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Hovsons, Inc. v. Department of Environmental Protection

OAL Dkt. No. ESA 00306-98S (Department of Environmental Protection 1999)

DEVELOPERS; PERMITS—Although the Department of Environmental Protection has the authority to conditionally approve CAFRA permits, use of such authority is discretionary, not mandatory.

A land developer applied for a Coastal Area Facility Review Act (CAFRA) permit to build 1,616 dwelling units and a 16,400 square foot recreational facility on an 800 acre parcel. The Department of Environmental Protection (DEP) denied the permit on the basis that the proposed development did not comply with a requirement of N.J.A.C. 7:7E-8.4(b) which provides that “coastal development which would violate the Federal Clean Water Act, or State laws, rules and regulations enacted or promulgated pursuant thereto, is prohibited.” Specifically, the DEP concluded that the proposed development would require the expansion of the existing sewer system which was not contemplated by a county’s Water Quality Management Plan (WQMP). The DEP reasoned that because the project was not in conformity with the WQMP, it could not issue a CAFRA permit. The developer requested a hearing to dispute the DEP’s position, and the matter was transferred to the Office of Administrative Law (OAL). At a hearing, the developer conceded that a permit could not be issued under the current WQMP; however, it cited statutory authority granting the DEP discretionary authority to conditionally approve the CAFRA permit. N.J.S. 13:19-11 provides that “. . . the [DEP] may deny the permit application, or . . . may issue a permit subject to such conditions as the commissioner finds reasonably necessary to promote the public health, safety and welfare . . .” In addition, Developer cited several cases which supported the concept of conditional approval. The OAL concluded that although the DEP may grant conditional approval, it is only in the DEP’s discretion to do so. The OAL distinguished the supporting case law from the instant matter by concluding that those cases warranted conditional approval because they involved “highly complex scientific knowledge and developments which were necessarily evolutionary,” or there was “no prudent or feasible or alternative site,” or it involved “engineering and technical considerations,” none of which was applicable here.


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