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Carel-Jobin Enterprises, L.L.C. v. New Jersey Department of Environmental Protection

A-882-03T2 (N.J. Super. App. Div. 2004) (Unpublished)

ENVIRONMENTAL PERMITS; COASTAL ZONE MANAGEMENT—The Department of Environmental Protection has the authority to promulgate and enforce interim coastal center boundaries.

A landowner sought approval from a local planning board to build an apartment complex. The owner obtained preliminary major site plan approval. It was contingent upon a memorializing resolution. Before the resolution was adopted, the Department of Environmental Protection (DEP) amended its Coastal Zone Management (CZM) Rules. The DEP adopted the existing State Plan Map as the basis for its Coastal Area Facility Review Act (CAFRA) Planning Map. The Planning Map designated the section of the municipality where the owner’s land was located as a coastal fringe planning area, which is a buffer between more developed and less developed planning areas. Development in such areas is restricted to the center portions. The boundary of the coastal center bisected the owner’s land, making 5/6 of it, including all of the proposed apartment building lots, part of the coastal fringe planning area. Essentially, further development was precluded.

The owner petitioned the DEP for rulemaking, asking the DEP to redraw the boundary to enable construction of the apartment complex. The DEP denied the application, stating that it had developed and adopted the coastal boundaries as interim boundaries to allow for appropriate development of the CAFRA area until the subject municipalities could participate in the State’s Development and Redevelopment Plan. The rules were clearly intended to be interim and would expire on February 7, 2005.

On appeal, the owner argued that the DEP’s position that the property-owning public could not petition the DEP to amend the boundaries of the coastal center was ultra vires as it directly conflicted with N.J.S.A. 52:14B-4(f) which specifically permits individuals to seek to have a state agency amend its rules. The Appellate Division disagreed. A party challenging the validity of a regulation bears the burden of establishing that the regulation is arbitrary, capricious or unreasonable. The Court decided that the owner failed to meet this burden, holding that the DEP’s decision not to continue to delineate new centers or to redelineate centers by rule was not ultra vires, but rather was a reasonable resolution to execute and manage its complex regulatory CAFRA scheme. DEP had determined that it would not revise the boundaries of the coastal center because the center was adopted as an interim measure, pending formal action by the State Planning Commission to delineate formal center boundaries in the CAFRA area. In addition, DEP determined that because the municipality was working to develop formal center boundaries through the State Planning Commission process, the owner had the opportunity to participate in that process as an alternative to unilateral expansion of the coastal center by DEP.

The Appellate Division concluded that DEP’s decision was a reasonable exercise of sound executive-branch planning discretion. The coastal centers were only interim, pending formal action and center delineations by the State Planning Commission. The boundaries would expire in 2005 and those areas would be treated as other land categories in the State Plan and would be subject to public comment and contest. Moreover, the owner had an opportunity to contest the temporary coastal center boundaries at the time the boundaries were proposed, and had the opportunity to participate in delineating the formal boundaries on the State Planning Map and the CAFRA Planning Map. The coastal centers were proposed in 1998. A public notice published in the New Jersey Register and set out the process by which municipalities could identify to the State Planning Commission locations that should be considered for delineation as coastal centers for purposes of the proposed new rules. The DEP also announced this opportunity in notices sent to municipalities in the CAFRA area, held four public hearings on the proposal, and issued press releases and other public statements. Finally, CAFRA regulations provide the owner ample future opportunity to actively participate in the official boundaries that the CAFRA Planning Map would be established.

For those reasons, the Appellate Division affirmed the DEP’s decision to deny the owner’s application for a rule change.

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