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Didonato v. Wildwood Municipal Body Corporate and Politic

Decided: May 7, 1984.

THOMAS J. DIDONATO, PLAINTIFF-RESPONDENT,
v.
WILDWOOD MUNICIPAL BODY CORPORATE AND POLITIC, AND MICHAEL PRESTON, DEFENDANT-RESPONDENTS, AND STATE OF NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, DIVISION OF COASTAL RESOURCES, DEFENDANT-APPELLANT



On appeal from Final Judgment of the Superior Court, Law Division, Cape May County.

Bischoff, Petrella and Brody. The opinion of the court was delivered by Petrella, J.A.D.

Petrella

The trial judge entered a judgment declaring that plaintiff's development application was automatically approved under the Coastal Areas Facility Review Act (CAFRA), N.J.S.A. 13:19-1, et seq., and implementing regulations, when read in conjunction with the provisions of N.J.S.A. 13:1D-29, et seq., referred to as the "90-day law, for failure of the Department of Environmental Protection (DEP) to notify the applicant of its action in disapproving plaintiff's application within 90 days. We reverse.

On this appeal the DEP urges that the trial judge erred in holding that it failed to act on plaintiff DiDonato's application for a CAFRA permit in a timely manner and erred in applying the provisions of the 90-day act.

Plaintiff is a developer involved in acquiring and improving real estate in Cape May County. On July 21, 1982 plaintiff submitted to the DEP an application for a CAFRA permit together with an environmental statement to allow construction of a five-story, 80-unit condominium within the coastal zone in Wildwood pursuant to N.J.S.A. 13:19-6. Additional information was required by the DEP. On August 25, 1982 the DEP considered the application complete and scheduled a public hearing for September 30, 1982. After that hearing plaintiff submitted the requisite additional information requested and it was received by the DEP on October 21, 1982. The DEP acknowledged receipt by letter dated October 22, 1982 indicating that under "Section 12 of the Act (CAFRA), you will be notified of the decision of the Department on this permit application within 90 days of that date, or by January 19, 1983."

On January 19, 1983 the Acting Director of the Division of Coastal Resources signed a denial of the application. The envelope containing the notification was postmarked January 21, 1983 and was received by plaintiff on January 22, 1983.*fn1

Plaintiff's February 18, 1983 request for an administrative hearing was granted by the DEP on April 7, 1983. In the meantime on March 4, 1983 plaintiff filed an action in lieu of prerogative writs. On the return date of the order to show cause and the State's cross-motion to dismiss for failure to exhaust administrative remedies, the trial judge entered judgment in favor of plaintiff and denied the State's cross-motion. The DEP appealed, and plaintiff's administrative hearing was placed on the inactive list pending the determination of this appeal.

Resolution of this case depends upon the efficacy of the DEP's January 19, 1983 denial of plaintiff's application.

CAFRA provides in ยง 12 (N.J.S.A. 13:19-12):

The commissioner shall notify the applicant within 60 days after the hearing as to the granting or denial of a permit. The reasons for granting or denying the permit shall be stated. In the event the commissioner requires additional information as provided for in section 9, he shall notify the applicant of his decision within 90 days following the receipt of the information. (Emphasis added.)

CAFRA does not provide for any consequence upon failure to so notify within the 90 days. There is no automatic approval or disapproval provision. Regulations implementing CAFRA provide in N.J.A.C. 7:7D-2.3(e)7 for notification of the applicant by certified mail and publication in the "DEP Weekly Bulletin." The regulations also provide for automatic approval based on a failure to act within the statutory time period. That regulation reads in pertinent part:

Decision: Once the application is complete for review, the commissioner shall review the filed application, including the environmental impact statement; relevant State, regional, county, and municipal plans and policies; public agency, private organization and individual comments; the preliminary analysis and ...


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