SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4439-15T2

IN THE MATTER OF HAZARDOUS DISCHARGE SITE

REMEDIATION FUND PUBLIC ENTITY GRANT

APPLICATION FOR REMEDIAL INVESTIGATION 

AND REMEDIAL ACTION.

______________________________________________

Argued August 14, 2018 – Decided

Before Judges Messano and Geiger.

On appeal from the New Jersey Department of 

Environmental Protection.

George J. Tyler argued the cause for appellant 

Barry Rosengarten (Tyler & Carmeli, PC, 

attorneys; George J. Tyler, of counsel and on 

the briefs; James Aversano, III, on the 

briefs).

Mark S. Heinzelmann, Deputy Attorney General, 

argued the cause for respondent New Jersey 

Department of Environmental Protection 

(Gurbir S. Grewal, Attorney General, attorney; 

Melissa H. Raksa, Assistant Attorney General, 

of counsel; Mark S. Heinzelmann, on the 

brief).

PER CURIAM

Barry Rosengarten entered into a contract to sell certain 

property he owned in Perth Amboy to the County of Middlesex (the 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." 

Although it is posted on the internet, this opinion is binding only on the 

parties in the case and its use in other cases is limited. R. 1:36-3.

August 29, 2018
2 A-4439-15T2

County) for $5.15 million (the contract). Perth Amboy had 

previously designated the prior owner of the property, The Landings 

at Perth Amboy, LLC, the "redeveloper" of the property under the 

Local Redevelopment and Housing Law, N.J.S.A. 40A:12A-1 to -73. 

Rosengarten, however, warranted in the contract that he had 

successfully "de-designated" the property and was able to convey 

it for use as open space.

Environmental testing revealed contamination on the property, 

and the contract specifically required Rosengarten to remediate 

the site, as well as three additional "Areas of Concern" (AOCs) 

that were identified during "subsequent investigations." The 

County escrowed monies to be deducted from the purchase price and 

released to Rosengarten for remediation expenses he incurred. The 

County also agreed to cooperate and assist in securing grants 

through the Department of Environmental Protection (DEP) and 

Economic Development Authority (EDA), available from the Hazardous 

Discharge Site Remediation Fund (HDSRF), N.J.S.A. 58:10B-4, to 

recompense Rosengarten's remediation costs.1 The contract, 

 

1 The HDSRF is a "revolving fund" established "in the New Jersey 

Economic Development Authority" (EDA) "dedicated for the provision 

of financial assistance or grants to municipalities, counties, 

redevelopment entities authorized to exercise redevelopment powers 

pursuant to [N.J.S.A. 40A:12A-4], and persons, for the purpose of 

financing remediation activities at sites at which there is, or 

is suspected of being, a discharge of hazardous substances or 

hazardous wastes." N.J.S.A. 58:10B-4.
3 A-4439-15T2

however, provided that with respect to grant funding, the County 

had "no obligation to [Rosengarten] if" the costs were "not 

recovered or recoverable."

Rosengarten's counsel submitted a grant application on the 

County's behalf, seeking funding either as a Brownfield 

Development Area Grant, see N.J.S.A. 58:10B-6a(2)(a)(i); N.J.A.C. 

19:31-8.3(b)(6), or as a 75 % Recreation and Conservation Grant, 

see N.J.S.A. 58:10B-6a(2)(a)(ii); N.J.A.C. 19:31-8.3(b)2). DEP 

denied the application.

In his April 28, 2016 letter, DEP's Chief of the Office of 

Brownfield Reuse, Timothy Bartle, noted Rosengarten was 

responsible for remediating the AOCs and did so. Therefore, "it 

was unclear" whether the County was eligible for funding. Bartle 

noted the contract might "demonstrate . . . Rosengarten was hired 

by the County to conduct remediation on the County's behalf," but, 

despite DEP's request, no one had supplied the contract for review.

The record reveals that in fact the contract had been 

forwarded to someone else in DEP. In a subsequent email to 

Rosengarten's counsel dated May 26, 2016, Bartle acknowledged his 

review of the contract, stating:

[T]here is no language that would constitute 

a contract between [the] County and . . . 

Rosengarten to conduct remediation services on 

the County's behalf and certainly no language 

about payment to be made to . . . Rosengarten 
4 A-4439-15T2

for remediation services. . . . While my 

office can find the work appropriate and costs 

reasonable, we cannot recommend a grant to EDA 

for past work when the entity applying did not 

do the work nor pay for it. The denial of the 

application submitted by [the] County stands.2

This appeal ensued.

Rosengarten contends DEP premised its decision on 

misinterpretations of the applicable statutory provisions, 

regulations, and the contract. Therefore, denial of the 

application was arbitrary, capricious and unreasonable. DEP 

argues we should dismiss the appeal because the county has not 

appealed, and Rosengarten lacks standing to challenge the denial 

of the County's application. Alternatively, DEP contends it 

properly denied the application under N.J.S.A. 58:10B-6.

Initially, we dispense with DEP's argument that Rosengarten 

lacks standing and only the County, the grant applicant, could 

 

2 Rosengarten's notice of appeal seeks review of only the April 

28, 2016 letter. We routinely limit our consideration to only the 

judgment or order listed in the notice of appeal. R. 2:5-

1(f)(3)(A); Pressler & Verniero, Current N.J. Court Rules, cmt.

6.1 on R. 2:5-1 (2018) ("[I]t is only the judgments or orders or 

parts thereof designated in the notice of appeal which are subject 

to the appeal process and review."). Nevertheless, at oral 

argument, Rosengarten clarified the sequence of events, and 

respondent DEP has not objected to our consideration of the email 

as its statement of reasons for the final agency decision denying 

the grant.
5 A-4439-15T2

appeal its denial.3 We recently addressed a similar argument in 

New Jersey Department of Environmental Protection v. Exxon Mobil 

Corp., 453 N.J. Super. 272 (App. Div.), certif. denied, 233 N.J. 

378 (2018).

There, we recognized the right of public interest citizens' 

groups to intervene on appeal to challenge DEP's settlement of an 

action brought under the Spill Act. Id. at 301-03. In particular, 

we noted prior decisions that recognized the standing of parties 

"affected by a judgment . . . to pursue an appeal if a party with 

a similar interest who actively litigated the case in the trial

court has elected not to appeal." Id. at 297 (quoting CFG Health 

Sys., L.L.C. v. Cty. of Essex, 411 N.J. Super. 378, 385 (App. Div. 

2010)). We also recognized the right of third parties to challenge 

DEP's decisions, id. at 299-300, if they have "a sufficient 

'personal or pecuniary interest or property right adversely 

affected by the judgement.'" Id. at 301 (quoting State v. A.L., 

440 N.J. Super. 400, 418 (App. Div. 2015)).

Simply put, the record is clear that the County agreed to use 

its efforts to secure a grant to reimburse Rosengarten for 

remediation and associated costs. DEP's denial of the grant 

 

3 DEP moved to dismiss the appeal on this ground. We denied the 

motion without prejudice to DEP's right to reassert the argument 

before the merits panel.
6 A-4439-15T2

directly and adversely affected Rosengarten's pecuniary interests. 

Rosengarten has standing, and we consider the merits of his appeal.

As DEP points out, grants to public entities under the HSDRF 

are governed by N.J.S.A. 58:10B-6a(2)(a), which provides in 

relevant part:

Moneys shall be allocated to:

municipalities, counties, or redevelopment 

entities authorized to exercise redevelopment 

powers pursuant to [N.J.S.A. 40A:12A-4], for:

(i) projects in brownfield development areas 

pursuant to [N.J.S.A. 58:10B-5],

(ii) matching grants . . . of up to 75 percent 

of the costs of the remedial action for 

projects involving the redevelopment of 

contaminated property for recreation and 

conservation purposes, provided that the use 

of the property for recreation and 

conservation purposes is included in the 

comprehensive plan for the development or 

redevelopment of contaminated property

. . . .

[Ibid. (emphasis added).]

Rosengarten acknowledges that under the plain meaning of the 

statutory terms, he is not eligible for a grant.

Instead, Rosengarten argues DEP's cramped interpretation of 

the statute when applied to the facts of this case is contrary to 

the overarching public purpose of the Brownfield and Contaminated 

Site Remediation Act, of which the HDSRF is a part. See N.J.S.A. 

58:10B-4 (stating purpose of fund is to finance remediation 
7 A-4439-15T2

activities at sites where there is a discharge of hazardous 

substances or wastes); see also TAC Assocs. v. N.J. Dept. of Envtl 

Prot., 202 N.J. 533, 536-37 (2010) (explaining evolution of site 

remediation legislation and legislative history of the HDSRF).4 

He argues that the County met the eligibility requirements to 

receive grant monies from the HDSRF pursuant to N.J.S.A. 58:10B5(c) and -6(a) (allowing financial assistance to counties who, by 

resolution, "acquire [(real property)] by voluntary 

conveyance . . . for recreation . . . purposes"), and N.J.A.C. 

19:31-8.3(e) ("[p]reconditions to eligibility" for public entity 

grants).

Our standard of review of agency action is limited. In re 

Carter, 191 N.J. 474, 482 (2007) (citing Aqua Beach Condo. Ass'n 

v. Dep't of Cmty. Affairs, 186 N.J. 5, 15-16 (2006)). "An 

appellate court affords a 'strong presumption of reasonableness' 

to an administrative agency's exercise of its statutorily 

delegated responsibilities." Lavezzi v. State, 219 N.J. 163, 171 

 

4 Rosengarten cites to one of our unpublished decisions in support 

of this proposition. Not only are unpublished decisions nonprecedential, see R. 1:36-3, but also the grant at issue in that 

appeal was a so-called "innocent party grant," governed by an 

entirely different section of the HDSRF, since repealed. L. 2017, 

c. 353; see also TAC Assocs., 202 N.J. at 537 (explaining 

eligibility for grants made to "persons" under former N.J.S.A. 

58:10B-5(d) and -6(a)(4)).
8 A-4439-15T2

(2014) (quoting City of Newark v. Natural Res. Council, Dep't of 

Envtl. Prot., 82 N.J. 530, 539 (1980)). 

An agency decision should not be overturned unless there is 

"a showing that it was arbitrary, capricious or unreasonable, or 

that it lacked fair support in the evidence." Carter, 191 N.J. 

at 482.

To determine whether an agency decision "is 

arbitrary, capricious or unreasonable," an 

appellate court must determine

(1) whether the agency's action 

violates express or implied 

legislative policies, that is, did 

the agency follow the law; (2) 

whether the record contains 

substantial evidence to support the 

findings on which the agency based 

its action; and (3) whether in 

applying the legislative policies 

to the facts, the agency clearly 

erred in reaching a conclusion that 

could not reasonably have been made 

on a showing of the relevant 

factors.

[Lavezzi, 219 N.J. at 171-72 (quoting In re 

Stallworth, 208 N.J. 182, 194 (2011)).]

"[O]ur task in statutory interpretation is to discern and 

effectuate the Legislature's intent[,]" N.J. Dep't of Envtl. Prot. 

v. Huber, 213 N.J. 338, 365 (2013), and we are not "bound by [an] 

agency's interpretation of a statute or its determination of a 

strictly legal issue." Norfolk S. Ry. Co. v. Intermodal Props., 

LLC, 215 N.J. 142, 165 (2013)). Nevertheless, we "defer to an 
9 A-4439-15T2

agency's expertise and superior knowledge of a particular 

field[,]" Greenwood v. State Police Training Ctr., 127 N.J. 500, 

513 (1992), including its reasonable statutory "construction in 

recognition of the agency's expertise." TAC Assocs., 202 N.J. at 

544 (citation omitted).

We agree with DEP that the County did not qualify for the 

public entity grant because it did not perform the remediation 

work, incur the costs and expenses associated with the work, or 

otherwise designate Rosengarten as a "redeveloper" or as its agent 

responsible for remediation. Under the contract, Rosengarten was 

required to remediate the site at his own expense and undertook 

that obligation as a precondition to his ability to transfer the 

property. Rosengarten argues his decision to forego potential 

residential development of the site resulted in a financial loss, 

suggesting DEP should have considered his alleged eleemosynary 

motivation. There is nothing in the statute or its regulations 

that suggest those considerations are relevant.

Moreover, under the regulations, it would appear that the 

County was not eligible for a recreation and conservation grant. 

N.J.A.C. 19:31-8.3(b)(2) provides public entities are eligible 

for:

Matching grants of up to 75 percent of the 

costs of remedial action on contaminated real 

property to be used for recreation and 
10 A-4439-15T2

conservation purposes, provided that such use 

is included in the comprehensive plan for the 

development or redevelopment of the real 

property and a permanent restriction regarding 

development and preserving such use is 

recorded and indexed with the deed in the 

registry of deeds for the county in which the 

real property is located.

The record includes evidence that the County long ago adopted a 

plan for open space, but there is no evidence that this property 

was part of "a comprehensive plan for the development or 

redevelopment of the real property" with "a permanent restriction 

regarding development and preserving such use."

We acknowledge that under the regulations, a public entity 

may be eligible for a Brownfield Development Area Grant even if 

it does not own the property. N.J.A.C. 19:31-8.3(b)(6). However, 

"[n]o [such] grant shall be awarded unless the public entity has 

adopted a comprehensive plan for the development or redevelopment 

of contaminated, or potentially contaminated real property." 

N.J.A.C. 19:31-8.3(e)(1)(iii). This limitation is certainly 

consistent with the statutory requirement that public entity 

grants may only be made to "municipalities, counties, or 

redevelopment entities authorized to exercise redevelopment powers 

pursuant to [N.J.S.A. 40A:12A-4.]" N.J.S.A. 58:10B-6a(2)(a).

Affirmed.