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Douglas Fay v. New Jersey Department of Environmental Protection


April 11, 2012


On appeal from the New Jersey Department of Environmental Protection, Agency Ref. No. 1528-02-0001.1.

Per curiam.


Argued March 21, 2012 -

Before Judges Fuentes, Koblitz and Haas.

Petitioner Douglas Fay appeals from the final agency decision of the Department of Environmental Protection ("DEP") that denied his application for an individual permit under the Coastal Area Facility Review Act ("CAFRA"), N.J.S.A. 13:19-1 to -21. We affirm.

Petitioner sought the permit to reconstruct and expand a single family home and construct a new deck on oceanfront property he owns in the Borough of Ship Bottom. After review, DEP staff denied the application pursuant to N.J.A.C. 7:7E-3.16(b). Under this regulation, "[d]evelopment is prohibited on dunes, except for development that has no practicable or feasible alternative in an area other than a dune, and that will not cause significant adverse longterm impacts on the natural functioning of the beach and dune system . . . ." Id. DEP found that petitioner's property is located entirely within a dune and that he had practicable and feasible alternatives to complete his project within the footprint of the existing structure on the property.

Petitioner requested that the matter be referred to an Administrative Law Judge ("ALJ") for a contested case hearing. The ALJ heard the testimony of petitioner and his expert witness, David Roth, an environmental consultant. DEP presented expert testimony from Eric Virostek, a senior geologist in the agency's CAFRA program. The ALJ issued an initial decision recommending that DEP's denial of the permit be reversed. The ALJ found that petitioner's property is a dune and, therefore, the "dune rule" set forth in N.J.A.C. 7:7E-3.16(b) applied. However, the ALJ concluded that petitioner had "no practicable or feasible alternative" to reconstruct a home and construct a deck on any portion of the property that was not a dune.

Petitioner and DEP filed timely exceptions. In a comprehensive decision, the DEP Commissioner reversed the ALJ's recommendations and denied the permit application.

The Commissioner agreed that petitioner's property is a dune. A "dune" is "a wind or wave deposited or man-made formation of sand (mound or ridge), that lies generally parallel to, and landward of, the beach and the foot of the most inland dune slope." N.J.A.C. 7:7E-3.16(a). Based upon the expert testimony presented by both parties, the Commissioner found that the property had a fairly-steep and continuous slope running from the dune crest through the entire property. Photographs of the property also showed that there was dune vegetation on the undeveloped portion of the dune.

The Commissioner also found that practicable and feasible alternatives existed for petitioner's construction. The Commissioner found that such alternatives existed. By obtaining a CAFRA Coastal general permit, petitioner could reconstruct and modernize the home within its existing footprint. In doing so, he could expand the dwelling by enclosing the existing decks and making them part of the home. See N.J.A.C. 7:7-7.9(d)(4) (permitting development on a dune if the development involves the enclosure of an existing deck). Because the construction of a deck on a dune is not prohibited under CAFRA, petitioner could also construct a new deck adjoining the expanded property. N.J.A.C. 7:7-2.1(c)(5). In addition, the Commissioner found that petitioner could explore expanding the home vertically, if such an expansion was permitted by the municipality, either through its zoning regulations or a variance process.

Because the property is a dune and because there are practical and feasible alternatives to the proposed development, the Commissioner denied petitioner's application for an individual permit. On appeal, petitioner argues that the Commissioner's final decision is arbitrary, capricious and unreasonable. He disputes the Commissioner's finding that the property is a dune and he contends that, if it is a dune, there are no alternatives to the construction he has proposed. We are not persuaded by these arguments and, therefore, affirm.

When error is alleged in the factfinding of an administrative agency, the scope of appellate review is "a limited one." In re Taylor, 158 N.J. 644, 656 (1999) (quoting Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587 (1988)). We decide only whether the findings made could reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole. Ibid. We will not upset the ultimate determination of an agency unless it is shown that it was arbitrary, capricious or unreasonable, or that it violated legislative policies expressed or implied in the Act governing the agency. Siegel v. N.J. Dep't of Envtl. Prot., 395 N.J. Super. 604, 613 (App. Div.), certif. denied, 193 N.J. 277 (2007). "The fundamental consideration in reviewing agency actions is that a court may not substitute its judgment for the expertise of an agency so long as that action is statutorily authorized and not otherwise defective because [it is] arbitrary or unreasonable." In re Distrib. of Liquid Assets, 168 N.J. 1, 10 (2001) (citation omitted) (internal quotation marks omitted).

Where an agency's expertise is a factor, we will defer to that expertise, particularly in cases involving technical matters within the agency's special competence. In re Freshwater Wetlands Prot. Act Rules, 180 N.J. 478, 489 (2004). This deference is even stronger when the agency, like the DEP, "has been delegated discretion to determine the specialized and technical procedures for its tasks." City of Newark v. Natural Res. Council in the Dep't of Envtl. Prot., 82 N.J. 530, 540, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980). Moreover, [w]hen an administrative agency interprets and applies a statute it is charged with administering in a manner that is reasonable, not arbitrary or capricious, and not contrary to the evident purpose of the statute, that interpretation should be upheld, irrespective of how the forum court would interpret the same statute in the absence of regulatory history.

[Reck v. Dir., Div. of Taxation, 345 N.J. Super. 443, 449 (App. Div. 2001), aff'd, 175 N.J. 54 (2002) (quoting Blecker v. State, 323 N.J. Super. 434, 442 (App. Div. 1999)).]

Applying that standard here, we conclude that an affirmance is warranted. Considering the proofs as a whole, there is sufficient credible evidence in the record to support each of the findings he made. It is not our function to substitute our independent judgment on the facts for that of an administrative agency. In re Grossman, 127 N.J. Super. 13, 23 (App. Div.), certif. denied, 65 N.J. 292 (1974). The factfinder is the Commissioner whose expertise in this matter is entitled to deference. Therefore, we affirm substantially for the reasons expressed by the Commissioner in his comprehensive final agency decision.



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