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In re Mesquite Tower Consultants

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.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

Findings/Waiver

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 ...


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