of the Legislature. Given the clear inconsistency between the statutory and regulatory criteria presented here, we are compelled to invalidate the regulation. Statutes cannot be amended by administrative fiat.” Ibid. It therefore held that “the definition of ‘innocent party’ in N.J.A.C. 19:31-8.2 is inconsistent with the statutory definition in N.J.S.A. 58:10B-6(b)(4)[ and] deelare[d] N.J.AC. 19:31-8.2 ultra vires and invalid.” Ibid.

The unvarnished and ugly truth is that, recognizing their error, defendants scurried—four years after the fact, six and one-half *548months after their position had been rebuffed by the Appellate Division, and while this appeal was pending before this Court—to have the Legislature ratify rules defendants adopted that plainly exceeded the original statutory mandate. That fact alone demonstrates conclusively that defendants’ actions in 2006 in adopting the “continuing ownership” requirement unlawfully exceeded that which the statute itself required; to conclude differently would render the Legislature’s January 2010 amendatory language mere surplusage. Against that backdrop, to demand that plaintiff comply with a requirement that on its face was unlawful at the time plaintiff made its otherwise proper application borders on the Kafkaesque. Because the proper yardstick against which plaintiffs application should be gauged is the statute at the time the application was made, the “continuing ownership” requirement held no relevance here and cannot, by the wave of a judicial wand, be retrofitted once plaintiffs rights vested.1

I respectfully dissent.

For reversal and reinstatement—Chief Justice RABNER and Justices LONG, LaVECCHIA, ALBIN, WALLACE and HOENS—6.

For affirmance—Justice RIVERA-SOTO—1.

The majority accuses both the Appellate Division and this dissent of "completely missfing] the ownership language in N.J.S.A. 58:10B-6” and of "failpng] to consider that plain statutory provision.” Ante at 543 n. 6, 998 A.2d at 456 n. 6. It is ironic that it is the majority’s myopia that ends up begging the question presented: if the statute as enacted in 1993 meant what the majority today says it means, then why, pray tell, did the agency charged with its implementation— an entity to which we defer as "administrative agency interpretations of [an enabling statute] must be given substantial weight in an interpretive calculus[,]” Klumb v. Bd. of Educ. of Manalapan-Englishtown Reg'l High Sch. Dist., 199 N.J. 14, 29, 970 A.2d 354 (2009)—see the need thirteen years later, in 2006, to amend its own regulations to add a qualification requirement that was not made part of the statute until four years after that? In short, that is the point ignored here, one that the majority chooses to gloss over and that lies at the core of this dissent.