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John and Nancy Yoder v. New Jersey Department of Environmental Protection

October 6, 2011

JOHN AND NANCY YODER, PETITIONERS-APPELLANTS,
v.
NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, LAND USE REGULATION PROGRAM, RESPONDENT-RESPONDENT.



On appeal from the New Jersey Department of Environmental Protection, Agency Ref. No. 1530-04-0001.1.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 13, 2011

Before Judges Messano, Yannotti and Espinosa.

Appellants John Yoder (Yoder) and Nancy Yoder appeal from a final determination of the Commissioner (Commissioner) of the New Jersey Department of Environmental Protection (DEP or department), which upheld the revocation of a permit issued to appellants under the Coastal Area Facility Review Act (CAFRA), N.J.S.A. 13:19-1 to -21, to construct a single-family home on the property, and the disapproval of amendments to the Stafford Township (Township) Water Management Plan (WMP), adopted under the Water Pollution Control Act, N.J.S.A. 58:10A-1 to -60, and the Ocean County (County) Water Quality Management Plan (WQMP), adopted under the Water Quality Planning Act, N.J.S.A. 58:11A-1 to -16. For the reasons that follow, we affirm.

Appellants own property on Cedar Run Dock Road in the Township. The property is located within an area subject to regulation under CAFRA, which requires the issuance of a permit for certain construction projects. N.J.S.A. 13:19-5. The property is surrounded by protected wetlands, including salt marshes that comprise the Edwin B. Forsyth National Wildlife Refuge. The property also borders upon Cedar Run Creek, which the DEP has declared a Category One stream, which are waters designated by the DEP for purposes of implementing policies to protect against degradation. N.J.A.C. 7:9B-1.4.

In addition, the property is within the Pinelands National Reserve established by Congress, 16 U.S.C.A. § 471i(c). The area has been designated as a Forest Area under the Federal legislation. 16 U.S.C.A. § 471i(c); N.J.A.C § 7:50-5.12. The property is not within the planning jurisdiction of the Pinelands Commission (Commission) under N.J.S.A. 13:18A-11; however, the Commission is required to adopt a Comprehensive Management Plan (CMP) as to any part of the Pinelands National Reserve, including areas within the Reserve that lie outside of its planning jurisdiction. See N.J.S.A. 13:18A-8.

Prior to 1993, the developed lots on Cedar Run Dock Road had septic systems. Those systems began to fail in the late 1980's and early 1990's, and there were concerns about the impact such failures would have on the environment in the surrounding areas. To address these concerns, the Township and County proposed the construction of a public sewer line in the area.

In 1989, the Township and County adopted a proposal to amend the Township's WMP and the County's WQMP and forwarded the plan to the DEP for review. The proposed amendments allowed construction of the sewer line but limited connections to existing residential and commercial developments. The DEP sought comments on the proposal from the Pinelands Commission (Commission), as required by N.J.A.C. 7:15-3.7. The Commission informed the DEP that its CMP policy indicated that sewer service should be provided in the area "only if there is a demonstrated health problem, and then only to serve existing development." The DEP approved the proposed amendments.

Thereafter, the Township requested that the DEP issue a CAFRA permit for construction of the sewer line. On January 18, 1993, the DEP granted the permit, subject to several conditions. The permit stated that "[s]ewer service can be provided to existing residential and commercial development by individual grinder pump and lateral to [several listed] properties only." The permit also stated that:

Any additional proposed sewer service tie ins or construction of laterals to the approved force main must receive a modification in detail to this CAFRA permit . . . and an amendment to the Ocean County Areawide Water Quality Management (208) Plan . . . prior to providing service.

At the time the permit was issued, George Hulse owned the subject property. The only structure on the lot was a storage shed. The property did not have a septic system or plumbing. The property also was not among the forty-three lots identified in the CAFRA permit.

In 2003, Hulse entered into a contract to sell the property to Gabriel Castrovilly (Castrovilly) and Beth Holmes (Holmes).

The sale was conditioned upon Castrovilly and Holmes obtaining permits required to build a new home on the lot. Castrovilly and Holmes hired Yoder to prepare an ...


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