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McGovern v. Borough of Harvey Cedars

401 N.J. Super. 136, 949 A.2d 302 (App. Div. 2008)

COASTAL PROTECTIONS — New Jersey’s coastal protection statutes are not intended to preempt local development regulations or to prevent municipalities from providing greater protections for dunes and coast lines than the state’s statutes provide.

A homeowner sought to construct a swimming pool on his oceanfront property between his house and the beach. The application was denied by the municipality because the proposed pool was located in a zone in which construction was banned by ordinance. One year later, he again pursued the matter and obtained state approval under coastal protection statutes. After the municipality again denied approval in accordance with the ordinance banning construction, the homeowner brought an action against the municipality. The lower court denied his claims and rejected his argument that obtaining state approval preempted the municipality’s denial of his proposal.

On appeal, the Appellate Division rejected the homeowner’s argument that the ordinance violated state and federal due process protections and found that the ordinance was adopted following a storm that destroyed much of the coastline and was reasonably designed to protect the health and safety of the general public. The homeowner’s argument that the ordinance was preempted by state approval of his proposal under the coastal protection statutes was also rejected by the Court, which pointed out that coastal protection statutes were intended only to protect coastal areas and to regulate environmentally appropriate development. The Court found that this ordinance was not intended to preempt local development regulations and that the coastal protection statutes were not intended to prevent municipalities from providing greater protections for dunes and coastlines. Based on the Court’s findings and conclusions, the municipality’s denial of the homeowner’s request to construct a swimming pool was affirmed.


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