Recently, the appellate division reminded DEP that it has to follow the law. In Dragon v. NJDEP, the NJ Appellate Division reversed the DEP’s authorization of development in the CAFRA zone without issuing a permit.
The case arose because a property owner wanted to demolish their existing home and build a new larger one next to the beach of Brigantine. The original proposed expansion would have expanded their home from 1944 to 3480 square feet and brought the house nine feet closer to the beach. The homeowner applied twice for a general permit which was denied because they did not meet the requirements of the general permit on either occasion. On both applications, one of the homeowner’s neighbors objected to the applications.
The homeowners appealed the denial and the matter was referred to DEP’s office of dispute resolution. During the dispute resolution process the DEP and the homeowners reached a compromise. This settlement was reduced to a written “Mediation & Settlement Agreement in lieu of a permit.” The neighbor objected to the settlement and challenged it. The DEP rejected the challenge and issued the homeowners a “Letter of Authorization” (LOA) allowing the reconstruction of the house, but even bigger than what the homeowners requested and without any set back from the bulkhead along the beach. This LOA specifically provided that it was instead of a coastal general permit under the Coastal Zone Management rules.
The objecting neighbors appealed the issuance of the LOA alleging that the Coastal Area Facility Act (CAFRA) and its implementing rules did not allow the DEP to settle a case by authorizing development without the applicant meeting the requirements of and receiving a permit. The DEP countered it had the authority “deviate from strict compliance with its own regulations in order to avoid ‘litigation risks’ and to prevent” a possible adverse legal ruling.
The Appellate division ruled that CAFRA did not give the DEP authority to waive the substantive requirements of the statute or it’s implementing regulations. (DEP could have the authority to wave procedural requirements.) Because CAFRA was designed to balance the completing interests of protecting, repairing and enhancing the environment with encouraging compatible land use it was important that any development be either by permit or within one of CAFRA’s exemptions. DEP could not in the spirit of settlement avoid the need to issue a permit. If the DEP wanted authority to issue settlement agreements without issuing a permit or to waive substantive requirements, it must gain that authority from the legislature. In short, DEP cannot give itself more power than what the law permitted.