Case Law Summaries

Ezyske v. New Jersey Department of Environmental Protection and Energy

• Opinion Date: July 17, 2000
• Real Property Law
• E-Mail

WATERFRONT DEVELOPMENT—The Department of Environmental Protection can refuse to grant a Waterfront Development Permit on the grounds that the project would harm sea grasses.

A petitioner was denied a Waterfront Development Permit to construct a dock within its riparian grant because the proposed construction would destroy submerged eelgrass. The petitioner took exception, arguing that the Department of Environmental Protection (DEP) may not deny a Waterfront Development Permit for purely environmental concerns, i.e. the destruction of eelgrass. Its argument was that the waterfront development law is concerned only with regulating commerce and navigation. The DEP argued that preserving eelgrass is not only an environmental concern. In fact, the Administrative Code states that the value of sea grasses was dramatically illustrated during the 1930s when a disease epidemic virtually eliminated eelgrass causing a drastic decrease in the number of finfish, shell fish, and water fowl. Therefore, the Commissioner of the DEP had no difficulty in finding that there was “clearly a substantial connection between destruction of eelgrass and commercial and recreational fishing in New Jersey.” Consequently, the Commission held that the DEP has the authority to deny a Waterfront Development Permit application should the DEP find that the proposed construction would adversely impact eelgrass. The destruction of eelgrass affects commerce and navigation, specifically New Jersey’s commercial and recreational fishing industry and tourist industry.

Copyright ©2003. Meislik & Meislik. All rights reserved.