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Last Chance Development Partnership v. Kean

Decided: June 20, 1990.

LAST CHANCE DEVELOPMENT PARTNERSHIP, A NEW JERSEY GENERAL PARTNERSHIP; BAYSHORE ASSOCIATES, A NEW JERSEY GENERAL PARTNERSHIP; SAW MILL ASSOCIATES, A NEW JERSEY GENERAL PARTNERSHIP; FREDERICK W. SCHMIDT, JR.; STONE HARBOR BOULEVARD CORPORATION, A NEW JERSEY CORPORATION; FERGUSON DEVELOPMENT CORPORATION, A NEW JERSEY CORPORATION; BALD EAGLE ENTERPRISES, INC., A NEW JERSEY CORPORATION; AND LONG BEACH TOWNSHIP OCEAN FRONT PROPERTY OWNERS ASSOCIATION, RESPONDENTS,
v.
THOMAS H. KEAN, GOVERNOR OF NEW JERSEY; CHRISTOPHER J. DAGGETT, ACTING COMMISSIONER; AND NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, APPELLANTS



On certification to the Superior Court, Appellate Division, whose opinion is reported at 232 N.J. Super. 115 (1989).

For affirmance -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None.

Per Curiam

[119 NJ Page 426] The Waterfront Development Act provides generally for state regulation of the development of property along the waterfront of navigable waters. This case requires the Court to decide whether the New Jersey Department of Environmental Protection ("DEP" or "Department") exceeded its statutory

authority in promulgating either or both of two rule amendments to the Act. Those amendments extend DEP's regulatory authority to developments in upland areas extending considerably beyond the waterfront itself. The Appellate Division determined that the first amendment, which imposed no specific territorial limitation on the upland areas encompassed by the rules, exceeded the authority of the Waterfront Development Act and was therefore invalid. Last Chance Dev. Partnership v. Kean, 232 N.J. Super. 115, 556 A.2d 796 (1989).

Immediately following the Appellate Division's decision, DEP again amended the rules, imposing a territorial limitation on the upland areas covered by the regulations. Governor Kean and DEP filed a petition for certification to review the Appellate Division decision invalidating the regulations. They claimed that the rule amendment as initially promulgated by DEP was a valid exercise of administrative authority under the Act. In the alternative, they claimed that the most recent rule amendment, limiting the territorial extent of the State's regulatory authority, overcame the grounds relied on by the Appellate Division in invalidating the original rules and thus should be declared valid. Plaintiffs opposed the petition, contending that the Department's rules, even in their current form, are invalid. We granted the petition for certification, 117 N.J. 135, 564 A.2d 860 (1989).

I.

The rules that are the subject of this appeal were promulgated pursuant to the Waterfront Development Act ("Act"), originally enacted in 1914. L. 1914, c. 123; N.J.S.A. 12:5-1 to -11. It currently provides:

All plans for the development of any waterfront upon any navigable water or stream 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 approval of the Department of Environmental Protection first had and received, or as hereinafter in this chapter provided. [ N.J.S.A. 12:5-3.]

The Department promulgated its rule amendments following a declaration by Governor Kean that the coastal areas of the state were in "imminent peril" and required protective regulations. The first amendment adopted by the Department on December 2, 1988, provided that the regulatory authority under the Act

extend inland to include an adjacent upland area measured from the most inland beach, dune, wetland or other water area, . . . to the greater of (1) 100 feet; or (2) 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. [ N.J.A.C. 7:7-2.3(a)2.]

In a statement accompanying the publication of the proposal of that rule, DEP expressed concern that construction had occurred "in a piecemeal fashion without regard to cumulative impacts upon the special nature of the coastal area [and that] [a]bsent the adoption, the State will continue to suffer serious and cumulative adverse social and aesthetic effects." 20 N.J.R. 2815 (Nov. 7, 1988). To protect the coast from the environmental hazards of development, the rule would have established a "buffer zone" extending DEP's regulatory authority to the territorial areas covered by the Coastal Area Facility Review Act, N.J.S.A. 13:19-1 to -21 (CAFRA), and, within those areas, to projects of fewer than twenty-five units, which would not otherwise be subject to CAFRA regulation. As acknowledged by DEP, the rules were a response "to insufficient control and continued development in land areas within the CAFRA area approximate to tidal water." Ibid.

Plaintiffs Last Chance Development Partnership, Bayshore Associates, Saw Mill Associates, Frederick W. Schmidt, Jr., Stone Harbor Boulevard Corporation, Ferguson Development Corporation, Bald Eagle Enterprises, and Long Beach Township Ocean Front Property Owners Association, are developers and property owners of lands not directly ...


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