On appeal from Superior Court, Chancery Division, Monmouth County.
Furman, Petrella and Cohen. Cohen, J.A.D., dissenting.
[206 NJSuper Page 214] At issue in these consolidated appeals is the applicability of the Coastal Area Facility Review Act (CAFRA), N.J.S.A. 13:19-1, et seq., to beach clubs which construct or reconstruct cabanas
with individual amenities. The trial judge concluded that the structures then being built by respondents were not included in the statutory definition of "facility" and refused to order injunctive relief. We now reverse and remand to the Department of Environmental Protection.
The appeals come to us from the trial judge's refusal to grant injunctive relief, rather than from agency action (R. 2:2-3(a)(2)), because the Department of Environmental Protection (DEP) had applied in separate proceedings in the Chancery Division to enjoin M.J. Stavola t/a Driftwood Cabana Club (Driftwood) and Edgewater Beach, Inc., t/a Edgewater Cabana Club (Edgewater) from proceeding with construction pending its determination of the applicability of CAFRA and of the necessity of either or both defendants obtaining a permit thereunder. DEP had brought its suits for injunctive relief pursuant to N.J.S.A. 13:19-18 to enjoin what it considered further violations of CAFRA. DEP had alleged that Driftwood and Edgewater were constructing 25 or more dwelling units or the equivalent on property located in the coastal area and were doing so without either a CAFRA permit or a determination by DEP that CAFRA did not apply to the subject construction. DEP had previously issued "stop orders" to halt the continued construction work, but Driftwood and Edgewater both chose to ignore those orders and substantially completed their respective projects. Neither Driftwood nor Edgewater applied for either a CAFRA permit or a departmental determination that CAFRA did not apply.
From the record it appears that Driftwood and Edgewater had been operating as beach clubs in Sea Bright since some time in the late 1950's. Driftwood embarked on a renovation program in 1985 to upgrade its existing beach club from one and two-story structures housing 483 walk-in change lockers and a one-story structure housing 35 cabanas to two-story structures housing a total of 134 luxury cabanas containing 350 to 450 square feet per cabana, a full bath, dressing area, wet bar, entrance deck and beach deck. The cabanas would have
limited electrical service which would purportedly not accommodate cooking facilities. Apparently most of Driftwood's facilities are located ocean side, or east of the sea wall.
Edgewater likewise upgraded its club from 300-350 lockers, bath houses and cabanas to 100 cabanas whose size would be approximately 10 by 16 feet, and which would include a full bath, 10 foot deck, parlor, electrical outlets, phone jacks, bar area with sink, cabinet and refrigerator. Previously Edgewater accommodated approximately 1,500 people. It is contemplated that the renovated cabanas will service 790 people as a maximum.
At Driftwood, it is intended that the cabanas would be rented for a season by a maximum of six people with a total of four guests. Prior to construction of the cabanas Driftwood's facilities accommodated 2,150 people who leased lockers and cabanas. This number does not reflect guests who also used the facility. Upon the completion of its renovation Driftwood argues that it will accommodate only 804 members, exclusive of permitted guests. None of the cabanas at either location would meet the building code requirements (BOCA) for residential structures. They were not built with insulation and do not contain provisions for heating or air conditioning. Under the rules of each club overnight use of the cabanas is prohibited.
Driftwood also argues that the impact on the beach and surrounding area will be less following construction because: (1) the pilings for the new cabanas are deeper and more sturdy than those of the original cabanas; (2) some of the cabanas are further off the ground than preexisting structures; (3) the new cabanas are located in the same "footprint" as the old cabanas, except they were moved 15 feet pursuant to the borough engineer's request. Driftwood contends that these cabanas are not "dwelling units" or the equivalent as referred to in CAFRA because they do not meet BOCA standards for dwellings and overnight use is prohibited. DEP, on the other hand, contends that construction of these cabanas violates those provisions of
CAFRA which require that any person proposing to construct a "facility" in the coastal area must obtain a permit from DEP prior to beginning construction. N.J.S.A. 13:19-5.
In CAFRA the term "facility"*fn1 is defined in expansive, yet somewhat specific fashion in N.J.S.A. 13:19-3 c. The parties appear to agree that if any definition applies, it would come under subsection 3 c(5) which reads:
c. 'Facility' includes any of the facilities designed or utilized for the following purposes:
(5) Public facilities and housing --
Waste treatment plants (sanitary sewage).
Road, airport or highway construction.
New housing developments of 25 or more dwelling units or equivalent.
Expansion of existing developments by the addition of 25 or more dwelling units or equivalent. . . . [Emphasis added.]
DEP contends that a CAFRA permit is required for 25 or more "cabanas" because they "are similar in size to rooms people traditionally sleep in, have ready access to bathroom facilities, are designed as permanent structures and have generally the same land use and environmental impacts as more traditional housing units."
As noted, although cease and desist orders had been issued to Driftwood and Edgewater in April 1985, both defendants continued working on the construction of the cabanas. Essentially, Driftwood contended that the DEP had no statutory authority to issue the stop-work orders because neither CAFRA nor its implementing regulations, N.J.A.C. 7:7-1.1, et seq., provide for issuance of such orders. In declining injunctive relief the trial judge concluded that the definition of "dwelling units or ...