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Yoder v. New Jersey Department of Environmental Protection

A-6243-09T4 (N.J. Super. App. Div. 2011) (Unpublished)

CAFRA — Where a Water Management Plan has been approved to allow sewer connections only to existing developments, a property containing only a shed is not entitled to such a connection because it does not need a sewer line nor a septic tank and consequently does not constitute an existing development.

A property was subject to the Coastal Area Facilities Review Act (CAFRA). It was surrounded by wetlands and wildlife. Before 1993, the developed lots in the area had septic tanks, but failures in the tanks led the municipality to propose amendments to its Water Management Plan (WMP) conditioned on allowing a sewer line connection only to the existing development. The Department of Environmental Protection (DEP) approved the amendments and the municipality successfully applied for a CAFRA permit to construct the sewer line.

The property at issue housed a small shed, but was not within the 1993 CAFRA permit area. Therefore, in 2004, the property owners applied for a CAFRA permit to build a single family home. The application erroneously stated that the lot was serviced by the city sewer. The DEP granted the permit, but then revoked it after learning that the statement about the city sewer was false. The property owner then sought to have the lot connected to the existing sewer line. Its request was denied. The owner also sought to amend the WMP to allow connection to the sewer line for the proposed single family home, but the DEP denied that application as well. The property owner appealed, arguing that the DEP’s decisions were arbitrary and capricious.

The Appellate Division first considered whether the DEP’s denial of the owner’s application to allow connecting the proposed single family home to the sewer line under the 1993 CAFRA permit was erroneous. The owners argued they should be able to connect to the sewer line because the 1993 CAFRA permit allowed a sewer line connection to existing developments and the property had a shed on it at that time. The owners also argued that the DEP’s denial of their application to amend the WMP was arbitrary and capricious.

The Court held that the denial of the application to amend the WMP was proper because the shed did not constitute an existing development. Further, the shed did not need a sewer line nor did it have or need a septic tank, which was the only reason why the 1993 CAFRA permit was issued. The Court also held that DEP’s denial of the property owner’s application to amend the WMP was not arbitrary and capricious because the lot could be considered “environmentally sensitive” and, as such, would not otherwise qualify for inclusion. It commented that allowing the property owner to tie into the sewer line would undoubtedly have opened the door to other development in the area which, in the cumulative, would have a negative impact on the environment.

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