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Tumino v. Long Beach Township

March 24, 1999

JOHN TUMINO AND JOHN BARATTA, PLAINTIFFS-RESPONDENTS,
v.
LONG BEACH TOWNSHIP AND LONG BEACH TOWNSHIP DOCKS AND WHARVES COMMITTEE, DEFENDANTS-APPELLANTS



Before Judges Petrella, Cuff and Collester.

The opinion of the court was delivered by: Cuff, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: October 5, 1998

On appeal from Superior Court, Law Division, Ocean County.

In this appeal, we must determine whether regulations governing coastal zone management promulgated by the New Jersey Department of Environmental Protection (DEP) pursuant to the Waterfront Development Act, N.J.S.A. 12:5-1 to -11, preempt a local ordinance governing the placement and length of a dock. Judge Serpentelli concluded that the basis of the municipality's denial of a permit to construct a dock, its length, was preempted by State law and reversed the decision denying the permit application. The Township and its Docks and Wharves Committee appeal. We affirm.

Plaintiffs John Tumino and John Baratta own waterfront property in the Brant Beach section of Long Beach Township. The property is situated on Little Egg Harbor Bay.

In July 1996, plaintiffs submitted an application for a waterfront development permit to the DEP pursuant to the Waterfront Development Act and the Rules on Coastal Zone Management, N.J.A.C. 7:7E-1.1 to -8.21.*fn1 Plaintiffs proposed to remove and replace an existing dock, breakwater and bulkhead. The proposed dock would extend 215 feet into the water from the bulkhead and would be capable of mooring two private boats for recreational purposes. The length of the dock was governed by the need to have a minimum water depth of four feet at the point where the boats are moored. N.J.A.C. 7:7E-3.6(b)6vi. The area into which the dock extends is within plaintiffs' riparian grant.

As required by N.J.A.C. 7:7-4.2, plaintiffs provided notice of this application to all owners of property within 200 feet, as well as to the Long Beach Township Environmental Committee, Municipal Clerk, Construction Official and Planning Board. Three property owners submitted written objections to the project. These objections generally expressed the opinion that the length of the dock would create a hazard by interfering with recreational activities, such as waterskiing, jet skiing and pleasure boating, and would block views of the bay.

DEP requested plaintiffs to reduce a portion of the proposed dock, the "T" terminus for mooring boats. It concluded that the elimination of this portion of the proposed dock was needed to allow vessels to access the mooring areas directly through plaintiffs' riparian grant area rather than through the water area offshore of adjacent properties. On September 25, 1996, plaintiffs requested DEP delete the proposal for the dock and proceed only with the bulkhead proposal. Two days later, DEP issued General Waterfront Permit No. 1517-95-0056.3 authorizing the construction of seventy-five linear feet of bulkhead within eighteen inches of the existing bulkhead.

On February 4, 1997, Tumino submitted an application for an amendment to the issued permit, seeking authorization to construct a new dock and breakwater. Based on a site inspection performed on August 19, 1996, DEP determined that docks existing to the north of the proposed project extended "significantly farther into the water than the proposed dock" and that, therefore, the proposed dock was not a navigational hindrance. Further, DEP noted that the end of the proposed dock was approximately 450 feet from the intercoastal waterway and therefore, posed no interference with navigation. See N.J.A.C. 7:7E-3.7(b)5 (regulation prohibits the placement of structures within fifty feet of any authorized navigation channel unless it can be demonstrated that the proposed structure will not hinder navigation).

DEP issued a Waterfront Development Permit modification (No. 1517-95-0056.4), effective March 12, 1997. The permit modification authorized Tumino to remove the existing dock and breakwater and to construct a new dock measuring four feet wide by 215 feet long, with the "T" section at the terminus measuring seventeen feet long by six feet wide to the north and thirty-four feet by four feet wide to the south. The permit modification also authorized the construction of a thirty-four feet by two feet finger pier parallel to the southern "T" section to accommodate a boat lift, and the construction of fifty-five linear feet of breakwater along the terminus of the "T." The permit noted that its issuance did not obviate the need to obtain any necessary federal or local permits.

The permit also imposed certain physical conditions. It imposed standards for space between horizontal planking, width of the planking, and width of the structure. It specified that no more than two vessels, including jet skis, could be moored at the site. Dredging was not permitted. Finally, the permit established the maximum depth of the breakwater (eighteen inches above the bottom of the waterway) and the minimum spacing between planks (three inches). These conditions are related to the need to provide an unobstructed flow of water and aquatic organisms and to protect the habitat of aquatic organisms.

Upon receipt of the DEP permit, Tumino submitted an application to the Long Beach Township Docks and Wharves Committee (DWC), pursuant to Long Beach Township Ordinance #94-35C, for a local permit for the same project approved by DEP.

Drawing its authority from N.J.S.A. 40:68-12, the DWC consists of the Township Zoning Officer (who serves as chair of the DWC), Building Subcode Official, Engineer and two residents (one of whom is a member of the Planning Board or Zoning Board of Adjustment), and two alternate members. The Ordinance empowers the DWC to perform the following functions: (1) receive applications for the building of a dock or a wharf within the Township (§ 9-7.1); (2) hold public meetings on a monthly basis (if necessary) to consider these applications (§ 9-7.1); and (3) upon the receipt of federal and state approvals, issue, through the Building Subcode Official, a dock permit (§ 9-7.2). In addition, the Ordinance sets forth requirements regarding plans (§ 9-7.4), construction specifications (§ 9-7.5), elevations and dimensions (§ 9-7.6), clearance from channels (§ 9-7.7), and dimensions exceeding maximum specifications (§ 9-7.8). The Ordinance also ...


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