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Rice v. Borough of Avalon

August 6, 2008

MICHAEL AND JANE RICE, PLAINTIFFS,
v.
BOROUGH OF AVALON, DEFENDANTS.
SAVE AVALON'S DUNES, L.L.C., AND ELAINE SCATTERGOOD, PLAINTIFFS-APPELLANTS,
v.
MICHAEL AND JANE RICE, BOROUGH OF AVALON AND STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Cape May County, Docket Nos. L-625-06 and L-704-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 23, 2008

Before Judge Cuff, Lihotz and Simonelli.

These actions were consolidated by the trial court.*fn1

In the first matter, plaintiffs Michael and Jane Rice (the Rices) filed a complaint in lieu of prerogative writs against the Borough of Avalon (Avalon) seeking a permit to construct a swimming pool. The trial court granted summary judgment to the Rices. No appeal has been taken from that order.

The second captioned case is the matter under review. Plaintiffs Save Avalon's Dunes, L.L.C. and Elaine Scattergood (collectively SAD) seek (1) to invalidate a 2001 Stipulation of Settlement (Settlement) between the Department of Environmental Protection (DEP) and the Rices that included a Coastal Area Facilities Review Act (CAFRA), N.J.S.A. 13:19-1 to -21, permit, and (2) to enjoin construction of the Rices's proposed five-story, forty-room residence and swimming pool in a dune area. SAD pursues its position on behalf of the citizens of Avalon pursuant to N.J.S.A. 2A:15-18.*fn2 Although injunctive relief was denied, the Law Division reserved the power to order any construction removed.

On January 29, 2007, Judge Perskie, "decline[d] to exercise whatever jurisdiction [the court] may have[,] in favor of plenary exercise of jurisdiction by the Appellate Division," and entered an order transferring the matter to this court pursuant to Rules 1:13-4 and 2:2-3(a)(2). Additionally, he ordered that the issuance of the permit to construct the swimming pool was predicated on the validity of the CAFRA permit, "so in the event of a later determination of invalidity, the [Rices] are proceeding at their own peril."

Respondents argue the appeal is untimely. SAD disagrees for several reasons. First, SAD maintains the Settlement was an informal agency action and not a final agency action subject to appeal. Second, the CAFRA permit must be invalidated because DEP made no findings of fact to support its issuance. Third, the DEP action violated a pre-existing agreement with Avalon, which prohibited construction of swimming pools in the dune area. Finally, the DEP has not complied with its procedures and failed to provide notice of its action to interested parties, as required by N.J.A.C. 7:6-5.4; absent notice, the time to appeal has not expired. We are not persuaded by SAD's arguments and dismiss the appeal.

The Rices purchased realty located as 5299 Dune Drive, Avalon, designated as Block 52.03, Lots 1, 3, 5, 7, 9, 11 and 13 and Block 52.05 Lots 1 to 5 (the property). The property is 44,100 square feet. The Rices sought to remove the existing dwelling and proposed construction of a single-family home, pool, accessory buildings, brick driveway and terrace.

In February 1999, the Rices filed an application for a CAFRA permit with the DEP. Notice of the filing was given to Avalon, the Avalon Zoning/Planning Board (Board), the Borough of Avalon Environmental Commission (Commission), the Cape May County Planning Board, the Borough of Avalon Construction Official, and homeowners located within 200 feet of the property.

Only the Commission responded. After the Commission held a public hearing, it submitted its concerns to the DEP, which included the need for run-off holding areas, modification of the driveway design, more limited removal of vegetation, reduction of the overall size of the structure, addressing the construction's impact on wildlife habitats, and mitigation of tree damage due to the use of heavy equipment. Also, the Commission highlighted that the Rices's plan to construct a swimming pool violated Section 1(b) of a 1994 State Aid Agreement (Agreement) between the DEP and Avalon. Although swimming pools are a permitted accessory use in the R-1AA zone, pursuant to § 27-6.2(A)(3)(c) of the Avalon Zoning Ordinance, the Agreement focused on maintaining public access to the waterfront, the preservation of beaches and dunes, and limiting erosion in hazard areas. The Agreement provided Avalon would receive state funding for beach restoration if it abided by the guidelines that prohibited construction of swimming pools in the high dunes area.

The DEP denied the Rices's CAFRA permit request on June 10, 1999, stating "[t]he proposed development will cause disturbance of the dune." See N.J.A.C. 7:7E-3.16. An aggrieved party may request a hearing before the DEP Commissioner within ten days of publication of the final decision denying a CAFRA permit.

N.J.S.A. 13:19-13 and N.J.S.A. 13:19-13.1. The Rices submitted a request for review, and the matter was certified as a contested case to be heard by the ...


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