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Seven Mile Island, L.L.C. v. Planning Board of Borough of Avalon

A-5270-07T3 (N.J. Super. App. Div. 2009) (Unpublished)

ZONING; CAFRA — The Coastal Area Facility Review Act does not preempt local zoning so long as the local zoning is consistent with or more stringent than CAFRA.

As a result of repeated storm damage, a barrier island municipality enacted an ordinance aimed at protecting its beaches and sand dunes. The municipality also has had an agreement with the State Department of Environmental Protection (DEP) under which the DEP provided the municipality with beach replenishment funds, in return for which the agency required the municipality to: (a) maintain its beach protection ordinance; (b) submit all proposed amendments to the DEP for approval; (c) comply with the DEP’s substantive Coastal Area Facility Review Act (CAFRA) regulations; (d) submit all development proposals and variance applications to the DEP for comments and follow the DEP’s comments; and (e) prohibit the construction of swimming pools, tennis courts or similar structures in the dune area. Certain amendments were enacted to the municipality’s ordinance to which the DEP approved. These amendments: (x) prohibited the construction of swimming pools; and (y) revised certain portions of the beach protection ordinance and landscaping amendment. The owner of a large oceanfront lot challenged the validity of the amended ordinance when it sought to demolish an existing house on its property and build a house, deck, and swimming pool. The owner received approval from the DEP to build the house and swimming pool pursuant to a settlement agreement which specifically provided that the property owner obtain all other necessary local, state, and federal permits. Its lawsuit against the municipality contended that the ordinance was preempted by CAFRA, was inconsistent with the Municipal Land Use Law (MLUL), and lacked clear standards, and was arbitrary and unconstitutional.

The lower court dismissed the complaint, concluding that the ordinance was not preempted by CAFRA, but it declined to address the additional challenges because the property owner had not filed an application for municipal approvals under the provisions it was challenging. The property owner appealed.

The Appellate Division temporarily remanded the case to adjudicate the owner’s facial challenges to the ordinances. On remand, the lower court held the swimming pool ban to be facially invalid relying on the fact that the DEP had approved the swimming pool. It rejected the owner’s facial challenges to the other portions of the beach protection ordinance and the landscaping amendment. Both parties appealed.

The Appellate Division affirmed the lower court’s decision upholding the beach protection ordinance and landscaping amendment, and reversed the decision invalidating the pool ordinance. It held that the beach protection ordinance and the landscaping amendment were proper exercises of the municipality’s police powers, and were neither void for vagueness nor preempted by CAFRA or the MLUL. Because the barrier islands previously had suffered devastating storm damage, the Court agreed with the lower court that the municipality’s beach protection ordinance represented a rational use of the municipality’s police powers. As to the CAFRA preemption claims, the Court held that CAFRA did not preempt local zoning so long as the local zoning is consistent with, or more stringent than, CAFRA, as was the case here. Moreover, it noted that CAFRA did not preclude municipalities from using their police powers to protect their dunes. It also agreed with the lower court that the beach protection ordinance was a proper exercise of the municipality’s police powers aimed at protecting the dunes, and was not a zoning ordinance requiring site plan approval.

On the other hand, the Court disagreed with the lower court that the pool ordinance was facially invalid. It ruled that the lower court’s holding was inconsistent with the “very significant deference” due the municipality’s judgment in adopting the ordinance. It perceived nothing irrational in the municipality’s decision to adopt the pool ordinance as a condition of obtaining DEP funding for beach replenishment. Further, it ruled that a ban on pool construction in an environmentally sensitive area is rationally related to an important public purpose. Thus, it held that even if the house was the last one in the area without a swimming pool, it would be rational to try to protect whatever was left of the dunes. Finally, it opined that it was the municipality’s prerogative to construe its own legislation, including whether to construe the pool ordinance as permitting exceptions in limited circumstances consistent with its underlying purpose. It refused to anticipate the municipality’s decision on this issue and deemed the matter not ripe for adjudication.

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