On appeal from the Final Decision of the New Jersey Department of Environmental Protection, No. ESA-4063-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Coburn, Grall and Chambers.
Defendant Landview Property Group, L.L.C., appeals from the denial of its application for a permit under the Coastal Area Facilities Review Act (CAFRA) (N.J.S.A. 13:19-1 to -21).
Defendant seeks to redevelop the Avalon Pointe Marina located in the Avalon Manor section of Middle Township in Cape May County. The property is located on a "bay island" as defined in N.J.A.C. 7:7E-3.21(a).*fn1 The 3.44 acre property is currently a marina with approximately 100 boat slips, two boat lifts, a boat ramp, a bulkhead, piers including a fishing pier, substantial space for boat storage, a public walkway, two large boat warehouses, a boat repair shop, and a building for boat sales. No residential buildings are on the site, although residences are located offsite nearby. The land is completely covered with asphalt, clam shells, crushed stone, and buildings. No wetlands or endangered species are on the site.
Defendant proposes to reconfigure the roadway through the property, construct ten single-family dwellings inland, and build a new marina that would contain a bait and tackle shop, bath house facilities, a club house, and would continue to have 100 boat slips, a public walkway, and the fishing pier. The number of parking spaces per boat slip would exceed DEP requirements, although there would be fewer spaces than are currently on the property. The area for boat storage would be reduced. The amount of impervious cover would be reduced to somewhat less than fifty percent. The proposed development would not effect any wildlife, threatened or endangered species, or wetlands. Further, there is sufficient sewage capacity for the construction. The waterfront portion of the property would be completely accessible to waterfront activities.
Plaintiff's application for a CAFRA permit was denied by the DEP on January 8, 2004, on the basis that the proposed development did not comply with the requirements of N.J.A.C. 7:7E-3.21. The regulations provide in pertinent part that non-water dependent development is conditionally acceptable on bay islands, provided that the impervious cover does not exceed three percent of the bay island portion of the site. N.J.A.C. 7:7E-3.21(c)(2). Since plaintiff's proposed development would have impervious cover of almost fifty percent, it fails to meet this requirement. However, even if this requirement is not met, redevelopment or modification of a bay island site is conditionally acceptable if the proposed buildings or concrete or asphalt pavement would be located in the footprint of the existing buildings and concrete or asphalt pavement, and would not exceed the existing square footage of interior floor space. N.J.A.C. 7:7E-3.21(d)(1). Plaintiff's proposed redevelopment also fails to meet this criteria since most of its proposed buildings would be located outside the footprint of existing buildings and asphalt or concrete pavement. In addition, the square footage of the proposed buildings exceeds the square footage of the existing buildings by approximately 17,855 square feet.
Plaintiff does not dispute the administrative finding that its proposed redevelopment fails to comply with the regulations. Plaintiff however, maintains that the purposes of the regulations, such as protecting wetlands, migratory bird habitats and endangered species and other important natural resources, are not furthered by applying the regulations to its site. Plaintiff contends that these regulations, as applied to its proposal for the property, are arbitrary and capricious. In making this "as applied" argument, plaintiff relies on case law dealing with "as applied" challenges to municipal land use ordinances. See, e.g., Pheasant Bridge Corp. v. Twp. of Warren, 169 N.J. 282 (2001), cert. denied, 535 U.S. 1077, 122 S.Ct. 1959, 152 L.Ed. 2d 1020 (2002).
The State points out that the proposed redevelopment would reduce the water dependent uses of the property, contrary to one of the goals of the State's Coastal Management Program which is to sustain, conserve and revitalize water dependent uses and activities. N.J.A.C. 7:7E-1(c)(4).*fn2 Under the proposed redevelopment, the two boat lifts and the boat ramp would be eliminated, the boat repair shop would be smaller, shipyard type facilities would be eliminated, the area for boat storage would be reduced, public parking for the marina would be reduced, and the portion of property devoted to marina usage would be less. Further, the State notes that plaintiff could seek a hardship waiver from the regulations or a rule amendment in order to seek relief from the regulations, but has not done so.
After a hearing, the Administrative Law Judge affirmed the DEP's denial of the CAFRA permit in a twenty-four page Initial Decision dated May 22, 2006. The denial was upheld by the Commissioner of the DEP on July 12, 2006, in a written nine-page Administrative Action Final Decision. In that decision, the Commissioner noted that the DEP cannot waive a CAFRA requirement in the absence of a waiver provision in the rule and a finding that the waiver conditions were met, citing SMB Assocs. v. N.J. Dep't of Envtl. Prot., 264 N.J. Super. 38 (App. Div. 1993), aff'd, 137 N.J. 58 (1994).
After a careful review of the record and the arguments presented by the parties, we affirm for the reasons set forth by the Commissioner of the Department of Environmental Protection (DEP) in her ...