Archive for the ‘Courts’ Category

DEP cannot ignore the requirments of the law

Written by Mike Pisauro on March 28th, 2009 in Courts, land use, Ocean | No Comments »

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.

Court allows Threatened Species to exist

Written by Mike Pisauro on December 11th, 2008 in Courts, Endangered Species, Wetlands | No Comments »

In mid-November the Appellate Division handed to DEP a win by finding that the barred owl could be threatened.  In ZRB, LLC. v. NJ Dept. of Environmental Prot., A-6046-06T3, ZRB sought to fill in wetlands under general permit #6.  Under general permit #6, a permittee can fill in limited amounts of freshwater wetlands as long as the freshwater wetlands are not classified as an exceptional resource.  Freshwater wetlands are classified as exceptional, intermediate, or ordinary.

The applicant alleged the wetlands were of intermediate value and could be filled while the DEP alleged because of the property was of exceptional value.  DEP claimed the property was of exceptional value because it was suitable habitat for the barred owl.  In NJ the barred owl is considered to be a threaten species under N.J. Endangered and Non-game Species Act.  While the case is interesting for several reasons, the aspect I am going focus on is whether DEP is authorized to list a species as threatened.

In 1973 both New Jersey and the Federal government enacted endangered species laws.  Under the Federal ESA an “endangered species” is defined:

any species which is in danger of extinction throughout all or a significant portion of its range  . . .  16 U.S.C. 1532(6).

The Federal ESA has a separate definition for “threatened species” and provides a different level of protections.  Under the Federal ESA, “threatened species” are defined as:

any species which is likely to become an endangered species within the foreseeable future throughout all or a signification portion of its range.  16 U.S.C. 1532(20).

The Applicant argued that since the New Jersey Endangered and Non-game statute does not define “threatened,” DEP could not create threatened species in its regulations.  DEP’s regulations define threatened as, “a species that may become endangered if conditions surrounding it begin to or continue to deteriorate.”   NJAC 7:24-4.1.  If there could not be a threatened species, then DEP could not classify the freshwater wetlands as exceptional and the applicant would be able to fill in the wetlands on its property.

The Applicant was only partly correct in its argument.  While the NJ statute does not have a separate definition for “threatened” its definition of endangered is:

“Endangered species” means any species or subspecies of wildlife whose prospects of survival or recruitment are in jeopardy or are likely within the foreseeable future to become so due to any of the following factors . . . NJSA 23:2A-3(C).

According to the Appellate Court, the highlighted section is the lynch pin.  As the DEP’s definition of threaten is actually part of the definition of endangered the Appellate Court found that the DEP did not exceed the authority granted to it under the statute.  Since the DEP was reasonable in creating the threatened category in its implementing regulations and listing species as threatened, its denial of the general permit to ZRB was within DEP’s authority.

DEP's Beach Access Rules all washed up.

Written by Mike Pisauro on November 27th, 2008 in Courts, Ocean | No Comments »

Last week the New Jersey Appellate Division invalidated at least part of the Department of Environmental Protection’s beach access rule.  The rules, adopted in 2007, required coastal towns that provide unrestricted access to the beach.  Towns that seek shore protection funds are required to provide parking spaces and restroom facilities close to the beach.

The Borough of Avalon and others sued DEP alleging that the beach access rules were beyond the authority of the Department.  DEP argued the beach access rules were authorized by the public trust doctrine, Coastal Area Facility Review Act (CAFRA), and the Shore Protection Fund Act.  The Appellate Division found DEP’s basis for authority to be unpersuasive and invalidated the Public Access Rules.  This is somewhat startling given that the Courts give all due deference to the agencies and presume that the rules are valid and reasonable.

In invalidating the rule, the Court noted that township may close public facilities, including beaches, at times when use of the public facility may pose a threat to public safety.   Township’s further have the legal authority to implement reasonable “regulations as to the use and enjoyment of the beach.”  This right of the township is not inconsistent with the public trust doctrine according to the Court.  The Court then compared this broad right with DEP’s narrower authority to control the beaches.  The Judges found no basis in the law or the Public Trust Doctrine for the DEP to interfere with this township right.

The Court made short work of DEP’s argument that CAFRA provided the authority to implement the rules.  CAFRA provides DEP authority to regulate certain land use applications, including development of greater than 24 units;  developments on the dunes etc.  The Court found absolutely no authority under CAFRA for the rules.

Lastly, the Court noted that the Shore Protection Fund statute only authorized the DEP to develop a ranking system for shore protection projects and recommend projects to the legislature.  NJSA 13:19-16.2(a).  It is then up to the Legislature to enact the actually funding of non-emergency shore protection funding.  According to the Court, northing in the statute gave DEP authority to place obligations upon township in exchange for these funds.

At this time it is not clear whether the DEP will seek certification to the New Jersey Supreme Court.  The real solution is for the legislature to pass a bill authorizing DEP to implement the regulations.  Given that the State has already enacted a bill delaying the implementation of the beach access rules’ application to marinas, such a result is very unlikely.