NOT FOR PUBLICATION WITHOUT THE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.,

Plaintiff-Respondent,

v.

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

Before Judges Yannotti, Hoffman and Whipple.

On appeal from Superior Court of New Jersey, 

Law Division, Bergen County, Docket No. L4634-12.

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., 

APPROVED FOR PUBLICATION

November 26, 2014

APPELLATE DIVISION

November 26, 2014
2 A-0299-13T4

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 
3 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 
4 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 
5 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. 
6 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. 
7 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." 
8 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 
9 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 
10 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).]
11 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
12 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 
13 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 
14 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.
15 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. 
16 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 
17 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 
18 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, 
19 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 
20 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.
21 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 
22 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 
23 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.