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In re New Jersey Department of Environmental Protection

Decided: January 12, 1987.

IN THE MATTER OF THE NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, DIVISION OF COASTAL RESOURCES REGULATION, N.J.A.C. 7:7-2.1(B)1.III., AND APPLICATION OF SAID REGULATION TO A CERTAIN PROJECT PROPOSED BY RALPH CLAYTON, JR.


On appeal from the Division of Coastal Resources, New Jersey Department of Environmental Protection.

Furman, Shebell and Stern. The opinion of the court was delivered by Furman, P.J.A.D.

Furman

Ralph Clayton, Jr. appeals from a decision by the Division of Coastal Resources in the Department of Environmental Protection (DEP) asserting its jurisdiction under the Coastal Area Facility Review Act (CAFRA), N.J.S.A. 13:19-1 et seq., to review Clayton's proposed commercial shopping center development. No CAFRA hearing has been held.

The appeal was filed as of right under R. 2:2-3(a)(2), purportedly to review a final decision of a State administrative agency. Instead, leave to appeal should have been sought. The assertion of DEP jurisdiction was interlocutory, not final. Under the circumstances, including the submission of briefs and argument before us on the jurisdictional issue, we grant leave to appeal nunc pro tunc.

Clayton's premises are in a coastal area subject to the requirement of a CAFRA permit prior to construction of a facility. The specific issue before us is whether Clayton's proposed paved parking lot of more than three acres and with approximately 740 parking spaces is a facility as defined in CAFRA, N.J.S.A. 13:19-3(c)(5). Concededly, a DEP regulation, N.J.A.C. 7:7-2.1(b)(1)(iii), is applicable to impervious paving of an area of more than two acres for motor vehicle parking and related access thereto, such as Clayton proposes. Nevertheless, he contends that N.J.A.C. 7:7-2.1(b)(1)(iii) is ultra vires and unenforceable because it is without warrant in the CAFRA definition of facility.

As noted in Matter of Egg Harbor Associates (Bayshore Centre), 94 N.J. 358, 364 (1983):

The primary purpose of CAFRA is to protect the unique and fragile coastal zones of the State. Through CAFRA, the Legislature intended to reverse "serious adverse environmental effects . . . that would preclude or tend to preclude those multiple uses which support diversity and are in the best long-term, social, economic, aesthetic and recreational interests of all people of the State." N.J.S.A. 13:19-2. To achieve this goal, the Legislature determined that

all of the coastal area should be dedicated to those kinds of land uses which promote the public health, safety and welfare, protect public and private property, and are reasonably consistent and compatible with the natural laws governing the physical, chemical and biological environment of the coastal area.

See also State, Dept. of Envir. Protection v. Stavola, 103 N.J. 425, 431-432 (1986). CAFRA should be construed liberally to effectuate its purpose and intent, N.J.S.A. 13:19-20.

N.J.S.A. 13:19-3(c)(5) includes within the CAFRA definition of facility:

"Public facilities and housing --

Road, airport, or highway ...


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