On appeal from Superior Court of New Jersey, Law Division, Cape May County, L-78-00.
Before Judges Skillman, Conley and Wecker.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
The Coastal Area Facility Review Act (CAFRA), N.J.S.A. 13:19-1 to 21, requires any party who plans to construct a "public development" within the coastal area to obtain a permit from the Department of Environmental Protection (DEP). N.J.S.A. 13:19-5. In 1995, the Borough of West Cape May obtained a CAFRA permit that authorized the municipality to construct an additional wastewater pump station and extend its sewer lines. The permit contained various conditions that West Cape May was required to satisfy before starting construction.
This appeal turns on the interpretation of condition seven of the permit, which provides in relevant part:
[W]ritten authorization [must be obtained] from the [DEP], prior to the installation of any sewer "laterals or tie-ins" to undeveloped properties within: a) wetlands, b) the 150' transition (buffer) areas from these wetlands, or c) wet soils or high permeability moist soils (below elevation 10') as shown on the referenced "Land Capability Map". Prior to construction, the Borough must adopt a Land Use Regulation Program approved municipal resolution clearly listing all these properties.
To comply with this condition, West Cape May's governing body adopted a resolution that listed the undeveloped properties in the proposed new sewer service area that West Cape May considered to be within wetlands, transition buffer areas or wet or high permeability moist soils below ten feet in elevation. Plaintiff Dorothea Mutschler's property in the new sewer service area was omitted from this list.
Plaintiffs Richard and Barbara Wilde subsequently contracted to purchase this property from Mutschler. They propose to construct a twenty-one unit residential development on the property. To obtain authorization for their development, the Wildes applied to defendant Borough of West Cape May Planning Board (Planning Board) for subdivision approval.
Shortly before the application was to be heard, defendant Kevin Broderick, the Chief of the DEP's Land Use Regulation Program, sent a letter to the Planning Board Chairperson, which stated that "prior to the start of construction of any sewerage generating development on [the property], approval must be received from the [DEP's] Land Use Regulation Program." Based on this letter, the Planning Board deferred consideration of the Wildes' application pending the DEP's approval.
After further review of the matter, Broderick sent a letter to Mr. Wilde, dated June 17, 1999, which reaffirmed that the Wildes must obtain authorization from the DEP, in accordance with condition seven of the sewer construction permit, before their proposed residential development can be connected to the new sewer line:
A review of the site plan [for the Wilde's proposed residential development] . . . in concert with a review of the "Soil Survey of Cape May County", reveals construction is proposed in either a wet or high permeability moist soil. Accordingly, written approval is necessary from the [DEP] before your development can tie into the Stevens Street sewer line.
Defendant Raymond E. Cantor, an Assistant Commissioner of the DEP, subsequently sent a letter to the Wildes' attorney, dated December 23, 1999, which affirmed Section Chief Broderick's ruling:
Pursuant to [condition seven], it was incumbent upon [West Cape May] to accurately investigate all potentially sewerable properties that could be serviced by the Stevens Street line and then pass an ordinance that restricted development from those ...