On appeal from New Jersey Department of Environmental Protection, Division of Coastal Resources and Coastal Area Review Board.
Botter, Antell and Furman. The opinion of the court was delivered by Antell, J.A.D.
Plaintiffs are commercial shell fishermen and nonprofit corporations respectively concerned with protecting the interests of the commercial shell fishing industry and preservation of the environment. They appeal from a determination of the Division of Coastal Resources (DCR) within the Department of Environmental Protection (DEP) conditionally granting approval for a construction permit under the Coastal Area Facility Review Act, N.J.S.A. 13:19-1 et seq. (CAFRA) to respondent Historic Smithville Development Company (HSDC) in connection with a large-scale development in the vicinity of the Great Bay-Mullica River estuary. DCR's determination was affirmed by the Coastal Area Review Board (CARB) under N.J.S.A. 13:19-13. The conditional character of the permit granted is characterized by the agency as "conceptual" only, allowing of no actual construction until all prescribed statutory standards are satisfied.
In substance, plaintiffs contend on this appeal that authority for such conceptual approval is nowhere provided by CAFRA, that the permit was issued in violation of DEP's own regulation whereby the area in question was accorded a low-growth designation,
and that it is basically in conflict with the State's coastal growth management strategy articulated in N.J.S.A. 13:19-1 et seq. and N.J.A.C. 7:7E-1.1 et seq. Plaintiffs further contend that the approval was granted without a foundation of factual findings necessary to assure the preservation of this environmentally sensitive area. The State responds that the necessary safeguards inhere in the condition that no concrete steps in the project may be taken without first satisfying the Department that an adverse impact on the area will not thereby result, and that conceptual approval represents a "factually reasonable and legally correct response to the unique demands placed on the administrative system by the large scale project."
On October 9, 1979 HSDC submitted its application for a CAFRA permit. The development proposed would be of a substantial size. It contemplates a 700-room hotel, 6,850 living units, 860,000 square feet of commercial and office space and the eventual introduction of a population of 20,000 people. As the decision under review notes, during a pre-application conference DCR decided that
After a public hearing on April 2, 1980 the permit was "conceptually" approved by the DCR in accordance with its written decision of that date. Its issuance had been opposed not only by plaintiffs but by state and federal regulatory agencies such as the Division of Water Resources, the Bureau of Shellfish Control, the Office of Environmental Assessment, the Division of Fish, Game and Wildlife, the United States Fish and Wildlife Service, and the United States Environmental Protection Agency. All expressed grave reservations about the likely environmental impact, particularly as it related to air and water quality and wildlife habitat. Since plaintiffs' appeal was regarded by DEP as raising questions pertaining to matters of policy, it was
referred to CARB for review. From CARB's affirmance thereof plaintiffs appeal.
The project site is upstream from the Brigantine National Wildlife Refuge, an area of 20,564 acres dedicated to the preservation and protection of wildlife, birds and saltwater wetlands. It is situated above the Cohansey aquifer and is trisected by several important watercourses which flow either to the Mullica River or directly to the Great Bay, thus forming the Mullica River-Great Bay estuary, one of the last remaining commercially-viable shellfish areas in this part of the State.
The Refuge provides a unique habitat for black skimmer, peregrine falcons, osprey, bald eagles, terns and other endangered birds, as well as numerous other threatened species. Two-thirds of the Refuge consist of saltmarsh wetlands, with the remainder comprised of woodlands, meadows, pinestands, oak and other vegetation. It contains 1,600 acres of freshwater impoundment, assuring a unique freshwater habitat for birds and wildlife and serves as a buffer to preserve the quality of the Great Bay. Its character as a particularly fragile ecosystem is underscored by the fact that it has been assigned a low-growth designation by Department regulation. As the decision of the DCR particularly notes, such a designation "is heavily weighted against disturbance of the existing landscape in an area." It further acknowledges that "unless development potential is high and the site's environmental sensitivity is low or medium, no site disturbance or development is acceptable."
The nature of the approval granted by the Department is explained in the following language of the DCR decision:
This approval is conceptual. It does not give the applicant the right to commence site clearing, preparation, or any other construction activities related to the project beyond the work on the model units released by letter of June 13, 1980 from Director Kinsey. Every parcel of the project will require a complete submission under CAFRA as defined in the CAFRA Procedural Rules and Regulations , (N.J.A.C. 7:7D-2 et seq.), with a normal application review process including the required fact-finding public hearing.
This approval, however, encompasses the concept of the development of a Large Scale Planned Residential Development in the proposed location of the
portion of Galloway Township which has a "limited growth region" designation in the Land Area Location policies. Generally, the approval extends to the type of uses proposed and to the size of the proposed project in terms of the maximum number of units to be permitted, the maximum square footage of commercial and office space, and the minimum acreage of open space. In addition, this approval includes support of the general stormwater management plan, water supply plan, and wildlife/vegetation maintenance plan and controls.
The approval does not obligate any Department or Agency of the State of New Jersey to approve any parcel or component of the proposed development nor does it imply DEP approval under CAFRA of any subsequent submission for a construction permit application. The groundwater, surface water, traffic and air quality monitoring programs and data reporting specified as conditions to this approval shall be carried out as outlined, for the time periods specified. At some future date, if adverse effects develop which cannot be corrected, the size of the development will have to be restricted below that proposed in the Master Development Plan ...