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Last Chance Development Partnership v. Kean

Decided: April 7, 1989.


On Appeal from Final Decision of the Department of Environmental Protection.

J. H. Coleman, Deighan and Baime. The opinion of the court was delivered by Baime, J.A.D.


[232 NJSuper Page 116] The sole issue presented by these appeals is whether the Department of Environmental Protection (DEP) exceeded its

statutory authority in promulgating amendments to the Waterfront Development Permit Rules, N.J.A.C. 7:7-2.3. The amendments substantially expand the regulatory jurisdiction of the DEP over upland developments in certain coastal areas. In essence, the challenged regulation requires persons to obtain waterfront development permits as a prerequisite to the construction of any structure in a broadly defined geographic area, encompassing properties far distant from the nearest coastal wetland.

The amendments were originally adopted as an emergency measure following the Governor's certification of the existence of an "imminent peril," thereby authorizing the rule to take effect immediately for a duration of 60 days. After appellants filed a timely appeal, the emergency regulation expired by its own terms, but its essential provisions were carried over and made permanent upon the adoption of N.J.A.C. 7:7-2.3. Appellants immediately filed a separate appeal from the promulgation of the permanent regulation and requested consolidation of the two matters and acceleration of argument. Pursuant to this request, we consolidated the two appeals and directed that they be argued on an expedited basis. Since the emergency rule is no longer in force, we dismiss the original appeal as moot. See Alboum v. Newark, 22 N.J. 571, 572 (1956); City Association of Supervisors v. Board of Education of Newark, 168 N.J. Super. 184, 194 (App.Div.1979). However, we will consider the combined records in order to insure a complete and thorough review of the common question presented by both appeals. Cf. Riggs v. Long Beach Tp. 101 N.J. 515, 523 (1986), rev'd 212 N.J. Super. 69 (App.Div.1986), rev'd and remanded 109 N.J. 601 (1988).


Appellants are property owners and developers who, under the amended regulation, are now required to obtain a permit

from the DEP before construction of any structures on their land. Under the new regulation, their land is considered "waterfront" property and is thereby subject to the regulatory authority of the DEP. Under N.J.A.C. 7:7-2.3, as amended, the DEP's "waterfront jurisdiction"

extend[s] inland to include an adjacent upland area measured from the most inland beach, dune, wetland or other water area, as these terms are defined in N.J.A.C. 7:7E, to the greater of:

(i) 100 feet; or

(ii) the inland limit of the first property associated with residential, commercial or industrial use that involves a permanent building based on property lines existing on October 3, 1988; provided, however, should the Division issue a waterfront development permit after October 3, 1988 for a use involving a permanent building, upon project completion the inland limit for purposes of this subparagraph shall be the inland property boundary associated with this permit.

The far-reaching effect of the regulation cannot be seriously disputed. The definition of "waterfront" subject to the DEP's regulatory authority includes some properties over one mile away from the nearest wetland. That this is so is best high-lighted by appellants' respective properties. Bayshore Associates, for example, owns a 120-acre tract which, although fronting on the Delaware Bay, has an inland depth of some 6,000 feet from the waterline. The prospective buyer of the outermost lots would be required to obtain a waterfront development permit although the nearest coastal water is approximately one mile away. Appellant Frederick W. Schmidt owns two parcels of land which form a single tract of 200 acres. One end of the property fronts on Delaware Bay, but the upland portion commences on Route 47 and runs a distance of 3,090 feet to the closest portion of coastal wet-lands, a distance of over 5,424 feet to the closest high tide line. The subdivision he planned to develop would be located some 4,000 feet away from the Delaware Bay. Sawmill Associates owns a 200-acre tract near Route 47, located 2,600 feet from the high waterline of the Delaware Bay and 3,090 feet away from the Skeeter Island Creek. Last Chance Development Partnership owns two lots approximately 1,263 feet away from the Cape Island Creek.

The remaining appellants are also impacted by the amended regulation, but perhaps in less dramatic fashion. Each of these property owners is now required to obtain a waterfront development permit under the amended regulation in order to construct a structure of any kind and any size on his land.

Appellants argue that the regulation is ultra vires because its reach far exceeds the jurisdictional powers conferred upon DEP by the Legislature. It is also claimed that the DEP's assertion of regulatory authority is repugnant to express and specific statutory provisions. We agree with both contentions and are thus constrained to set aside the regulation.


Unfortunately, a somewhat lengthy description of the applicable statutory and regulatory provisions and their history is essential for a complete understanding of the issues presented.

A. The Waterfront Development Act.

Regulation of waterfront development in New Jersey dates back to 1914, when the Waterfront Development Act (N.J.S.A. 12:5-1 et seq.) (Act) was first adopted. The impetus for the enactment of the statutory scheme came from the reports of the New Jersey Harbor Commission, a body appointed by Governor Woodrow Wilson to prepare a study of the port needs of the State and to recommend a policy designed to facilitate commerce and navigation. New Jersey Harbor Commission, Fourth Preliminary Report (1914). See also Board of Commerce and Navigation, Report to the Legislature on the Formation and Operation of the Board (1915). Noting that control over waterfront development was fragmentary and piecemeal, the Commission observed that "there has been no supervision whatsoever over the lay-out of piers and other structures with relation to each other, or to the general commerce of the district and port." New Jersey Harbor Commission, Fourth Preliminary Report at p. 6. The Commission

further noted that "the development of New Jersey, industrially, is [retarded] by reason of the failure of the State to adopt any policy for developing its frontage or waterways." Id. at 7. To remedy these evils, the Commission recommended "the appointment of a permanent Harbor Commission with certain well-defined powers over the waterfront and waterways in the State." Id. at 8. See also Newark v. Essex County Board of Taxation, 54 N.J. 171, 174 (1969), cert. den. 396 U.S. 987, 90 S. Ct. 483, 24 L. Ed. 2d 452 (1969).

The legislative history thus discloses that the principal concern in adopting the Act was to promote commerce and navigation. This articulated objective is also reflected in the express statutory provision empowering the "board of commerce and navigation" to "prevent the encroachment or trespass upon the water front of any of the navigable waters," or upon the riparian lands of this State," and to "restrain" and "remove" any "construction, erection or accretion injurious to the flow of any such waters, which may be detrimental to . . . proper navigation . . . and the maintenance and improvement of commerce. . . ." N.J.S.A. 12:5-2. In a similar vein, the board was directed to "investigate and report annually to the legislature the condition of water-front and harbor facilities . . . incident to the movement of commerce upon all navigable rivers and waters" and to recommend measures necessary "for the preservation of proper navigation or its improvement or the improvement of commerce upon such waters." N.J.S.A. 12:5-1. See also New Jersey Harbor Commission, Annual Report, p. 5 (1915).

As we have noted, one of the principal concerns of the Commission was the lack of "supervision . . . over the layout of piers and other structures . . . with relation to the general commerce of the district and port." New Jersey Harbor Commission, Fourth Preliminary Report at p. 6. In order to combat this problem and to coordinate planning, the Legislature conferred upon the board the power to review proposals for

development and improvement of the waterfront. The operative statute, N.J.S.A. 12:5-3, reads as follows:

All plans for the development of any water-front upon any navigable water or stream of this State or bounding thereon, which is contemplated by any person or municipality, in the nature of individual improvement or development or as a part of a general plan which involves the construction or alteration of a dock, wharf, pier, bulkhead, bridge, pipeline, cable, or any other similar or dissimilar waterfront development shall be first submitted to the Department of Environmental Protection. No such development or improvement shall be commenced or executed without the ...

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