On appeal from a Final Decision of the State of New Jersey, Department of Environmental Protection.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Coburn, Fuentes and Grall.
Respondents Debra Swiecicki and Paul Craddock, Jr. ("Swiecicki/Craddock") own a beachfront lot on which they want to erect a single family house. The house could not be constructed without permission from respondent Department of Environmental Protection ("DEP"). The applicable statute is the Coastal Area Facility Review Act, N.J.S.A. 13:19-1 to -33 ("CAFRA").
The initial application for a CAFRA permit was made in November 1998, on behalf of a couple who had agreed to purchase the property from the then owner, the Estate of Paul Craddock. Their application was denied in December 1998, and in January 1999, they filed a request with the DEP for a hardship waiver. The administrative process was delayed because of litigation between the Estate and the contract purchasers that ultimately settled with cancellation of the contract. Swiecicki/Craddock inherited the property and continued to pursue the hardship waiver.
In April 2006, the DEP and Swiecicki/Craddock reached a settlement, subject to public comment and ultimate DEP approval. The DEP published the proposed settlement on May 3.
Angelo and Marie Sacco filed a written objection to the settlement on May 10. The DEP responded to the Saccos in a letter dated May 24, refusing to reconsider the settlement. On June 26, the Saccos asked the DEP for further reconsideration or, in the alternative, for a hearing on their objections before the Office of Administrative Law ("OAL"). While their request for an OAL hearing was still pending, the Saccos filed their notice of appeal in our court. The notice of appeal states that relief is sought from a DEP decision of "June 21, 2006."
The record contains no decision of June 21, 2006, and it is apparent that no decision was made on that date, although according to appellants' CIS, that is the date on which the settlement "was the subject of public notice in the DEP Bulletin." It appears that when they filed their appeal, the Saccos were attempting to appeal from the settlement document itself, as allegedly published on June 21, 2006, or from the settlement and the May 24, 2006, letter signed by the DEP's Manager, Bureau of Coastal Regulation, rejecting their objections. Those obviously were not final decisions, and therefore they were not appealable as if right. R. 2:2-3(a)(2); N.J.A.C. 1:1-2.1. However, subsequent circumstances, to which we will now turn, justify review on the merits instead of dismissal of the appeal as interlocutory.
In August 2007, the Saccos filed a motion for stay of the decision in the DEP. The matter was presented to the Commissioner, who rendered a decision denying the stay October 10, 2007. In the course of that decision, the Commissioner addressed the merits of the appeal with the following observations:
By entering the stipulation of settlement, the DEP did not grant a waiver or relaxation of requirements pursuant to N.J.A.C. 7:7-1.10, but rather settled uncertain and disputed rights that were the subject of litigation, pursuant to the procedures provided by N.J.A.C. 7:7-5.4.
Strong public policy in this State favors the ability of any agency to settle litigation. Such a settlement should be upheld if it is reasonable, and effectuates the purposes of CAFRA. [Citation omitted.]
The settlement in this case fully and properly addressed the requirements of N.J.S.A. 13:19-10(a) through (g), and therefore was proper.
No party submitted a brief arguing for dismissal of this appeal based on the lack of a final decision. Furthermore, that result would be demonstrably unfair to Swiecicki/Craddock, who have waited far too long for the opportunity to build their beach home. Since the merits have now been addressed by the Commissioner, further proceedings before the DEP would be unacceptable and ...