October 9, 2008
Xanadu Permits Under Fire ; Sierra Club Maintains Court Exceeded Bounds
By JOHN BRENNAN, STAFF WRITER
The Sierra Club moved forward Tuesday on a pair of Xanadu- related court cases, continuing a four-year battle over state permits issued for the sprawling Meadowlands project.
In a brief, the state chapter of the environmental group asked an appellate panel to reconsider part of a Sept. 17 decision upholding 2004 state approvals allowing 8 acres of wetlands to be included within the Xanadu development site.
The Sierra Club has maintained for years that the state Department of Environmental Protection illegally issued those permits.
State regulations usually bar development on wetlands unless the proposed project is "water-dependent." DEP officials concluded that the Xanadu entertainment and retail plan does not fit that criterion, and also deemed the affected wetlands a "waterway."
Sierra Club lawyer Edward Lloyd argued that, based on those two conclusions, the permits should not have been issued.
In 2007, Xanadu lawyers argued that the wetlands stretch known as Cedar Creek does not qualify as a waterway.
The Sierra Club pointed out that even though the DEP issued the permits, it has never changed its stance that the creek should be considered a waterway.
In its recent ruling, the Appellate Division -- saying the case was one of "public importance" -- made its own determination that the creek does not qualify as a waterway.
Lloyd maintains that the court overstepped its bounds by ignoring the DEP's decision.
"Instead of relying on DEP as a source of information for the interpretation of its own regulations, the Court impermissibly substituted its own interpretation for that of the agency," Lloyd wrote.
The Sierra Club is also disputing another recent state appellate court finding that its challenge to the Xanadu permitting is more appropriately taken up with the project's landlord, the New Jersey Sports and Exposition Authority, than with the DEP and the state Meadowlands Commission.
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