July 8, 2008
IN RE MESQUITE TOWER CONSULTANTS, L.L.C., CAFRA PERMIT NUMBER 1507-04-0074.1 CAF 040001 (COASTAL GENERAL PERMIT 25).
On appeal from the Department of Environmental Protection, CAFRA Permit No. 1507-04-0074.1 CAF040001.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 17, 2007
Before Judges A. A. Rodríguez, Collester and C. L. Miniman.
Appellants, Robert Gleason, Richard Zirkel and Jack Lasher, challenge the issuance of New Jersey Department of Environmental Protection (NJDEP) CAFRA Permit No. 1507-04-0074.1 (the permit), a general permit pursuant to the Coastal Area Facility Review Act (CAFRA), N.J.S.A. 13:19-1 to -21, to Mesquite Tower Consultants, L.L.C. (Applicant). The permit allowed Applicant to construct a flagpole telecommunication structure on property owned by Frederick Zbranak and located on Strickland Boulevard, Chadwick Beach Island in Dover Township, Ocean County. We affirm.
The site of the telecommunication structure is near the watershed of Barnegat Bay and consists of uplands at a horseshoe-shaped commercial marina. Applicant sought to build a 75-foot by 40-foot concrete pad and to place upon it a 130-foot telecommunication tower that would be "disguised" as a functioning flagpole. The structure and equipment would be surrounded by an 8-foot high chain link fence. The pad would be "located on an existing graveled area currently used for boat storage and automobile parking." The marina area is surrounded by residences located on the adjacent lagoons and other lagoons nearby. The tower site is to be located within 150 feet of the mean high waterline of a manmade tidal lagoon.
Five adjacent property owners, including Joan Lasher and appellants Robert Gleason and Richard Zirkel, each provided the NJDEP separate written objections to the proposal. Gleason objected that use of the land for the proposed tower site would adversely affect the recreational use of the marina by reducing parking and winter boat storage. The objections generally challenged the proposed plan as aesthetically incompatible with the surrounding residential and recreational area, and raised concerns about: noise from the flag; the effect on wildlife; health risks; and radio and television interference from the tower.
Despite the objections, on June 21, 2004, the NJDEP's Land Use Regulation Program issued the permit pursuant to CAFRA and the authority of the Coastal Zone Management (CZM) Rules. As a condition of the permit, the NJDEP required the construction of a silt fence along the water during construction and the dismantling of the structure when no longer in use. It also required that the Applicant "insure [that] the structure does not generate any noise that could be deemed to be a nuisance by the municipality and adjacent residences."
Appellants requested an adjudicatory hearing. The NJDEP issued an order that denied appellants' request on the basis that CAFRA does not grant third-party objectors the right to a hearing to challenge the NJDEP's issuance of a permit. The order also noted that a review of the record demonstrated that the permit "was issued in accordance with the applicable statute and regulations."
Appellants filed a Notice of Appeal. The NJDEP moved for a temporary remand to allow development of a complete factual record. We granted the temporary remand and stayed the permit during the remand proceedings. In re Mesquite Tower Consultants, No. A-5720-04T5, M-1626-05 (App. Div. Jan. 5, 2006). On remand, the NJDEP's Bureau of Coastal Regulation issued written findings addressing Appellants' objections. The Appellants' objections were rejected and the permit was reinstated.
Appellants contend before us that: (a) "the permit should be revoked or remanded for findings pursuant to N.J.S.A. 13:19-11 because of the purpose and intent of N.J.S.A. 13:19-2 and the effect on resource exhaustion[;]" and (b) "the permit should be revoked or remanded for further proceedings because the NJDEP waived applicable regulations." We disagree.
Appellants make the general argument that the permit must be revoked or remanded for further proceedings because the NJDEP "waived or failed to apply" numerous regulations that would have required it to deny the permit. We reject the arguments that the NJDEP misapplied its regulations. In each challenge, Appellants' arguments rest on either a mischaracterization of the applicable regulation or their own factual assertions, which are contrary to the NJDEP's findings.
It is well-settled that an agency's interpretation of its own regulations is entitled to substantial deference by a reviewing court. Mutschler v. N.J. Dep't of Envtl. Prot., 337 N.J. Super. 1, 14 (App. Div.), certif. denied, 168 N.J. 292 (2001). We will not reverse an agency decision unless: "(1) it was arbitrary, capricious, or unreasonable; (2) it violated express or implied legislative policies; (3) it offended the State or Federal Constitution; or (4) the findings on which it was based were not supported by substantial, credible evidence in the record." Univ. Cottage Club of Princeton New Jersey Corp. v. N.J. Dep't of Envtl. Prot., 191 N.J. 38, 48 (2007). Here, Appellants have presented no basis to reverse the NJDEP's decision.
Challenges Based On Location Of Project
Appellants specifically contend that the permit should have been rejected because the proposed telecommunication tower will be located: (a) on a bay island, contrary to N.J.A.C. 7:7-25(a)(1); (b) 30 feet from the mean high water line on a filled water's edge site, contrary to N.J.A.C. 7:7-25(a)(3); and (c) 30 feet from the mean high water line, contrary to N.J.A.C. 7:7-25(a)(3). We disagree.
Appellants argue that the permit was prohibited because the site is located on a bay island, and cell towers are not permitted on bay islands pursuant to N.J.A.C. 7:7-7.25(a)(1), which states that development of telecommunication towers "shall not be located in or on dunes, beaches, wetlands, bay islands, coastal bluffs or wild and scenic river corridors[.]" However, the NJDEP concluded that Chadwick Island was excluded from this regulation because it is listed in the exclusions set forth in N.J.A.C. 7:7E-3.21(a)(2). Appellants argue that Chadwick Island is a bay island for purposes of Chapter 7, and therefore, its listing in Chapter 7E is irrelevant. They rely on our opinion in In re Protest of Coastal Permit Program Rules, 354 N.J. Super. 293, 312 (App. Div. 2002), which identified "Chapter 7 and Chapter 7E as separate chapters of Title 7." We reject this argument.
Appellants are correct that N.J.A.C. 7:7E-3.21(a), which identifies bay islands and also specifies which islands, such as Chadwick Island, are excluded from that definition, states that the exclusion is "[f]or purposes of this chapter[.]" Appellants also are correct that Chapter 7 and Chapter 7E are separate chapters of Title 7. However, Appellants mischaracterize our comments in Coastal Permit Program Rules. In that case, we recognized that Chapter 7 contained the Coastal Permit Program (CPP) Rules and that Chapter 7E contained the CZM Rules. Coastal Permit Program Rules, supra, 354 N.J. Super. at 312. But, as we explained, "the CPP Rules contain the procedures for reviewing coastal permit applications and for enforcing violations. In contrast, the CZM Rules contain the substantive standards for determining development acceptability and the environmental impact of projects for which coastal permits are submitted." Ibid. Thus, we recognized that the purpose of the procedural requirements of Chapter 7 was to implement the substantive standards of Chapter 7E. Appellant's construction is mistaken.
The rules of statutory construction apply equally to judicial interpretation of a regulation. Medford Convalescent and Nursing Center v. Div. of Med. Assistance and Health Servs., 218 N.J. Super. 1, 5 (App. Div.), certif. denied, 102 N.J. 385 (1985). Specifically, the regulation should be construed "in a manner that makes sense when read in the context of the entire regulation." Ibid. The plain language of Chapter 7E makes it clear that that chapter's substantive regulations are intended to apply to decisions whether to grant the coastal permits that are considered under the procedural rules of Chapter 7.
We construe the regulation to provide that the exclusionary provision of N.J.A.C. 7:7E-3.21(a)(2) was properly applied by the NJDEP. Chadwick Island is not a bay island for purpose of the prohibition against telecommunication towers set forth in N.J.A.C. 7:7-7.25(a)(1).
We also reject Appellants' argument that the permit must be revoked because it contravened the setback requirements of N.J.A.C. 7:7-7.25(a)(3). This argument is based on Appellants' factual contentions regarding the setback area and their mischaracterization of definitions in related regulations, which are contrary to the NJDEP's findings. We conclude that the NJDEP's findings are grounded on a correct interpretation of the regulations and Appellants' are mistaken.
For example, Appellants argue that the permit contravened the 100-foot filled water's edge rule, N.J.A.C. 7:7E-3.23. However, N.J.A.C. 7:7-7.25(a)(3) requires that the development for telecommunication towers "shall be located a minimum of 50 feet landward of the mean high water line." There is an exception for sites defined as filled water's edge sites.
N.J.A.C. 7:7E-3.23. In that case, development shall be "located a minimum of 100 feet landward of the mean high water line[.]" N.J.A.C. 7:7-7.25.
Appellants' argument ignores the rule's distinction between the waterfront and non-waterfront portions of a site that contains filled water's edge. The "waterfront portion" is defined only as the area within 100 feet of the mean high water line. N.J.A.C. 7:7E-3.23(b). Restrictions on development apply solely to the waterfront portion, not the entire site. N.J.A.C. 7:7E-3.23(c)(1).
Based on their own calculations, Appellants further argue that none of the setbacks, including those on the south and west sides of the property, are sufficient for either the 100-foot setback requirement of the filled water's edge rule, or the alternative 50-foot setback requirement of N.J.A.C. 7:7-7.25(a)(3). Appellants' argument is based entirely on their inclusion of the utility and access easements on either side of the site as part of the project. This is a mistake because these areas are located outside the fenced area that will house the equipment cabinets and the tower. The NJDEP did not find that the easements were part of the project for purposes of calculating the setbacks or the area of disturbance. An agency's factual findings are presumed to be correct so long as they are supported by "sufficient credible evidence in the record as a whole." In re Adoption of Amendments and New Regulations at N.J.A.C. 7:27-27.1, 392 N.J. Super. 117, 135 (App. Div.) (quoting Bd. of Educ. of Englewood Cliffs v. Bd. of Educ. of Englewood, 257 N.J. Super. 413, 456-57 (App. Div. 1992), aff'd o.b., 132 N.J. 327, cert. denied, 510 U.S. 991, 114 S.Ct. 547, 126 L.Ed. 2d 449 (1993)), certif. denied, 192 N.J. 295 (2007). Thus, the regulations support the NJDEP's finding.
Filled Water's Edge Rule
Appellants' argue that the NJDEP failed to identify the waterfront portion of the filled water's edge site pursuant to N.J.A.C. 7:7E-3.23(b). We disagree with the flawed argument. It ignores the NJDEP's clear finding that only the east side of the property is a filled water's edge and that the other three sides are not because they were bulk headed and abutted manmade lagoons. Appellants' argument relies on a colloquial definition of "waterfront" rather than the one in the rule. Clearly, the property was bounded on three sides by water. However, the mere presence of water does not bring the abutting land on the south and west sides of the property within the rule's definition of "waterfront."
Appellants also contend that the issuance of the permit was contrary to various regulations. We reject all of these contentions for the reasons that follow.
Water Dependent Use
Appellants contend that the project contravenes N.J.A.C. 7:7E-3.23(c)(1)(i), which requires that the waterfront portion of a filled water's edge site be developed with a water dependent use. This argument is wrong on the facts. It is self-evident that the marina constituted an existing waterfront use on a filled water's edge site. The proposed project does not change this use.
Marina Services and Capabilities
Appellants contend that the project does not meet the requirements of N.J.A.C. 7:7E-3.23(e), which requires that marina services should be expanded and upgraded and boat storage capability must be maintained. Once again the facts of the proposed development belie this argument. The development would occur in an existing parking area. It would have no impact on the number of boat slips. It will disturb no part of the water dependent marina use that lies within the waterfront portion of the site as defined in N.J.A.C. 7:7E-3.23(b).
N.J.A.C. 7:7E-3.23(g) requires impervious cover limits and vegetative cover percentages. Appellants argue that the permit contravened these requirements because the NJDEP failed to address them in violation of N.J.A.C. 7:7E-5, -5A and/or -5B.
We reiterate that neither the impervious cover nor the vegetative coverage requirements applied under these circumstances. The proposed project is to be constructed on an existing parking lot.
Public Access to Waterfront
N.J.A.C. 7:7E-3.23(i) requires public access to the waterfront. The rule defines "public access to the waterfront" as "the ability of the public to pass physically and visually to, from and along lands and waters . . .[,]" "held in trust by the State for the benefit of all people[.]" N.J.A.C. 7:7E-8.11(a); N.J.A.C. 7:7E-3.50(a).
Here, the proposed project in no way implicates the public access considerations of the rule. The location of the tower and the equipment cabinets would be set back far enough to avoid any interference with the ability of the public to access the boat slips located along the property's waterfront.
Availability Of Waterfront Area For Water Activities
Appellants argue that the NJDEP ignored CZM policies, which require the availability of waterfront areas for water dependent activities. We disagree. The record shows that the NJDEP's decision promoted many of the policies behind the rules implicated in this application. For example, it served to "[m]anage commercial uses to reduce conflicts" by locating the tower within an already existing commercial area. N.J.A.C. 7:7E-1.1(c)(2)(ii). And, contrary to Appellants' contention, the NJDEP also "[e]nsure[d] the availability of suitable waterfront areas for water dependent activities" because the location of the tower and its accompanying outbuildings did not impede the use of the site's waterfront for its current water dependent use. N.J.A.C. 7:7E-1.1(c)(6)(i)(3). The decision to grant the application also provided enhanced access to cellular telephone capabilities, which promoted the "health, safety and welfare" of people who reside, work, and visit in the coastal zone. N.J.A.C. 7:7E-1.1(c)(6)(iv).
Priority of Resort/Recreation Uses
We reject Appellants' argument that the permit contravenes the policy set by N.J.A.C. 7:7E-7.3(b)(2) that resort/ recreational uses shall have priority over other uses in Ocean County. The existing marina constituted a resort/recreational use that already fully occupied the site. The conversion of a small portion of the parking area does not change the use of the property. The recreational marina use remains. The proposed development affected neither the number of boat slips nor the access to the waterfront.
Limit On Non-Water Dependent Uses
We also reject Appellants' argument that the NJDEP did not follow the policy set forth in N.J.A.C. 7:7E-7.3(d)(4), which provides: "Expansions of existing marinas shall be encouraged by limiting non-water dependent land uses that preclude support facilities for boating." Appellants argue that the proposed project "would cause a contraction of the existing development, the marina, by bringing onto the site a non-water dependent land use that would preclude support facilities for boating." Not so.
The conversion of part of the parking area did not preclude support facilities for boating. The plans for the project show that the great majority of the existing parking/storage area would remain undisturbed and available for use. Nor was there a showing that the conversion of a limited portion of the parking area would preclude or prohibit the necessary support facilities for the marina.
Appellants argue that the NJDEP ignored the policy set forth in N.J.A.C. 7:7E-7.3(d)(9), that the marina shall "comply with the design standards set forth in N.J.A.C. 7:7E-7.3A to the maximum extent practicable." We find no deviation from the policy. There are approximately 38 design standards set forth in section 7.3A. None of these standards, except one, are implicated by the proposed project to erect a tower and support buildings in the marina's parking lot. Therefore, the NJDEP did not err in failing to consider them. One standard pertains to parking areas. It requires that "[a]mple parking facilities shall be provided, with a minimum of 0.6 spaces per slip[,]" and states that "the number [of parking spaces] will range from 0.6 to 2.5 spaces per slip, depending on the nature of the marina." N.J.A.C. 7:7E-7.3A(a)(10). Appellants have made no showing that this standard would be compromised by the conversion of the portion of the parking area that would be required by the project.
Appellants further argue that N.J.A.C. 7:7-2.1(b) required the NJDEP to "review . . . the effect of the proposed development on the existing marina" because the marina "already exists on the site" and because the filled water's edge rule has specific rules for marinas. They contend that the NJDEP was required to conduct this review for both parcels that made up the marina lot. Appellants' one-paragraph argument on this point fails to identify which components of the development the NJDEP failed to review. As discussed above, no part of the development implicated the filled water's edge rule. We conclude that the NJDEP properly applied each of the rules that pertained to the development of telecommunication towers, and it reviewed those rules in the context of the entire property.
Consistent Policy to Regulate Development with CAFRA
Appellants also contend that the NJDEP failed to address the policy requirements of N.J.A.C. 7:7-2.1(b), which describes the NJDEP's interpretation of various terms related to the determination of whether a development falls within the aegis of section (a). Appellants also argue that Section 2.1(b) cannot be waived.
Appellants offer no specific arguments as to how the NJDEP's decision to grant the permit contravened this statute. They simply emphasize the statute's wording with respect to the "aesthetic and recreational interests" of the people in the State, and allege that the decision would "effectively dismantle" a recreational site.
However, no part of the record supports this allegation. In no respect can the project be understood as "dismantling" marina use. The installation of the tower and outbuildings will have no effect on the number of boat slips. There was no indication in the record that the marina intended to shut down or curtail its use in any way as a result of the installation.
Finally, Appellants contend that "the denial of the administrative hearing request by the Appellants was a denial of due process" because they had particularized property rights that emanated from the Public Access to the Waterfront Rule of N.J.A.C. 7:7E-8.11.
In general, an administrative hearing is required in an agency matter "only where a party is entitled to such a hearing by statutory or constitutional right." Spalt v. N.J. Dep't of Envtl. Prot., 237 N.J. Super. 206, 212 (App. Div. 1989), certif. denied, 122 N.J. 140 (1990). Appellants offer no argument as to the basis of their right to a hearing, aside from their claim that they had "particularized property rights and other special interests" that derived from the Public Trust Doctrine and the Public Access to the Waterfront Rule. Appellants had no statutory right to a hearing. In its current version, CAFRA requires only that the commissioner "set a date for either a public hearing or a public comment period" to be held not later than 60 days after the date the application was complete for filing purposes. N.J.S.A. 13:19-8(b) (emphasis added). In addition, The commissioner, or a member of the department designated by the commissioner, may hold a hearing to afford interested parties the opportunity to present, orally or in writing, their position concerning the filed application and any data they may have developed in reference to the environmental or other relevant effects of the proposed development. The department shall adopt rules and regulations which set forth the conditions under which a hearing is to be held. If no hearing is held, the department shall provide for a 30-day comment period and shall provide sufficient public notice as to the commencement of the comment period.
[N.J.S.A. 13:19-9(a) (emphasis added).]
The previous version of CAFRA had mandated a public hearing for permit requests, but a 1993 legislative revision of the Act "allows the commissioner to waive the requirement that a public hearing be held on a permit application for development in the coastal area." Assembly Env't Comm. Statement Senate, No. 1475-L.1993, c. 190. Thus, we conclude that Appellants have no statutory basis for their demand for a public hearing.
An individual has a constitutional right to a hearing if he or she can establish that there is a genuine dispute of material facts and, also, that he or she "has a constitutionally protected interest." In re Crowley, 193 N.J. Super. 197, 209 (App. Div. 1984). Such an interest derives from the "[p]articularized property rights or other special interests" that might be affected by the agency's decision. Cunningham v. Dep't of Civil Serv., 69 N.J. 13, 24 (1975); see also In re Application of North Jersey Dist. Water Supply Comm'n, 175 N.J. Super. 167, 203 (App. Div.), certif. denied, 85 N.J. 460 (1980).
However, "[f]ear of damage to one's recreational interest or generalized property rights shared with other property owners is insufficient to demonstrate a particularized property right or other special interest." Spalt, supra, 237 N.J. Super. at 212.
Here, Appellants have no more than a generalized property right shared with other inhabitants of Chadwick Island. They have made no showing that they have a particularized property right that would entitle them to a hearing.
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