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B&J Realty, L.L.C. v. New Jersey Dep't of Environmental Protection

October 18, 2005

B&J REALTY, L.L.C., APPELLANT,
v.
NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, RESPONDENT.



On appeal from a Final Decision of the New Jersey Department of Environmental Protection, 50951/01.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued September 27, 2005

Before Judges Coburn, Collester and Lisa.

We consider in this appeal a final decision by the New Jersey Department of Environmental Protection (DEP or Department), through its Land Use Regulation Program (Program) in which the Department (1) determined that it possessed jurisdiction over the proposed development of appellant, B&J Realty, L.L.C., under the Coastal Area Facility Review Act (CAFRA), N.J.S.A. 13:19-1 to -21, by virtue of a previously issued CAFRA sewer extension permit; (2) informed appellant that because of deficiencies in appellant's engineering submissions, the Department was unable to determine the accuracy of the location of the mean high water line as depicted on appellant's plans, and thus could not determine whether a separate jurisdictional basis for CAFRA applicability existed based on proximity of the development to that line; and (3) denied appellant's request for a hearing in the Office of Administrative Law (OAL).

We conclude that DEP's assertion of CAFRA jurisdiction based on the previously-issued permit is not supported by the record, and we reverse on that issue. With respect to the mean high water line location, we conclude that appellant raised a bona fide dispute regarding a material fact and is entitled to an adjudicatory hearing to resolve the factual dispute. On that issue we remand for further proceedings.

Appellant owns a forty-eight acre vacant tract in the City of Brigantine. The property is on Rum Point Island, located at the confluence of Absecon Channel and St. Georges Thorofare, one mile west of the location where Absecon Inlet empties into the Atlantic Ocean. Rum Point Island is one in a series of "stepping stone" islands in the bay area behind Brigantine Barrier Island and Absecon Barrier Island (upon which Atlantic City is located) on which exists a causeway, Atlantic-Brigantine Boulevard, linking the two barrier islands.

On February 27, 2002, appellant received preliminary subdivision approval from the Brigantine Planning Board to develop its property, designated on the tax map as Block 8428, Lot 1. The original approval provided for seventeen building lots for the construction of seventeen single-family homes. The plans were later modified to provide for fourteen building lots for fourteen homes. The home sites would be located on a newly-constructed cul-de-sac on the upland portion of the tract, which has direct access to Atlantic-Brigantine Boulevard. In addition to the building lots, another lot in the subdivision would contain open space and buffer, and another would contain a sanitary sewer pump station and storm water basin. These would be maintained by a homeowners association. The remaining lot, consisting primarily of meadowlands, would be dedicated to the City, State or private not-for-profit conservation foundation. This large parcel would be left in its undisturbed natural state. It lies between the upland portion of the property, which is to be developed, and St. Georges Thorofare.

The property is in the R-1 Zoning District. No variances were required for the proposed development. The approval was conditioned upon obtaining necessary approvals from other governmental agencies, including a CAFRA "letter of approval or letter of non jurisdiction." Appellant's engineering plans, approved by the Planning Board, depict the mean high water line and, 150 feet landward, a corresponding "CAFRA Jurisdiction Line." As pertinent here, no CAFRA permit would be required if there is no development "between the mean high water line of any tidal waters . . . and a point 150 feet landward of the mean high water line," N.J.A.C. 7:7-2.1(a)(2), and the development is a residential development having less than twenty-five dwelling units, N.J.A.C. 7:7-2(a)(5)(i). Appellant contends its engineer surveyed the property in accordance with all applicable engineering standards and the resulting plans accurately reflect the location of the mean high water line and CAFRA Jurisdiction Line. The plans further reflect, according to appellant, that no development will occur in the CAFRA-proscribed area.

On May 20, 2002, appellant submitted to the Program its plans and a request for a "no jurisdiction" letter, stating that a CAFRA permit was not required for its development. On November 19, 2002, the Program responded by transmitting its "applicability determination for the Rum Point tract as issued [to a prior owner for a different proposed development] on June 20, 2000." In pertinent part, the June 20, 2000 letter stated:

Based on a review of the submitted documentation, the Coastal Area Facility Review Act, CAFRA, is not applicable to the construction of a subdivision with less than 24 dwelling units more than 150 feet from Mean High Water (MHW). The proposed sewer connection is regulated under CAFRA Permit No. 77- 0211- 5 which prohibited connection of "motels, marinas, commercial, industrial uses and residential structures along that section of Brigantine Boulevard adjacent to St. Georges Thorofare." If you would like to discuss the restrictions of CAFRA Permit 77-0211-5 and its prohibition of connections to residential structures, please contact Mr. Karl Braun, Region Supervisor.

Appellant submitted the response to the Planning Board, which found it unacceptable because it did not pertain to appellant's proposed development. Further, it was at best ambiguous, stating generally CAFRA non-applicability for a residential subdivision this size located more than 150 feet from the mean high water line, but expressing regulatory authority by virtue of a previously-issued CAFRA permit prohibiting sewer connection by residential structures "adjacent to St. Georges Thorofare."

On July 1, 2003, appellant made another submission to the Program. It requested "clarification" of the Program's purported jurisdictional determination, which it had submitted to the Planning Board on April 16, 2003. Appellant included a new set of engineering plans, revised as of May 15, 2003, scaling back the project from seventeen homes, as contained ...


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