Agency to reconsider Highlands exemption

By Rob Jennings, Daily Record

ROCKAWAY TWP. -- The state Department of Environmental Protection wants to reconsider the Highlands law exemption it granted to Christ Church of Montclair last September -- a partial triumph for township officials who contend the exemption was unjustified.

Christ Church's exemption, one of the first granted under the Highlands Water Protection and Planning Act, is considered crucial because the act places strict limits on development in a 395,000-acre preservation zone that includes the proposed church site on Green Pond Road.

Without the exemption, the church's plans -- highlighted by a 2,512-seat sanctuary, private K-5 school, fellowship hall and recreational facilities -- would be subject to review by the Highlands Council.

Deputy Attorney General Barbara L. Conklin wrote in response to Rockaway Township's appeal of the decision in state appellate court that the DEP failed to detail its reasons for granting the exemption and that the township in its appeal of the exemption had not spelled out how the church would aversely affect potable water supplies.

"While the Department concluded … that the church's project was exempt from the development standards and permitting requirements of the Highlands Act, that decision does not recite the facts upon which the Department relied in reaching that decision," Conklin wrote.

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"An administrative agency must set forth basic findings of fact in order to inform the interested parties and any reviewing court of the basis on which the final decision rests, so that the court can determine 'whether the result is grounded in the factual record or derives from arbitrary, capricious or extra-legal considerations,'" Conklin wrote, citing legal precedents.

Another look

DEP wants to reconsider its decision, Conklin wrote, and the agency would review various changes in the mega-church building plan made after the exemption was granted.

In the meantime, the exemption would remain in effect.

Conklin also sought the dismissal of Rockaway Township's appeal.

Rockaway Township's attorney, Edward J. Buzak, could not be reached Tuesday.

DEP spokeswoman Erin Phalon declined comment.

The DEP, in granting the exemption 10 months ago, ruled that the church's building plan fell within 125 percent of the lawfully existing impervious surfaces on the 107-acre, former Agilent Technologies site -- one of more than dozen conditions for an exemption under the statute.

Building plan opponents were dismayed at how quickly the exemption was granted, in comparison to other requests involving much-smaller projects that were either rejected or delayed.

They also noted that the church later introduced changes, including a parking deck -- since withdrawn -- that were not included in its application for an exemption.

Church confident

"We're certain the exemption will remain intact," said Christ Church spokesman Marc Weinstein.

"Not only will a remand permit the Department to supply the court a complete factual record, but it also will allow the church and township the opportunity to supplement the record supporting their respective positions," Conklin wrote.

"The township only alleged the church's project would adversely impact its potable water well, but submitted no documentation whatsoever supporting the claim," she added.

"The church, for its part, appears to have plans to modify its project that require department review."

Church alterations

Christ Church has made several changes in its building plan since the exemption was granted.

Last month, for example, Christ Church reduced the total square footage of the building plan from 301,984 to 262,927; reduced the parking garage from 277 to 240 spaces and cut the K-5 school's enrollment from 500 to 350 students.

The church's attorney, Wendy Berger, said at Monday's 18th planning board hearing that the series of changes have been in response to recommendations from township officials and a new local zoning ordinance that Christ Church assailed in a federal lawsuit filed last April.

Defendants in the lawsuit are Mayor Louis Sceusi, the planning board, council and environmental commission.