TOWNSHIP OF WASHINGTON—When is a regulated waterway no longer a regulated waterway?
That’s the question Meisten Street resident Michael Agnello posed to local officials and the answer appears to depend on who you talk to.
What happened to an easement that restricted the use of his backyard property for 40-plus years? Much to Agnello’s surprise, local officials told him recently that no such easement exists and that the waterway that runs behind his home is no longer a regulated waterway, if it ever was.
He heard the news from Township Administrator Mark C. DiCarlo at the Feb. 6 Council meeting. And DiCarlo promised then to visit Agnello’s property with the township engineer and additional proof backing up the non-regulated status of the waterway behind his property.
Moreover, DiCarlo told Agnello that “the best research” of engineers from Boswell were able to do on his property found that “there was no easement” on his property from the stream, even though their property surveys may show an easement.
The question of whether the unnamed tributary is a regulated waterway, or possibly a protected “C1” or higher-quality Category One waterway, may also play a role in the ongoing Zoning Board of Adjustment hearings on a 17,000-square-foot-plus strip mall proposed by 660 Pascack Realty LLC for five lots at 660–682 Pascack Road, and adjoin the non-regulated waterway.
Agnello, of 667 Meisten, said that he had been told by county officials that the stream shows up on county maps listed as a ditch for the intersection improvement project.
He said he had no prior notice that the stream was not a stream or that it was no longer regulated under state law.
Agnello said a little over a decade ago he was told the waterway was still a state-regulated waterway, and he could not fill in any of his property near it as that might restrict the flow of the waterway.
He said he was told this when a prior application was made by the property owners — Seasons Catering — to construct a CVS convenience store on five lots at 660–682 Pascack Road.
That proposal was defeated about a decade ago. A new proposal by 660 Pascack Realty LLC (i.e. Seasons Catering) to construct a “neighborhood shopping plaza” on the nearby site with two commercial buildings and over 17,000 square feet of retail and commercial space, plus up to 11 businesses, is currently pending before the Zoning Board of Adjustment.
Agnello, and his Meisten Street neighbors, have opposed the proposed new retail shopping plaza. Nearby Northgate Condominium Association residents have also opposed the strip mall.
The 660 Pascack Realty LLC application seeks a use variance to build commercial space in a single-family zone, plus other variances and waivers. Its fifth hearing is Feb. 28 before the Zoning Board.
Drainage basin now 48.2 acres
Now, Agnello questions how that same waterway behind his home — a tributary of the Musquapsink Brook — that used to drain water from about 55 acres now only drains from 48.2 acres, as approved in the state Department of Environmental Protection letter.
The letter indicates NJDEP approval of the new drainage basin dimensions and is included as part of 660 Pascack Realty’s proposal for its “4 Seasons Marketplace” mall.
From comments made by officials, and Meisten Street residents, the letter’s existence seemed to catch many by surprise.
The Jan. 30, 2020 NJDEP letter says is that based on the DEP’s “review of a drawing dated Oct. 20, 2018, unrevised 660 Pascack Road Parking Lot Block 2110, Lots 6-10, 660-682 Pascack Road Township of Washington County Of Bergen, New Jersey Site Plan for NJDEP FHA AD” Sheet No. AD-1 “indicates a Flood Hazard Area Permit is not required.”
Pascack Press requested a copy of the drawing cited by the letter for NJDEP’s review. It did not arrive by press time.
Under Reason for Decision, the NJDEP letter states: “The stream has a drainage area of less than 50 (48.2) acres. This was confirmed with Najarian Associates using LIDAR data and a field investigation. The water feature does not have a riparian zone associated with it,” the letter notes.
Generally, riparian zones, or restricted zones between land and the waterway, are used to protect the waterway from polluted runoff from paved surfaces.
The NJDEP letter was mailed to engineer Calisto Bertin, the current applicant engineer on the 4 Seasons Marketplace proposal, “in response to your letter received on Jan. 9, 2020 concerning a proposed parking lot along an unnamed tributary to the Musquapsink Brook within Lot Nos. 6-10 of Block No. 2110, in Washington Township, Bergen County.”
However, hydrographic maps prepared by Bertin Engineering. (available on the Zoning Board website under 4 Seasons Town Square application documents) currently depict a “stream” going under Washington Avenue from behind the Meisten Street properties.
(The proposed retail project is referred to as “4 Seasons Marketplace” and “Four Seasons Town Square” in application documents.)
The map also shows areas behind the Meisten Street properties — including Agnello’s property — that lie adjacent to the stream as a “floodway” and as part of a “flood hazard area” slightly further away from the stream.
Agnello wrote a letter to local officials (sent to Pascack Press) in mid-December asking why his property survey shows a 200-foot easement on the unnamed waterway behind his home and said he had been told for 40-plus years that NJDEP “controls any changes made within 200 feet of that easement.”
“I asked to be explained exactly how and what had changed that the DEP no longer governs the waterway. I am under the understanding that the drainage area was changed … to now what is calculated as 48 acres. That’s a parcel of land that no longer exists. Where did it go? Where is that water?” Agnello said.
He also charged that the properties’ land elevation behind the five lots at 660–682 Pascack Road had been raised by prior spreading of soil around behind them.
Officials have previously said this did not occur but recent soil spreading has occurred near the front, side and rear of 664 Pascack Road’s property due to ongoing county intersection upgrades.
Township attorney Kenneth Poller suggested that a property title search would quickly resolve the question of whether an easement ever existed on Agnello’s property.
He said officials or Agnello should check if the easement was listed on a tax map, or a plat, suggesting there “had to be some documentation” of an easement.
Agnello also said that he believed around 15 years ago, a prior administration had applied to NJDEP to have the stream behind his home converted to a “C1” or Category One waterway.
Poller suggested that it may have been the former township engineer who applied for such designation, noting he did not recall taking any such action.
Councilman Thomas Sears also wondered how someone might be able to change a waterway’s designation if Agnello’s claims about the “C1” waterway were correct.
Whether a “C1” designation was applied for — or was granted by NJDEP — was being looked into by DiCarlo, upon councilwoman Desserie Morgan’s request.
According to DEP’s website, “Category One waters are high-quality waters designated through rulemaking for protection from measurable changes in water quality because of their exceptional ecological significance, exceptional water supply significance, exceptional recreational significance, and exceptional fisheries significance to protect and maintain their water quality, aesthetic value, and ecological integrity.”
Efforts to find the status of the tributary behind the Pascack Road properties by contacting NJDEP were not returned by press time.