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Seigel v. New Jersey Department of Environmental Protection

395 N.J. Super. 604, 930 A.2d 461 (App. Div. 2007)

DUNES; SLOPE; DEFINITIONS —Where dune regulations lack any definition of a “relative steep” slope, the definition of “relatively” will be its plain meaning and a court may consider the slope of particular dune in comparison to the slope of nearby dunes.

A property owner and her mother owned a beachfront lot with a single family house. She sought to build a second house on her property. Her surrounding neighbors had done the same thing. The house faced the street and the proposed second house would have faced toward the beach. The New Jersey Department of Environmental Protection (NJDEP) denied the property owner’s request and determined that the eastern portion of her property, which was closest to the beachfront, was on a dune and that the proposed second house would have been located in a coastal high hazard area.

In her administrative appeal, the property owner testified that the area for the proposed second house was flat and the dune was demarcated by a sand fence that was built along the easternmost boundary of her property. She also testified that the proposed second home would have better accommodated her aged and ill mother and that the previous summer a nearby property had been reconstructed and built into the dune. An attorney who was familiar with the area and with local land use law in the municipality testified on behalf of the property owner that the lot had nearly twice the amount of open land necessary for the construction of a second home and that subdividing the lot would not have been necessary. An environmental expert testified for the property owner that the presence of significant amounts of gravel indicated that the area in question was man-made and not the result of natural dune formation and also that since that area appeared to be flat, the area for the proposed second home was not on a dune at all, and therefore was not in the coastal high hazard area. The environmental expert also testified that even if the house was in the coastal high hazard area, extensive development that surrounded the property owner’s lot allowed for an infill exception and that a second home’s construction would not have been detrimental to the dune structures.

A NJDEP official testified that the entirety of the property owner’s lot was on a dune and that the existing home was built into a pre-existing dune. The official also testified that the infill exception did not apply because the property owner’s lot had never been subdivided. The administrative decision upheld the finding of the NJDEP and agreed with the NJDEP official that the infill exception did not apply because there was no evidence that the lot had ever been subdivided. The decision also stated that the NJDEP appropriately balanced the economic impact on the property owner with the benefits of protecting oceanfront sand dunes. The decision did note that it was not made in consideration of equity or public policy and that nothing in the ruling prevented the property owner from expanding her existing house.

On appeal, the Appellate Division pointed out that administrative agencies, such as the NJDEP are entitled to deference in their factual findings and interpretations of statutes but that approval of their decisions is not automatically granted. The Court also pointed out that a single family home or a duplex did not have to conform to dune regulations if was built on the landward slope of a secondary or tertiary dune and that such houses had considerably less impact on the coastline in comparison to larger developments.

Here, the Court disagreed with the NJDEP’s construction of the definition of a “relatively steep” slope and pointed out that the regulations lacked of any definition of “relatively” other than its plain meaning. It found that the slope landward of the frontal dune was not steep in comparison, or relative, to the steep slope of the frontal dune or to the slope of any of the surrounding properties, and that since the entire property was not built on a frontal dune, dune regulations did not apply to the area where the property owner wanted to build a second house. The Court also found that the NJDEP’s suggested alternative measures that the property owner could have taken such as expanding the existing house or buying another property, were not practical or feasible. It noted that even if the entire property was located in a frontal dune, it did not see how the construction of a single family home would have had a particularly adverse impact. Thus, the Court reversed and remanded the decision for a determination that was consistent with the its findings.

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