Borough of Kenilworth v. Department of Transportation

(376 A.2d 1266, 151 N.J. Super. 322) (N.J. Super. Ct. App. Div. July 7, 1977)

ELR Digest

Plaintiff brought this action pursuant to the Environmental Rights Act, N.J.S.A. 2A:35A-1 et seq., seeking injunctive relief against the widening of the Garden State Parkway. The principal allegations were that defendants had failed to obtain a stream encroachment permit, were destroying trees which would result in increased noise pollution and surface water runoff, and had failed to use reasonable methods to control rodents. The Chancery Division restrained construction in the vicinity of the stream and remitted the case to the Department of Environmental Protection.

Plaintiff raises for the first time on appeal the additional claim that the Environmental Rights Act, N.J.S.A. 2A:35A-4(a) and (b), authorizes it to seek enforcement of Executive Order No. 53 which requires state agencies to file environmental impact statements with the Department of Environmental Protection for certain major constructin projects. The widening project at issue in this case is to be funded with 70 percent federal and 30 percent state monies. The federal Department of Transportation has approved the project as a nonmajor federal action for which no environmental impact statement or negative declaration is required under § 102(2)(C) of the National Environmental Policy Act, 42 U.S.C. § 4332(2)(C).

Paragraph 7 of Executive Order No. 53 provides that the Order shall not apply to projects which are "reviewed pursuant to the National Environmental Policy Act." The court concludes that the project in this case has been so reviewed, even though no EIS or negative declaration was prepared. The Federal Highway Administration's determination, pursuant to 23 C.F.R. § 771.9, that the project was to be classified as "nonmajor" federal action was itself a significant review under NEPA which serves to distinguish this case from S. Brunswick Tp. v. N.J. Turnpike Authority, 129 N.J. Super. 126, 322 A.2d 478 (App. Div.), cert. denied, 66 N.J. 334, 331 A.2d 34 (1974).

The court also rejects plaintiff's claims of increased air and noise pollution, additional drainage problems, and rodent infestation. The lower court's order restraining construction in the immediate vicinity of the stream and remitting the case to the Department of Environmental Protection is reversed and remanded with directions that the complaint be dismissed.

The full text of this opinion is available from ELR (7 pp. $1.00, ELR Order No. C-1146).

Counsel for Plaintiff-Respondent
Aldan O. Markson
512 Boulevard, Kenilworth NJ 07033
(201) 272-3366

Counsel for Defendant-Appellant
Richard L. Rudin, Deputy Attorney General
Department of Law & Public Safety
State House Annex, Trenton NJ 08625
(609) 292-4925

per curiam Lora, Crane & Michels, JJ.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]