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Bradley v. New Jersey Department of Environmental Protection

OAL Dkt. No. ESA 2012-03 (Department of Environmental Protection 2004) (Unpublished)

ENVIRONMENTAL PROTECTION; CAFRA; PERMITS—A CAFRA permit application filed by a person who does not have any real interest in obtaining the environmental permit is not a valid application because it is inaccurate and may mislead neighboring property owners.

An applicant and a property owner, together, submitted a general CAFRA permit application to the New Jersey Department of Environmental Protection (DEP). The DEP’s Land Use Regulation Program denied the application because it did not satisfy the coastal general permit rules. The Department, however, told the applicant that the proposed project would require an individual CAFRA permit and provided him with the appropriate application package. No individual permit application was ever filed. Instead, the applicant filed a request for an adjudicatory hearing.

The applicant’s attorney then filed a motion for summary decision on behalf of another individual, who had not been a party of record in the proceedings. In an accompanying certification, this individual certified that he was the new owner of the site and that he had purchased the property from the owner named in the original permit application. The new owner further certified that he had filed the original application using the name of the applicant. The applicant was discovered to be an employee of the new owner and the new owner had chosen not to submit the application in his own name because of a bad relationship with an adjacent lot owner. The new owner had not recorded the deed that allegedly conveyed title. Thus, neither the public record nor the application filed with the Department provided any notice of the new owner’s original interest in the property.

N.J.A.C. 7:7-7.3(a)(1) requires that a person proposing to engage in an activity covered by a coastal general permit submit a completed LURP application form. The LURP application form requires signatures and certifications from both the applicant and the property owner. In this case, the LURP application was signed and certified by the applicant. However, he had no interest in the site. The new owner certified that he submitted the application using the applicant as a “straw-man,” and that he was actually the person seeking the permits. In addition, although the application was signed by the previous owner, there was no official record of a transfer of title to the alleged new owner.

The new owner argued that the regulatory requirements were satisfied because a complete application was submitted with an applicant’s name and the name of the property owner of record, i.e., the original owner. The Administrative Law Judge (ALJ) noted, however, that neither the applicant nor the owner had any real interest in obtaining DEP permits for the site. After the DEP granted the applicant’s hearing request, the applicant’s counsel began to substitute the new owner’s name as the petitioner in the matter without any formal application. On the face of the application, however, it was not the new owner who had applied for the CAFRA permit and who had requested a hearing. Therefore, the CAFRA application was inaccurate and was intended to mislead neighboring property owners. According to the ALJ, submission of false or misleading information to a government agency cannot be tolerated. Therefore, the ALJ held that the owner’s application failed to comply with N.J.A.C. 7:7-7.3(a)(1). DEP’s Commissioner adopted the ALJ’s ruling.

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