                NOT FOR PUBLICATION WITHOUT THE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.




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