Tumino v. Long Beach Township

319 N.J. Super. 514, 725 A.2d 1173 (App. Div. 1999)
  • Opinion Date: March 24, 1999

ENVIRONMENTAL REGULATIONS—State coastal zone management regulations preempt municipal regulation of docks and wharves.

This was an appeal to determine whether regulations governing coastal zone management, promulgated by the New Jersey Department of Environmental Protection (DEP) pursuant to the Waterfront Development Act, preempt a local ordinance governing the placement and length of a dock. The lower court concluded that a municipality’s denial of a permit to construct a dock was preempted by State law and reversed the decision denying the permit application. The Appellate Division agreed. The property owner had submitted an application for a waterfront development permit to DEP and proposed to remove and replace an existing dock, breakwater, and bulkhead. The proposed dock would have extended 215 feet into the water. Its length was governed by a need to have a minimum water depth of four feet at the point where boats are moored. After some back and forth with DEP, the proposed dock was authorized. Upon receipt of its DEP permit, the property owner submitted an application to the municipality’s Docks and Wharves Committee (DWC) pursuant to municipal ordinance, for a local permit for the same project approved by DEP. At the public hearing that followed, seven neighboring property owners testified in opposition to the project based on a perceived threat to public safety. At the conclusion of testimony, the DWC rejected the application because it believed that the length of the dock created a danger to jet skiers and boaters. In the appeal of that board’s decision, the lower court held that a municipality cannot contradict a policy established by the Legislature. “An ordinance will be invalid where it expressly forbids something which is expressly authorized by a statute or permits something which the statute expressly proscribes.” After examining traditional tests for preemption, the lower court, looking at the state law requiring any private person desiring to construct a dock to apply for a state permit, held that state law preempted the municipal requirements. In addition, the lower court pointed to DEP’s rules that required it, when reviewing an application for a waterfront development, to consider “various conflicting, competing and contradictory local . interests.” After examining the state’s regulatory framework, the Court concluded that the elaborate state statutory scheme occupied the field of coastal zone management issues, thereby preempting attempts by municipalities to regulate the same concerns.