On appeal from State of New Jersey Department of Environmental Protection, Docket No. 1327-04-0014.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, C.S. Fisher and Messano.
Petitioner Sandra Seigel appeals from the April 2, 2006, final agency decision of the Department of Environmental Protection (DEP) that denied her application for a coastal general permit under the Coastal Area Facility Review Act (CAFRA), N.J.S.A. 13:19-1 to -21. We reverse and remand the matter to DEP for further proceedings consistent with this opinion.
Petitioner is the owner of Lot 10.04, Block 165, in Manasquan, beachfront property that has been utilized by petitioner and her family as a summer and sometimes year-round residence since 1968 when her parents purchased it. A single family, one and one-half story home was constructed on the property in 1947. The property, one of the largest beachfront lots in Manasquan, is one-hundred and sixty feet deep, running from the street on the west, to the beach front line on the east, and approximately forty-seven feet wide. With the exception of her neighbor's property immediately to the north, petitioner's property is surrounded by fully-developed lots each containing two dwellings, one fronting the ocean and the other directly behind the first and fronting First Avenue. The property is one of only a handful of beachfront properties in all of Manasquan with only one house constructed on the lot.
The existing house, approximately fifty-two feet long and twenty-six feet wide, faces First Avenue and is separated from the street by a ten-foot concrete driveway leading to a garage. Including the wood deck on the back of the home, the entire existing structure covers less than one-half of the lot's length.
Consistent with the surrounding properties, petitioner sought to build a second home that faced the ocean on that portion of the property behind the current house. She intended to occupy it with her aged and ailing mother. She submitted an application to DEP for a CAFRA permit on May 2, 2004. On June 24, 2004, DEP conducted a site inspection of the property and concluded that a portion of the property "eastward of the eastern face of the existing dwelling" -- where petitioner intended to build the new home -- was located on a dune. N.J.A.C. 7:7E-3.16. DEP also determined that the proposed dwelling was located within the coastal high hazard area, N.J.A.C. 7:7E-3.18, and denied the application on August 2, 2004. Petitioner appealed and on September 12 and October 18, 2005, a hearing was held before an administrative law judge (ALJ) pursuant to N.J.S.A. 52:14F-1.
At the hearing, petitioner identified photographs of her home and the surrounding properties taken over the years.
Several of the photographs showed the beach stretching eastward from the rear of her house to the ocean in a generally flat expanse. Petitioner acknowledged, however, that several years ago Manasquan constructed a dune -- a "sand fence" -- on the easternmost boundary of her property in an effort to separate the beach from the private properties of petitioner and her neighbors. Over the years, the borough added additional sand "further towards the ocean."
Petitioner testified as to her reasons for constructing a second home between the existing house and the dune, an area she described as flat. She noted that her parents had sacrificed for years in order to purchase the property and they had struggled financially to keep it intact and within the family rather than selling off pieces of it for financial gain. Petitioner also testified that given the health status of her mother, the existing house could "not accommodate her." She also noted that one of her neighbor's homes, "four or five houses" from her, had been significantly reconstructed and built into the dune during the prior summer.
Keith Henderson, an attorney, testified as an expert witness on behalf of petitioner. Henderson practiced land use law in Manasquan for over thirty years, and was familiar with the borough's zoning ordinance and the history of petitioner's property and the surrounding lots. Henderson testified that all these beachfront properties at the north end of Manasquan were once owned as one parcel by American Timber Company, and the company permitted its employees to construct modest homes and leased the land to its workers. Eventually, the company sold off the property, but not before subdividing its one large parcel into many smaller ones. This resulted in most of the subdivided lots, though not petitioner's, having two structures on them.
Henderson testified that petitioner's lot contained the required width, and almost twice the square footage necessary, to construct a second house under Manasquan's zoning ordinance. He opined that pursuant to the ordinance petitioner could build a second structure without subdividing the lot, though she would be required to obtain a variance.
Petitioner's environmental expert, David Roth, testified. He conducted a site visit and reached several conclusions regarding petitioner's property and its location within the dune structures.
Roth noted that the property contained significant amounts of gravel. This was evidence, he concluded, that the proposed development area was not "subject to the natural dune process," but, rather, was the result of man-made processes like construction activities. Roth described the general topography of petitioner's property as having "a dune on its eastern edge" that Roth believed was man-made, with an "abrupt slope from its waterward side to its landward side." Roth testified that photographs taken of the area before 1990 show there was no dune on plaintiff's property at all.
Roth also testified that from the landward side of that dune, petitioner's property was "generally flat" and sloped less than one foot over the next seventy-two feet to the eastern edge of the existing home. Roth opined, therefore, that this area of proposed development was not on a dune because DEP's regulations required a dune to include a "relatively steep" oceanward and landward side.
Roth described the remainder of petitioner's property from the ocean side of the existing house as "slop[ing] down to [the street]." This incline along the street side of the property was more severe, was consistent with all the other properties along the street and was, in Roth's opinion, "an artifact of construction." Roth concluded that petitioner's proposed new house would be built "outside of a dune area," because it was "landward of the toe," or base, "of the dune." Roth also concluded that the new house would not be in the "coastal high hazard area" as defined by DEP's regulations. However, even if it was, Roth opined that petitioner met the criteria for the so-called "infill" exception to the regulations. Given the intense development that surrounded petitioner's property, Roth contended that the construction of a second home would not cause any detriment to the existing dune structures.
DEP's Colleen Keller of the agency's Bureau of Coastal Regulation testified as its expert in coastal planning and regulation. Keller conducted the primary review of petitioner's CAFRA application and had visited the property on various occasions. She testified that the entirety of petitioner's property was a dune, as defined by DEP's regulation, with its landward base at First Avenue. Keller opined that petitioner's home, along with the others along First Avenue, were actually built into the dune structure that existed prior to any of the development along First Avenue.
Keller also concluded that because petitioner's property was entirely on the dune, the proposed development was also within a coastal high hazard area. She further opined that petitioner could not comply with the "infill" exception to the regulation because she had not subdivided the property and because the new structure would not be within one-hundred feet of the surrounding properties.
Keller acknowledged during cross-examination that in DEP's denial letter, which she prepared, in DEP's answers to interrogatories, which she completed, and in her expert report, she stated the dune extended to "the easternmost wall of the existing single-family dwelling," though she claimed that she never intended those statements to convey an opinion that the landward base of the dune was located at that point. Keller also agreed that the minimal slope in the area of proposed development was not "steep," however, she attributed that to petitioner's activities, such as playing volleyball in that area. Lastly, Keller acknowledged that DEP's denial under the coastal high hazard rule was based solely upon the proposed construction being located on a dune, not within the so-called "high-velocity" or "V zone" to which the agency's infill exception applied.
The ALJ rendered his initial decision on February 16, 2006. He recognized that the primary dispute between the parties was "the location of the foot of the most inland slope [of the dune] . . . in other words, the extent of the dune on petitioner's property." He acknowledged that the "regulatory definition of 'dune' is not specific enough to answer the question concerning to what degree a slope no longer comprises the features of a dune." However, he did not believe the regulation's lack of "greater detail or specificity" was reason to find it "or [DEP's] interpretation thereof," "so arbitrary . . . as to render the agency action defective." Instead, the ALJ concluded that "due to the lack of specificity of these rules, the process of determining the extent of a dune should be considered on a case-by-case basis."
He concluded that the regulations' use of the term "relatively steep" did not support Roth's interpretation that the dune face had to have an "abrupt" change in steepness. Rather, the regulation supported DEP's conclusion that the entirety of petitioner's property was a dune because the use of the term "relatively" did not "require rigid adherence to the term" steep, but rather "relaxe[d] the characteristic[']s requirements." He concluded "nothing in the regulation . . . justif[ies] a finding that when the slope of a dune changes, then the boundary of the dune necessarily follows."
The ALJ relied upon CAFRA's legislative history as support for the conclusion that petitioner would not suffer any adverse economic impact by the denial. He reasoned that she could simply expand her existing home ...