pinelands-preservation-alliance-and-michael-perlmutter-v-state-of-new ( 2014 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4880-11T2
A-4883-11T2
PINELANDS PRESERVATION ALLIANCE
and MICHAEL PERLMUTTER,
Appellants, APPROVED FOR PUBLICATION
v. June 3, 2014
APPELLATE DIVISION
STATE OF NEW JERSEY DEPARTMENT
OF ENVIRONMENTAL PROTECTION and
JAYLIN HOLDINGS, LLC,
Respondents.
__________________________________
IN THE MATTER OF THE DEPARTMENT
OF LAND USE REGULATION ISSUANCE
OF PERMIT NOS. 1500-04-0001.1,
APL080001, FWW090001.
___________________________________
Argued March 24, 2014 - Decided June 3, 2014
Before Judges Parrillo, Harris, and
Guadagno.
On appeal from the New Jersey Department of
Environmental Protection, Permit Nos. 1500-
04-0001.1, APL080001, FWW090001.
Ronald S. Gasiorowski argued the cause for
appellants Pinelands Preservation Alliance
and Michael Perlmutter (A-4880-11)
(Gasiorowski & Holobinko, attorneys; Mr.
Gasiorowski and Christie A. Gasiorowski, on
the briefs).
Aaron Kleinbaum argued the cause for
appellants New Jersey Conservation
Foundation, American Littoral Society,
Sierra Club - New Jersey Chapter, and Save
Barnegat Bay (A-4883-11) (Eastern
Environmental Law Center, attorneys; Mr.
Kleinbaum, of counsel and on the briefs;
Alice R. Baker, on the briefs).
William F. Harrison argued the cause for
respondent Jaylin Holdings, LLC (No. A-4880-
11) (Genova, Burns, Giantomasi, Webster,
LLC, attorneys; Mr. Harrison, of counsel;
Cynthia L.M. Holland and Erin K. Phalon, on
the brief).
Lewin J. Weyl, Deputy Attorney General,
argued the cause for respondent New Jersey
Department of Environmental Protection in
(A-4880-11 and A-4883-11) (John J. Hoffman,
Acting Attorney General, attorney; Melissa
H. Raksa, Assistant Attorney General, of
counsel; Jung W. Kim, Deputy Attorney
General, on the briefs).
The opinion of the court was delivered by
PARRILLO, P.J.A.D.
In these back-to-back appeals, which we have consolidated
for purpose of this opinion, a coalition of environmental
interest groups1 and local interested parties2 challenge a permit
granted by the New Jersey Department of Environmental Protection
(DEP) to respondent, Jaylin Holdings, LLC (Jaylin), under the
Coastal Area Facility Review Act (CAFRA), N.J.S.A. 13:19-1 to
1
New Jersey Conservation Foundation, American Littoral Society,
Sierra Club - New Jersey Chapter, and Save Barnegat Bay (A-4883-
11) (collectively EELC or Eastern Environmental Law Center).
2
The Pinelands Preservation Alliance (PPA) and Michael
Perlmutter (A-4880-11).
2 A-4880-11T2
-21,3 allowing the construction of a Walmart retail store and
related improvements on property Jaylin owns that straddles Toms
River Township4 and Manchester Township in Ocean County.
Appellants argue that DEP: (1) improperly waived compliance
with its coastal regulations by allowing Jaylin to mitigate any
adverse development impacts by using off-site parcels and to use
expired impervious cover limits; (2) violated the Administrative
Procedure Act (APA), N.J.S.A. 52:14B-1 to -25, by creating a new
habitat assessment methodology without proper rulemaking; (3)
ignored the requirements of the Pinelands Protection Act,
N.J.S.A. 13:18A-1 to -29, and the Pinelands Comprehensive
Management Plan (CMP) Rules, N.J.A.C. 7:50-1.1 to -10.35; and
(4) allowed inadequate notice to owners near the off-site
mitigation parcels.
By way of background, on November 8, 2004, Jaylin submitted
an application to DEP's Division of Land Use Regulation (DLUR)
requesting a CAFRA individual permit, a stream encroachment
permit, and a transition area waiver under the Freshwater
3
Also calendared back-to-back with the present appeals are
parallel actions challenging the validity of Jaylin's municipal
approvals: Perlmutter v. Township of Toms River Planning Bd.,
Docket No. A-2814-11, and Perlmutter v. Jaylin Holdings, LLC,
Docket No. A-2958-12; and a related action, Jaylin Holdings, LLC
v. Perlmutter, Docket No. A-5958-12.
4
The Township of Toms River was known as Dover Township until
November 14, 2006.
3 A-4880-11T2
Wetlands Protection Act (FWPA), N.J.S.A. 13:9B-1 to -30.5 Jaylin
proposed developing its forty-three acre property by
constructing a 203,091 square foot Walmart retail store, a
19,884 square foot garden center, 1049 parking spaces, three
stormwater basins and access roads, while reserving two
outparcels for future use.
Approximately 17.13 acres of the proposed construction site
are located in Toms River Township, and approximately 25.87
acres are located in Manchester Township. With the exception of
a gas station, the construction site is undeveloped and mostly
forested; wetlands are located at the southern end.
The site is located in the coastal zone of the Pinelands
National Reserve, and it is bordered by Route 37 to the north;
by Northampton Boulevard to the east; by approximately 7300
acres of undeveloped land to the west, which is owned by
Heritage Minerals, Inc., and which was previously disturbed by
sand mining operations; and by a Conrail right-of-way to the
south. There is dense residential development north of Route
37, the Toms River Industrial Park east of Northampton
Boulevard, more undeveloped land south of the Conrail right-of-
5
At Jaylin's request, DLUR determined in May 2004 that there
were freshwater wetlands of intermediate resource value on and
adjacent to the proposed activity, requiring a transition area
or buffer of fifty feet.
4 A-4880-11T2
way and an extensive residential development southeast of the
right-of-way.
DEP published notice of Jaylin's 2004 application in the
DEP Bulletin on December 29, 2004, and Jaylin provided notice to
the municipal entities and to the surrounding property owners.
On January 27, 2005, DLUR deemed the application complete for
final review.
In March 2005, DEP's Division of Fish and Wildlife (DFW)
voiced concerns that Jaylin's project would not comply with
N.J.A.C. 7:7E-3.38(b), governing endangered or threatened
species habitat in the coastal zone, because of the property's
proximity to past sightings of the northern pine snake. In
Summer 2005, Jaylin's consultant saw northern pine snakes and
evidence of pine snake hibernacula on the property. Two adult
males were discovered, captured, implanted with radio
transmitters and monitored until they settled into their winter
hibernacula. One snake wintered on the property; the other
snake wintered on the neighboring Heritage Minerals property.
The northern pine snake is listed as a "threatened" species
in New Jersey. N.J.A.C. 7:25-4.17 (list providing conservation
status of New Jersey's indigenous nongame wildlife species).
According to the habitat impact assessment prepared by Jaylin's
experts, they are long-lived, large-bodied, non-venomous
5 A-4880-11T2
"constrictors that forage aboveground or in subterranean rodent
burrows." DEP's "Status Assessment of the Northern Pine
Snake[,]" published in December 2009, notes that their numbers
are unknown, and they are "found nowhere else in the world but
along a narrow fringe of pinelands habitat that occurs within
the eastern [United States]." They isolate themselves from
other snakes and even from other pine snake populations. They
nest in open areas with loose sandy soils and follow scent
trails to overwinter in unique underground hibernacula,
beginning in early to mid-October and ending in April. They
have specific habitat needs and, according to DEP's report, are
"less flexible with [their] ability to use various habitat
types."
On June 1, 2006, DLUR denied Jaylin's entire 2004
application, finding noncompliance with, among other
regulations, N.J.A.C. 7:7E-3.38, governing endangered or
threatened wildlife or plant species habitats.
On June 5, 2006, Jaylin appealed the denial to DEP's Office
of Legal Affairs (OLA), requesting an adjudicatory or contested
case hearing before the Office of Administrative Law (OAL),
N.J.A.C. 7:7-5.1(a), or alternative dispute resolution (ADR)
before DEP's Office of Dispute Resolution (ODR), N.J.A.C. 7:7-
5.4(a) and N.J.A.C. 7:7A-1.7(e). Initially, on December 8,
6 A-4880-11T2
2006, the ODR rejected ADR as not appropriate, because no
mitigation alternative was available for endangered or
threatened species.6 Nonetheless, for reasons not apparent in
the record, various DEP divisions and Jaylin engaged in formal
ADR but "were unable to reach an agreement" as of September
2007. The ODR told the OLA to transmit the matter to the OAL
"for an adjudicatory hearing." However, informal discussions
between DLUR and Jaylin continued, resulting in a modified
project design.
On July 2, 2009, Jaylin participated with DLUR in a "non-
binding" "pre-application conference." DLUR's Assistant
Director "noted that the anticipated application would be a new
application and would be reviewed under the revised design and
the current regulations."
On October 22, 2009, Jaylin submitted an application to
DLUR requesting a CAFRA individual permit and a FWPA general
permit.7 Reducing the scale of its project, Jaylin proposed
constructing an 187,793 square foot retail store, a 5703 square
6
The ODR wrote: "The DFW has determined that an adverse impact
to T&E [threatened and endangered species] habitat will occur if
the project is built, and New Jersey's Coastal Zone Management
Rule for Endangered or Threatened Wildlife or Plant Species
habitats does not contemplate mitigation since adverse impacts
are specifically prohibited."
7
DEP ultimately granted Jaylin's request for a FWPA general
permit, and appellants do not appeal that approval.
7 A-4880-11T2
foot garden center, 833 parking spaces, five above-ground and
two underground stormwater basins and access roads. Jaylin also
proposed shifting its project more onto the Toms River Township
portion of the property and away from the existing snake
hibernaculum and proposed building a four-foot high linear
barrier wall to separate the hibernaculum from the development.
Jaylin's counsel characterized the application as "a
resubmission[,]" which "represents a significantly revised and
reduced project that is proposed as a result of the 2006
denial."
In addition to its project activities, Jaylin proposed
purchasing, enhancing, and preserving by dedication to DEP two
properties in Manchester Township to mitigate any pine snake
habitat disturbance on the construction site: (1) a 21 acre
parcel that abutted the southwestern portion of the construction
site and would serve as a corridor linking the on-site habitat
to other habitats across the Conrail right-of-way; and (2) an
89.29 acre parcel that was not near Jaylin's property, but was
adjacent to two mapped existing regional wildlife management
areas containing documented northern pine snake habitat.
Habitat enhancements on the two properties would include
construction of artificial hibernacula and stump/debris piles,
selective tree thinning, blocked access, creation of upland
8 A-4880-11T2
forest clearings for nesting and scarifying the ground to
benefit existing pine snake habitat.
DEP published notice of the application in the DEP Bulletin
on November 18, 2009 and notice of a thirty-day public comment
period in the DEP Bulletin on December 16, 2009. Jaylin
provided notice to the municipal entities and to the surrounding
property owners.
On March 15, 2010, DLUR denied Jaylin's 2009 application
request for a CAFRA individual permit, finding noncompliance
with, among other regulations, the same regulation that formed
the basis of the agency's 2006 denial, namely N.J.A.C. 7:7E-
3.38, concerning endangered or threatened wildlife or plant
species habitats, as well as N.J.A.C. 7:7E-5B.4, -5B.5 and -
5B.6, concerning impervious cover limits and mainland coastal
centers. Notice of the permit decision was published in the DEP
Bulletin on March 24, 2010.
On April 23, 2010, Jaylin appealed to DEP's OLA, requesting
an OAL hearing or ADR, and also offered "to negotiate a
settlement." During subsequent settlement negotiations, DEP and
Jaylin's consultants conducted "a joint inspection of the
sites," and Jaylin offered to discuss additional mitigation
9 A-4880-11T2
measures.8 To that end, on December 1, 2010, Jaylin submitted "a
revised permit application" to DLUR "[i]n accordance with the
provisions of N.J.A.C. 7:7-5.4, entitled Settlement in Response
to a Hearing Request[.]" Similar to its immediately preceding
application, Jaylin proposed constructing an 189,797 square foot
retail store with a water tower, a 5703 square foot garden
center, 833 parking spaces, five above-ground and two
underground stormwater basins and access roads, totaling a 22.4
acre development area. As before, the proposed development area
straddled both townships; however, most of the activities would
again be confined on the Toms River Township portion. Save for
an above ground basin, part of the parking lot and part of an
access road from Route 37 to be located in Manchester Township,
the rest of property in that Township would be dedicated to pine
snake habitat.
Jaylin also proposed constructing a 3319-foot-long, four-
foot-high snake barrier wall to keep the pine snakes away from
the development and proposed leaving a 150-foot buffer around
the existing snake hibernaculum. Additionally, Jaylin purchased
the two additional parcels planned for habitat preservation and
8
Meanwhile, on October 6, 2010, the Toms River Planning Board
approved Jaylin's application for preliminary and final major
site plan approval and various dimensional variances. On
November 1, 2010, the Manchester Planning Board approved the
project.
10 A-4880-11T2
enhancement.
To support its application, Jaylin submitted updated
information and reports, including an analysis applying DEP's
new Habitat Evaluation Method (HEM) for northern pine snakes to
the construction site and the mitigation parcels. Jaylin's
experts asserted in these documents that the proposed activities
would not negatively affect the pine snake population or habitat
because of the proposed mitigation measures.
DEP created the "Conceptual [HEM] for Northern Pine Snakes"
in August 2010. Using this methodology, DEP's Division of Fish
and Wildlife's Endangered and Nongame Species Program (ENSP)
staff and Jaylin's consultants each calculated the HEM for
Jaylin's proposal, arriving at "remarkably similar" numbers.
That is, they compared pre- and post-development and enhancement
values by estimating both the habitat value lost due to Jaylin's
project and the habitat value gained by Jaylin's proposed
habitat enhancements on the on- and off-site properties.
ENSP staff found that most of Jaylin's improvements to the
pine snake habitat would benefit the regional pine snake
population, as opposed to the snake population directly on
Jaylin's construction site. Nevertheless, ENSP staff concluded
that Jaylin's proposed on- and off-site enhancements would
substantially improve pine snake habitats in the general area,
11 A-4880-11T2
and the construction would result in "no net loss in habitat
value" to the population.
DEP published notices of its intent to settle the permits
and of the public comment period in the DEP Bulletin of January
12, 2011. Notice was also provided to the local municipalities
and to all persons who had notice of the previous applications,
or who had commented on them. Numerous comments were filed
during the extended comment period and appellants and others
submitted lengthy comments and independent expert reports.
On December 20, 2011, Jaylin and DLUR entered into a
stipulation of settlement under which DEP would issue permits
for the project. Jaylin was required, among other things, to
set aside portions of its construction site in both Toms River
and Manchester Townships, totaling 20.9 acres, where no
development would occur and to maintain that portion as a
"permanent conservation restriction pine snake corridor area."
Jaylin also agreed to acquire and grant DEP conservation
restrictions on additional parcels in Manchester Township,
totaling approximately 192 acres on DEP-mapped areas with
multiple pine snake habitats.
There was no requirement, however, that these acres be
contiguous to the project site, contiguous to one another, near
the site or even within the CAFRA area. In fact, while one
12 A-4880-11T2
mitigation parcel of 21.1 acres is contiguous to the
construction site, the other mitigation parcels are "up to 6.5
miles away."
Additionally, Jaylin agreed to install a herpetofauna fence
(wire exclusion fence) on the construction site and to "retain a
qualified herpetologist who shall conduct daily site inspections
. . . and monitor, protect and remove to the habitat side [of
the fence] all reptiles found on the construction side of the
Herpetofauna Fence and on both sides of the linear barrier
wall." And Jaylin also agreed to deposit $70,911 into an escrow
account for DEP "to ensure successful project completion and
ongoing monitoring and maintenance of the enhanced pine snake
habitat, and in a second escrow account, a refundable sum of
$15,344 for the completion of the sapling planting costs[.]"
On December 21, 2011, DEP published in the DEP Bulletin a
notice of settlement and of another public comment period,
during which the settlement agreement was available for public
inspection and review. Numerous comments were submitted.
On April 18, 2012, DLUR issued the permit authorizing
development activities within an approximate 22.4 acre portion
of the original property/construction site, containing various
standard, administrative and project-specific permit conditions.
DLUR attached to the permit its April 2012 Environmental Report,
13 A-4880-11T2
detailing reasons why the project met the statutory and
regulatory criteria and its April 2012 Responses to Public
Comments. On May 23, 2012, DEP published notice of its final
settlement and permit issuance in the DEP Bulletin. These
appeals followed.9
Appellants essentially complain that in granting the CAFRA
permit, DEP improperly waived and failed to comply with the
substantive regulations concerning endangered or threatened
species habitat, N.J.A.C. 7:7E-3.38 and impervious cover limits,
N.J.A.C. 7A:7E-5B and thus violated CAFRA's mandate in N.J.S.A.
13:19-10 that DEP issue a permit "only upon a finding that the
proposed development . . . [w]ould cause minimal feasible
interference with the natural functioning of plant, animal,
fish, and human life processes at the site and within the
surrounding region." N.J.S.A. 13:19-10(e).
I. GENERAL LEGAL PRINCIPLES
Except for certain construction activities expressly
exempted from permitting in N.J.S.A. 13:19-5.2, and not
applicable here, CAFRA requires developers and property owners
to obtain a coastal permit from DEP before undertaking "the
9
As noted, related appeals challenging the local municipal
approvals were also filed (Docket No. A-2814-11 and Docket No.
A-2958-12).
14 A-4880-11T2
construction . . . of any building or structure and all site
preparation therefor, . . . includ[ing] . . . commercial
development" in a coastal area. N.J.S.A. 13:19-3 (definition of
"development"); N.J.S.A. 13:19-5. DEP exercises its CAFRA
permitting authority through various regulations, specifically:
(1) the Coastal Permit Program (CPP) Rules, N.J.A.C. 7:7-1.1 to
-10.7, which "establish[] the procedures by which [DEP] will
review permit applications and appeals from permit decisions,"
N.J.A.C. 7:7-1.1(a); and (2) the Coastal Zone Management (CZM)
Rules, N.J.A.C. 7:7E-1.1 to -8.22, which "present[] the
substantive rules . . . regarding the use and development of
coastal resources," N.J.A.C. 7:7E-1.1(a). See In re N.J.A.C.
7:1B-1.1 et seq., 431 N.J. Super. 100, 120 (App. Div.)
(distinguishing the different groups), certif. denied, 216 N.J.
363 (2013).
In In re Protest of Coastal Permit Program Rules, 354 N.J.
Super. 293, 332 (App. Div. 2002), we held that "DEP must make
findings under the [general] standards in N.J.S.A. 13:19-10,
even if DEP finds that a CAFRA permit application complies with
its specific regulations." N.J.S.A. 13:19-10 declares that
[a] permit may be issued pursuant to this
act [CAFRA] only upon a finding that the
proposed development:
. . . .
15 A-4880-11T2
e. Would cause minimal feasible
interference with the natural functioning of
plant, animal, fish, and human life
processes at the site and within the
surrounding region.
. . . .
g. Would result in minimal practicable
degradation of unique or irreplaceable land
types, historical or archeological areas,
and existing public scenic attributes at the
site and within the surrounding region.
Our role in reviewing an agency's decision is limited. In
re Proposed Quest Acad. Charter Sch. of Montclair Founders Grp.,
216 N.J. 370, 385 (2013). We will not reverse its decision
"because of doubts as to its wisdom or because the record may
support more than one result." In re N.J. Pinelands Comm'n
Resolution, 356 N.J. Super. 363, 372 (App. Div.), certif.
denied, 176 N.J. 281 (2003). To reverse a decision, we must
find: "(1) it was arbitrary, capricious, or unreasonable; (2) it
violated express or implied legislative policies; (3) it
offended the State or Federal Constitution; or (4) the findings
on which it was based were not supported by substantial,
credible evidence in the record." Univ. Cottage Club of
Princeton N.J. Corp. v. N.J. Dep't of Envtl. Prot., 191 N.J. 38,
48 (2007).
Moreover, we must extend substantial deference to an
agency's interpretation and application of its own regulations,
16 A-4880-11T2
particularly on technical matters within the agency's special
expertise. In re Freshwater Wetlands Prot. Act Rules, 180 N.J.
478, 488-89 (2004). However, "[w]hile we must defer to the
agency's expertise, we need not surrender to it." N.J. Chapter
of Nat'l Ass'n of Indus. & Office Parks v. N.J. Dep't of Envtl.
Prot., 241 N.J. Super. 145, 165 (App. Div.), certif. denied, 122
N.J. 374 (1990).
Furthermore, a court is never bound by an agency's
determination of a purely legal issue. In re Stream
Encroachment Permit, 402 N.J. Super. 587, 597 (App. Div. 2008)
(citing Greenwood v. State Police Training Ctr., 127 N.J. 500,
513 (1992)). When "the issue involves the interpretation of
statutes and regulations, it is a purely legal issue, which we
consider de novo." Klawitter v. City of Trenton, 398 N.J.
Super. 302, 318 (App. Div. 2007).
Before DEP issued the permit in this case, we held in
Dragon v. New Jersey Department of Environmental Protection, 405
N.J. Super. 478 (App. Div.), certif. denied, 199 N.J. 517(2009), that even though DEP has authority to settle disputed
issues regarding its issuance of a permit, id. at 491, the
agency cannot use its litigation settlement process to waive
strict compliance with its substantive CZM Rules in order to
circumvent CAFRA's permitting requirements. Id. at 492; see
17 A-4880-11T2
also In re N.J.A.C. 7:1B-1.1, supra, 431 N.J. Super. at 125, 128
(also upholding new universal waiver rules). Accord In re CAFRA
Permit No. 87-0959-5 Issued to Gateway Assocs., 152 N.J. 287,
308 (1997); SMB Assocs. v. N.J. Dep't of Envtl. Prot., 264 N.J.
Super. 38, 50 (App. Div. 1993), aff'd on other grounds, 137 N.J.
58 (1994).
II. ENDANGERED AND THREATENED SPECIES HABITAT,
N.J.A.C.7:7E-3.38
N.J.A.C. 7:7E-3.38(a) defines "[e]ndangered or threatened
wildlife or plant species habitats" as "areas known to be
inhabited" by such species "on a seasonal or permanent basis,"
or in the alternative, as areas known "to be critical at any
stage in the life cycle of any" such species. Also deemed a
part of those habitats is "a sufficient buffer area to ensure
continued survival of the population of the species as well as
areas that serve an essential role as corridors for movement of
endangered or threatened wildlife."
These areas have been singled out as deserving of special
protection. Thus, N.J.A.C. 7:7E-3.38(b) states:
Development of endangered or threatened
wildlife or plant species habitat is
prohibited unless it can be demonstrated,
through an Endangered or Threatened Wildlife
or Plant Species Impact Assessment as
described at N.J.A.C. 7:7E-3C.2, that
endangered or threatened wildlife or plant
species habitat would not directly or
through secondary impacts on the relevant
18 A-4880-11T2
site or in the surrounding area be adversely
affected.
[(emphasis added).]
"Applicants for development of sites that contain or abut
areas mapped as endangered or threatened wildlife species
habitat" shall "[d]emonstrate compliance with [N.J.A.C. 7:7E-
3.38] by conducting an Endangered or Threatened Wildlife Species
Impact Assessment in accordance with N.J.A.C. 7:7E-3C.2[.]"
N.J.A.C. 7:7E-3.38(c)(1). According to N.J.A.C. 7:7E-3C.2(a),
the submitted assessment must "demonstrate that the proposed
development will not negatively affect the population(s) or
habitat of [the] endangered or threatened wildlife species that
resulted in identification of the site, or an area abutting the
site, as endangered or threatened wildlife species habitat[.]"
N.J.A.C. 7:7E-3C.2(c) requires that
[i]mpact assessments [] be conducted for
each endangered or threatened wildlife or
plant species . . . . The impact assessment
shall consider the likely affects of the
proposed development on the local
populations of the particular species on or
abutting the site. The impacts shall be
assessed using accepted ecological
principles and scientific literature on each
species and both direct and indirect impacts
of the proposed development shall be
considered. This assessment shall be based
on habitat requirements and life history of
each species, and the manner in which the
proposed development may alter habitat,
including, but not limited to, vegetation,
soils, substrate, bathymetry, salinity,
19 A-4880-11T2
hydrology, wildlife movement corridors,
human disturbance, and effects on
competitor, parasite, or predator species.
In its 2012 Environmental Report, DLUR acknowledged that
Jaylin's project would cause the direct loss of pine snake
habitat on the construction site and "could result in a number
of secondary impacts." However, it found that such impacts
would not result "in an overall adverse impact" to the local
pine snake population on the property or in the surrounding
area. That is, the impacts would cause no net loss due to
Jaylin's proposed enhancement activities both on and immediately
adjacent to the development, including the barrier wall.10
10
In its 2012 Responses to Public Comments, DLUR explained:
[T]he applicant proposes the permanent
preservation of 20.9± acres of
on-site forested/vegetated open space to
serve as a corridor linking the on-site
habitat with the thousands of acres of
adjoining habitat located directly across
the Conrail railroad ROW [right-of-way].
Within this corridor, the applicant proposes
northern pine snake habitat enhancement
initiatives. Directly across the Conrail
ROW, the applicant purchased 21 acres that
border the lands that are presently pine
snake habitat and are planned to be
preserved pursuant to the Heritage Minerals
settlement. This 21-acre parcel provides a
direct link between the hibernaculum and the
pine snake habitat preserved onsite and the
existing pine snake habitat that is on the
Heritage Minerals parcel, planned for future
permanent preservation. Moreover, this
(continued)
20 A-4880-11T2
Furthermore, Jaylin's preservation and enhancement of the
additional mitigation parcels would improve pine snake habitat
in the surrounding area.11 Thus, DLUR concluded that the project
met the requirements in N.J.A.C. 7:7E-3.38(b) based on Jaylin's
implementation of protective measures on its construction site,
its acquisition of 192 acres of pine snake habitat in the area,
the overall increase in habitat value as shown by the HEM, and
the existing adjoining contiguous pine snake habitat on the
Heritage Minerals lands.
(continued)
mitigation property includes habitat
characteristics that are preferred by
northern pine snake . . . . The mitigation
property fills a crucial gap that results in
an overall contiguous area of more than 21
square miles of preserved lands.
11
As part of its 2012 Responses, DLUR further explained:
The applicant has purchased five outparcels
that will also fill gaps in the overall
protected lands in Manchester Township.
These properties lie beyond the home-range
of the two snakes documented on the
development site, but they will contribute
significantly to the protection of the
northern pine snakes in the northeastern
region of the Pinelands. The acquisition of
these properties prevents further
curtailment of pine snake habitat and
diminishes the risk of limiting genetic
diversity among pine snakes in this region
due to isolation. Thus, the applicant has
gone to extraordinary lengths to ensure the
protection of the northern pine snake in
accord with the Department's mission . . . .
21 A-4880-11T2
Appellants challenge this determination, specifically
arguing that that no development can occur on Jaylin's
construction site because: (1) N.J.A.C. 7:7E-3.38 does not allow
"net" habitat values, as it prohibits any development that will
adversely affect the protected habitat either on the site or in
the surrounding area; (2) DEP cannot consider any mitigation
generally allowed by N.J.A.C. 7:7E-1.6 to meet the requirements
in N.J.A.C. 7:7E-3.38 for a CAFRA permit; (3) in any event,
using off-site parcels exhibiting a regional population cannot
mitigate impacts to the local habitat on or near the
construction site, especially if the off-site parcels are
outside DEP's CAFRA jurisdiction; (4) Jaylin and DEP failed to
use accepted ecological principles and current scientific
literature in developing and applying the HEM; and (5) DEP did
not formally consult its own Endangered and Nongame Species
Advisory Committee (ENSAC), and did not consider the reports of
its highly qualified experts who study northern pine snakes. In
support of these arguments, appellants stress that DEP had
denied Jaylin's 2009 application because of the adverse impacts
to pine snake habitat, but then, without adequate explanation,
granted Jaylin's 2010 revised application even though it
proposed the same building footprints, parking lot and snake
barrier wall. We disagree with all of these contentions.
22 A-4880-11T2
A. "NET" CALCULATION
In arguing that N.J.A.C. 7:7E-3.38 prohibits a "net"
habitat value calculation, appellants read the development
prohibition in subsection (b), N.J.A.C. 7:7E-3.38(b), too
expansively. Neither the regulation nor CAFRA expressly
precludes using a "net" computation for assessing the impact of
development.
In adopting CAFRA, the Legislature accepted that coastal
management involves the balancing of competing interests and
that impacts to special areas and populations are unavoidable in
some instances. In N.J.S.A. 13:19-2, the Legislature
recognizes the legitimate economic
aspirations of the inhabitants of the
coastal area and wishes to encourage the
development of compatible land uses in order
to improve the overall economic position of
the inhabitants of that area within the
framework of a comprehensive environmental
design strategy which preserves the most
ecologically sensitive and fragile area from
inappropriate development and provides
adequate environmental safeguards for the
construction of any developments in the
coastal area.
This balancing can be seen in one of the findings DEP is
required to make before issuing any CAFRA coastal permit; that
is, DEP must find that the proposed development "[w]ould cause
minimal feasible interference with the natural functioning of
plant, animal, fish, and human life processes at the site and
23 A-4880-11T2
within the surrounding region." N.J.S.A. 13:19-10(e) (emphasis
added). Thus, we find no error in using a "net" calculation.
B. OFF-SITE MITIGATION
Nor is DEP prohibited from using off-site mitigation to
meet N.J.A.C. 7:7E-3.38. There is nothing in that regulation
expressly preventing an applicant from proposing mitigation at
the development site, in the surrounding area or off-site, in
order to reverse the potential impact from its project to an
endangered and threatened species habitat. Indeed, N.J.A.C.
7:7E-3.38 is not like other CZM Rules for "Special Areas," such
as N.J.A.C. 7:7E-3.15 (intertidal and subtidal shallows) and
N.J.A.C. 7:7E-3.27 (wetlands), that expressly require certain
specific mitigation proposals.12
Although N.J.A.C. 7:7E-3.38 is silent as to the use of any
mitigation techniques, N.J.A.C. 7:7E-1.6 sets forth general
mitigation principles for the CZM Rules. N.J.A.C. 7:7E-1.6
states:
(a) Mitigation shall be selectively
considered on a case-by-case basis as
compensation for the loss or degradation of
a particular natural resource. In general,
mitigation should be similar in type and
location to the resource disturbed or
12
"Special Areas are areas that are so naturally valuable,
important for human use, hazardous, sensitive to impact, or
particular in their planning requirements, as to merit focused
attention and special management rules." N.J.A.C. 7:7E-3.1(a).
24 A-4880-11T2
destroyed, that is, replacement in kind
within the same watershed. The Department
will, however, consider proposals for
mitigation that differ in type and/or
location from the disturbed or destroyed
resource provided the mitigation would
provide a major contribution to meeting the
coastal goals and supplemental policies at
N.J.A.C. 7:7E-1.1(c). Requirements for
mitigation of a particular resource are
addressed more specifically in each
applicable Special Area Rules (N.J.A.C.
7:7E-3.1 through 3.49).
(b) Rationale: This rule is intended
to conserve those physical and biological
values described under applicable Special
Area rules, while allowing development
consistent with acceptability criteria. Use
of this mitigation rule will result in real
gain, or no net loss of habitat productivity
or resource value.
[(emphasis added).]
In our view, since N.J.A.C. 7:7E-3.38 is silent as to
mitigation, it must be read together and harmonized with the
mitigation generally provided for in N.J.A.C. 7:7E-1.6, allowing
for mitigation, both on-site and off-site, when reviewing the
requirements in N.J.A.C. 7:7E-3.38 for permit issuance. Indeed,
"[s]tatutes and regulations in pari materia are to be construed
together when helpful in resolving doubts or uncertainties in
the ascertainment of legislative intent." Boyle v. Riti, 175
N.J. Super. 158, 165 (App. Div. 1980). "Moreover, 'regulations
within the same [regulatory] scheme should, where feasible, be
25 A-4880-11T2
read as consistent with each other.'" Czar, Inc. v. Heath, 398
N.J. Super. 133, 139 (App. Div. 2008) (alteration in original)
(quoting Van Orman v. Am. Ins. Co., 608 F. Supp. 13 (D.N.J.
1984)), aff'd as modified on other grounds, 198 N.J. 195 (2009).
Thus, by its very terms, N.J.A.C. 7:7E-1.6 allows
mitigation onsite generally or off-site at another location,
albeit with conditions. In fact, when the CZM Rules were
readopted in 2003, DEP declared as to N.J.A.C. 7:7E-1.6: "the
Coastal Zone Management rules recognize that coastal management
involves the balancing of competing interests. As such, the
rules recognize that in certain situations impacts to special
areas are unavoidable. Therefore, mitigation is required as a
measure to lessen the impacts of that development." 35 N.J.R.
632(a) (Feb. 3, 2003) (DEP's response to comment #34).
In addition, the coastal regulations define "site" as "the
lot or lots upon which a proposed development is to be
constructed." N.J.A.C. 7:7-1.3 (emphasis added); N.J.A.C. 7:7E-
1.8(a) (emphasis added). In applying the CZM Rules to a site,
the CPP Rules require DEP to consider the "[p]roperty as a
whole," which means "all property assembled as one investment or
to further one development plan[,]" regardless of the number of
lots involved. N.J.A.C. 7:7-1.3. Those definitions of "site"
and "[p]roperty as a whole" do not specify that the lots on
26 A-4880-11T2
which the "regulated activity" will occur must be contiguous.
Harmonized with the prior regulations, the three rules together
demonstrate that, unless otherwise expressly required, the lots
on which the regulated activity and the mitigation occur do not
have to be contiguous to reverse or minimize the potential
development impact to a special area, such as an endangered or
threatened species habitat.
In arguing specifically that off-site mitigation is
precluded by regulation, appellants also define "population" in
N.J.A.C. 7:7E-3C.2 too narrowly. While N.J.A.C. 7:7E-3C.2(c)
declares that the "[i]mpact assessments" shall consider the
"likely" effects on the "local population," N.J.A.C. 7:7E-
3C.2(a) does not limit itself to the "local population."
Rather, N.J.A.C. 7:7E-3C.2(a) declares that the applicant's
submitted information must demonstrate that the proposed
development "will not negatively affect the population(s) or
habitat of endangered or threatened wildlife species that
resulted in identification of the site, or an area abutting the
site, as endangered or threatened wildlife species habitat."
When there is limiting language in one part of an enactment, but
it is left out of another section, the omission is viewed as
intentional. In re N.J.A.C. 7:1B-1.1, supra, 431 N.J. Super. at
119 (citing Ryan v. Renny, 203 N.J. 37, 58 (2010)). Thus,
27 A-4880-11T2
although the impact assessment must consider construction
impacts on the local snake population, which DEP did in this
instance,13 DEP's review of those impacts must be assessed
against the entire regional population.
Therefore, even though there is evidence suggesting that
the pine snakes on the construction site would likely not
interact with the pine snakes on the mitigation sites, we find
(1) that DEP did not err by concluding that mitigation can occur
in areas on, adjacent to, or off the construction site, N.J.A.C.
7:7-1.3, 7:7E-1.6, and 7:7E-1.8, so long as there are no net
direct or secondary negative impacts to the habitat on the site
or surrounding area, N.J.A.C. 7:7E-3.38, 7:7E-3C.2(c); and (2)
that DEP's assessment of the project's impacts, including any
barriers, properly took into account the entire pine snake
13
In its 2012 Responses to Public Comments, expressing concern
that the proposed mitigation properties will not support the
local pine snake population, DLUR wrote:
For the purposes of assessing the offsetting
measures proposed by the applicant, the
Department considered the losses and
benefits to pine snake habitat within the
population of pine snakes located in the
northeast region of Ocean County. A
"population" is generally understood to be
the number of individuals within a given
area. It is acceptable (and reasonable) to
take a broad approach in evaluating the
habitat losses or gains to a particular
population.
28 A-4880-11T2
population, not just the local population, N.J.A.C. 7:7E-
3C.2(a). In sum, we conclude that DEP did not err by
considering all of the mitigation areas when it reviewed whether
Jaylin's proposal met the permitting requirements in N.J.A.C.
7:7E-3.38.14
C. DIFFERENT PERMIT APPLICATION OUTCOMES AND DEP'S HABITAT
EVALUATION METHOD
Appellants next point out that DEP denied Jaylin's 2009
application after finding adverse impacts to pine snake habitat
from Jaylin's proposal, but then granted its 2010 revised
application although those two applications proposed similar
building footprints, parking lots and snake barrier walls. We
discern no agency inconsistency here because there were two main
differences in these applications, which resulted in DEP's
disparate outcomes.
14
To be sure, in its denial of Jaylin's 2004 application, DEP
declared that N.J.A.C. 7:7E-3.38 "does not contemplate
mitigation since adverse impacts are specifically prohibited."
To the extent the agency now suggests its mitigation review of
Jaylin's proposal did not include the off-site parcels, we
disagree. In its review of Jaylin's later applications, DEP
explained that it considered and used "only the proposed habitat
enhancements on the lands permanently preserved by the
applicants" to "offset the estimated loss in habitat value that
would occur in the development area." In other words, DEP did
include in its review those areas where Jaylin proposed to
construct snake habitat enhancements, and many of these areas
were on the mitigation parcels and not on the construction site
itself. As already noted, we find no error with the agency's
approach to including the mitigation parcels in its review.
29 A-4880-11T2
First, along with its 2010 revised application, Jaylin
agreed to acquire and grant DEP conservation restrictions on 192
additional acres in Manchester Township on DEP mapped areas with
multiple pine snake habitats, which, as previously noted, were
properly taken into account in the agency's "net" habitat value
calculation.
Second, DLUR applied DEP's new HEM for northern pine snakes
only to Jaylin's 2010 revised application, finding that the
proposed activities would not adversely affect that snake
population or habitat. Moreover, contrary to appellants'
claims, the record shows that DEP used accepted ecological
principles and current scientific literature and species mapping
in developing and applying the HEM to Jaylin's 2010 revised
application.
That is, according to an August 2010 report detailing the
HEM by the DFW, entitled "Conceptual Habitat Evaluation Method
for Northern Pine Snakes," DEP solicited, received and
incorporated input from various pine snake experts in its
preparation of the HEM and utilized current scientific
literature and habitat mapping and existing federal methodology
for habitat evaluation in both developing and applying the HEM
to determine whether Jaylin's project complied with N.J.A.C.
7:7E-3.38.
30 A-4880-11T2
One of the fundamental considerations in reviewing an
agency's policymaking and factfinding is that a court may not
substitute its judgment for the agency's expertise. In re
Distrib. of Liquid Assets Upon Dissolution of Union Cnty. Reg'l
High Sch. Dist. No. 1, 168 N.J. 1, 10-11 (2001). Consequently,
DEP's interpretation of scientific data, although not binding,
"is entitled to substantial weight." N.J. Chapter of Nat'l
Ass'n of Indus. & Office Parks, supra, 241 N.J. Super. at 165.
This is particularly true when the matter involves complex
scientific methodologies. GAF Corp. v. N.J. Dep't of Envtl.
Prot., 214 N.J. Super. 446, 452-53 (App. Div. 1986). Thus, we
find that DEP's different decisions on Jaylin's two permit
applications were neither improper nor inconsistent.
Furthermore, because the HEM methodology involved complex
computer-based evaluations and actual field assessments by DEP's
ENSP staff, we defer to the agency's expertise as to the
ecological principles and scientific literature the DFW used in
developing and applying the HEM.
And contrary to appellants' additional claim, DEP did not
err by having its DFW and ENSP staff develop and apply the HEM
without formal input from the ENSAC, as that Committee has no
responsibility to advise the DEP Commissioner on whether
endangered and threatened species habitats can be developed
31 A-4880-11T2
under CAFRA, or on how to develop them under CAFRA's policies.
Indeed, even EELC concedes that there is "no legal obligation"
for DEP to adopt the Committee's recommendations.15
For all these reasons then, we conclude that DEP did not
waive or fail to comply with its substantive regulations
concerning endangered and threatened species habitat, N.J.A.C.
7:7E-3.38, when it granted the CAFRA permit to Jaylin.
[At the direction of the court, per R. 1:36-
2(a), the discussions of Sections III, IV
and V in this appeal have been omitted from
the published version of the opinion.]
VI. IMPERVIOUS COVERAGE LIMITS, N.J.A.C. 7:7E-5B
Critical to DEP's 2012 Permit Approval was the agency's
finding that the Toms River portion of the site is located
within the Toms River Coastal Regional Center. This designation
allowed an eighty percent impervious cover percentage on that
portion of the tract, rather than the otherwise permissible
thirty percent coverage available in a Coastal Suburban Planning
Area, which designation applies to the Manchester Township
15
The Committee was established under The Endangered and Nongame
Species Conservation Act, N.J.S.A. 23:2A-1 to -15. N.J.S.A.
23:2A-7(e) states: "[t]he commissioner shall appoint a committee
of experts to advise and assist the commissioner in carrying out
the intent of this act. Said experts shall include persons
actively involved in the conservation of wildlife." N.J.A.C.
7:25-4.18 states that the eleven members of the Committee,
N.J.A.C. 7:25-4.18(a), "shall advise and assist the Commissioner
in matters related to the intent of 'The Endangered and Nongame
Species Act,'" N.J.A.C. 7:25-4.18(b).
32 A-4880-11T2
portion of the construction site16 and underlies Jaylin's entire
property. Appellants challenge that determination as violative
of the maximum limit allowed for that location by operation of
N.J.A.C. 7:7E-5B.1 to -5B.6. Appellants argue that DEP's most
recent ruling contradicts the agency's 2010 permit denial, which
concluded that the Toms River Coastal Regional Center
designation expired in February 2005 and had not been extended
by virtue of the 2008 Permit Extension Act, N.J.S.A. 40:55D-
136.1 to -136.6 (PEA), because the development site contains
wetlands and threatened and endangered species habitat and is
"environmentally sensitive" property, excluded from PEA
coverage. Therefore, the development site is properly
classified as the Coastal Suburban Planning zone, with a thirty
percent impervious coverage limitation and not the eighty
percent impervious coverage sought by Jaylin.
Determining the impervious limits for the site in question
is complex, fact-intensive and sensitive, and reliant upon a
provision of the PEA not heretofore judicially interpreted.
Therefore, some background is in order.
16
The Manchester Township portion of the site was outside this
Coastal Regional Center and therefore remained subject to the
underlying Coastal Suburban Planning Area's thirty percent cover
limit.
33 A-4880-11T2
The DEP's CZM Rules, N.J.A.C. 7:7E-5B.1 to -5B.6, limit the
percentage of land in a site in the CAFRA area that can be
covered with buildings, roads and other impervious structures.
N.J.A.C. 7:7E-5B.4; N.J.A.C. 7:7E-1.8. These limits are based
on where the site is located on the CAFRA Planning Map, that is,
in which of the following land area categories it sits: (1) a
coastal center; (2) a Coastal Planning Area; (3) a CAFRA center,
CAFRA core, or CAFRA node; and/or (4) a military installation.
N.J.A.C. 7:7E-5B.1(a); N.J.A.C. 7:7E-5.3(a); N.J.A.C. 7:7E-5.4.
Higher percentages are allowed in more developed areas.
For example, the impervious cover limit is: (1) eighty percent
for the Coastal Metropolitan Planning Area, CAFRA and coastal
regional centers, CAFRA cores, and CAFRA nodes; (2) seventy
percent for CAFRA and coastal towns; (3) thirty percent for the
Coastal Suburban Planning Area within a sewer service area; (4)
five percent for the Coastal Suburban Planning Area outside a
sewer service area; and (5) three percent for the Coastal
Environmentally Sensitive Planning Area. N.J.A.C. 7:7E-5B.4.
Even if the impervious cover for a project is acceptable within
N.J.A.C. 7:7E-5B, DEP still "may reject or conditionally
approve" a permit application "as reasonably necessary to,"
among other things, "[p]rotect . . . wildlife." N.J.A.C. 7:7E-
6.2(a)(2).
34 A-4880-11T2
It is undisputed that Jaylin's construction site is located
on the CAFRA Planning Map within the boundaries of a "Coastal
Suburban Planning Area" and within a sewer service area,
subjecting it to a thirty percent impervious cover limit.
N.J.A.C. 7:7E-5B.4. In addition, when Jaylin submitted its
original 2004 application, the Toms River Township portion of
its construction site was also listed within the boundaries of
the "Toms River Coastal Regional Center," subjecting it to an
eighty percent impervious cover limit. N.J.A.C. 7:7E-5B.4; 32
N.J.R. 503(a) (Feb. 7, 2000) (DEP adopts Toms River Coastal
Regional Center). Significant for present purposes, if a site
such as Jaylin's proposed development has portions in one or
more of the land area categories, only the cover limits
appropriate to each category apply to that particular portion.
N.J.A.C. 7:7E-5B.3(i).
DEP used the community planning boundaries approved by the
State Planning Commission in 1999 for the original land use
boundaries on its CAFRA Planning Map. N.J.A.C. 7:7E-5B.3(a).
See In re Protest of Coastal Permit Program Rules, supra, 354
N.J. Super. at 318-27 (detailed history). When the State
Planning Commission approves any new or changed boundary, DEP is
required to evaluate that boundary under CAFRA and then publish
a notice of its intention to accept it, reject it or promulgate
35 A-4880-11T2
a revised boundary for the CAFRA Planning Map. N.J.A.C. 7:7E-
5B.3(b). The changed boundary then becomes operative thirty
days from the date of publication. N.J.A.C. 7:7E-5B.3(c).
On February 7, 2005, the boundaries for the Toms River
Regional Coastal Center expired, along with the boundaries for
all coastal centers not located on barrier islands, oceanfront
spits, or peninsulas in the CAFRA area. N.J.A.C. 7:7E-5B.6(a);
38 N.J.R. 928(c) (Feb. 6, 2006).
One year later, on February 6, 2006, DEP re-established
those coastal center boundaries, and divided them into two new
classes of coastal centers: mainland and non-mainland.
N.J.A.C. 7:7E-5B.6(a); 38 N.J.R. 928(c), supra. Thus, the
"mainland" Toms River Regional Coastal Center, with an eighty
percent impervious cover limit, now applied to the portion of
Jaylin's construction site in Toms River Township. 38 N.J.R.
928(c), supra.
Most critically, however, during the February 6, 2006
adoption of the mainland coastal centers, DEP enumerated six
specific areas (including wetlands, endangered and threatened
wildlife species habitats mapped on DEP's Landscape Maps and
Coastal Critical Environmental Sites mapped on the CAFRA
Planning Map) that could not be a part of any mainland coastal
center's boundaries. N.J.A.C. 7:7E-5B.6(e). Development in any
36 A-4880-11T2
of those areas would then be limited to the impervious cover
limit of the underlying coastal planning area, here, the thirty
percent Coastal Suburban Planning Area. N.J.A.C. 7:7E-5B.6(e);
N.J.A.C. 7:7E-5B.6(g)(2). We have found no information in the
record or in the New Jersey Register that DEP ever applied that
regulation to the mainland Toms River Coastal Regional Center.
Nevertheless, if a CAFRA permit application (like Jaylin's
2004 application)17 had been filed before February 7, 2005, had
been assigned a DEP project number, had been deemed complete for
final agency review before March 15, 2006, and had proposed
development in a mainland coastal center that had not expired,
the applicant could use the previously expired coastal center's
boundaries and limit for impervious cover under N.J.A.C. 7:7E-
5B.4, regardless of the six enumerated areas excluded from the
mainland coastal center. N.J.A.C. 7:7E-5B.6(f).18
17
In the 2012 permit decision at issue here, DEP had calculated
the total allowable impervious cover for Jaylin's development to
be 18.836 acres. Jaylin proposed a total of 14.1075 acres of
impervious cover: 11.960 acres, or 76.35%, of impervious cover
in the Township of Toms River; and 2.1475 acres, or 10.22%, of
impervious cover in the Suburban Planning Area of Manchester
Township.
18
Accordingly, in its June 2006 denial of Jaylin's 2004
application, DEP determined that the Toms River portion of the
property was "governed by the impervious cover percentages
allowed by . . . . Toms River Coastal Regional Center," which is
eighty percent. Again, this determination was based on the
(continued)
37 A-4880-11T2
Otherwise, if the application was filed after February 7,
2005 (like Jaylin's 2009 and 2010 applications), and was
proposing development in a mainland coastal center, the
applicant could use the impervious cover for that mainland
coastal center only if the proposed development would take place
inside that center's boundaries and not within one of the six
enumerated areas and if the mainland coastal center's boundaries
had not expired. N.J.A.C. 7:7E-5B.6(g)(1). If any part of the
proposed development would be outside the mainland coastal
center's boundaries or within one of the six enumerated areas,
the applicant would have to use the impervious limits for the
underlying Coastal Planning Area. N.J.A.C. 7:7E-5B.6(g)(2).19
On March 15, 2007, the boundaries of all mainland coastal
centers expired. 39 N.J.R. 2018(b) (May 21, 2007) (listing
expiration of Toms River Coastal Regional Center in Dover
Township, Ocean County). DEP instructed permit applicants that
"[t]he impervious cover limits . . . of the underlying Coastal
Planning Area apply to the area encompassed by the former
(continued)
application having been received by DEP prior to February 7,
2005, and being deemed complete prior to March 15, 2006.
19
As noted, the underlying planning area across the entire site
is a Coastal Suburban Planning Area, which authorizes a maximum
of thirty percent impervious cover.
38 A-4880-11T2
mainland coastal center boundary." Ibid.
Consequently, DLUR concluded in its March 2010 denial of
Jaylin's 2009 application: (1) Jaylin's construction site had
lost its mainland Toms River Coastal Regional Center designation
when it expired, and impervious cover limits now were subject to
the thirty percent for the underlying Coastal Suburban Planning
Area; (2) the project improperly proposed impervious cover over
thirty percent; and (3) the Permit Extension Act of 2008 (PEA),
N.J.S.A. 40:55D-136.1 to -136.6, was not available to delay
expiration of the mainland coastal regional center.
However, when DLUR approved Jaylin's 2010 revised
application and issued the CAFRA permit in April 2012, it
disregarded its previous conclusions and authorized Jaylin to
develop the Toms River Township portion of its property up to an
eighty percent impervious cover limit. DLUR relied on Jaylin's
2004 application, on N.J.A.C. 7:7E-5B.6(f) and, contrary to its
previous position, on the PEA.
A. APPLICATION OF N.J.A.C. 7:7E-5B.6(f)
To be sure, Jaylin's 2004 CAFRA application fits into
N.J.A.C. 7:7E-5B.6(f), which states:
For purposes of any CAFRA permit
application that was received by the
Department prior to February 7, 2005,
assigned an agency project number pursuant
to N.J.A.C. 7:7-4.4(a)1i or ii, and proposes
a development in a mainland coastal center
39 A-4880-11T2
. . . that has not expired . . . , the
impervious cover limits . . . shall be
determined in accordance with N.J.A.C. 7:7E-
5B.4(d) [(permitting use of coastal regional
centers for impervious cover)] . . . ,
provided the CAFRA permit application is
complete for final review pursuant to
N.J.A.C. 7:7-4.6 prior to March 15, 2006.
That is, Jaylin had filed its 2004 application before February
7, 2005, had been assigned a DEP project number, had been deemed
complete for final agency review before March 15, 2006, and had
proposed development in a mainland coastal center that was not
expired at that time.
We conclude, however, that it was error for DEP to have
relied on Jaylin's original 2004 application, which had been
denied in June 2006, to qualify the applicant for the eighty
percent impervious cover limit of N.J.A.C. 7:7E-5B.4.
In its 2012 Environmental Report, DEP explained that the
impervious cover requirement and coastal center designation
existing at the time of the initial permit application applied
because the revised permit application was submitted as part of
the parties' continuing settlement discussions to resolve the
initial permit denial, which was also pending appeal. In other
words, according to DEP, Jaylin's 2009 and 2010 applications
"relate[d] back" to its original 2004 application, which was
"kept alive" by Jaylin's pending appeal of DEP's 2006 denial and
by the agency's "alternate dispute resolution" (ADR) mechanism.
40 A-4880-11T2
We disagree.
First, after DLUR formally rejected Jaylin's 2004
application, Jaylin filed a "new" application in 2009 and
revised that application in 2010. That is, in September 2007,
DEP's ODR ended ADR with Jaylin on the 2004 application,
declaring that they were "unable to reach an agreement" and
requesting that Jaylin's appeal of DLUR's permit denial be sent
to the OAL for a hearing. The transfer never happened; instead,
Jaylin participated in a pre-application conference with DEP,
and the agency's representative "noted that the anticipated
application would be a new application and would be reviewed
under the revised design and the current regulations." In fact,
Jaylin's counsel declared in a cover letter to its 2009
application that the application was "a resubmission" which
"represents a significantly revised and reduced project that is
proposed as a result of the 2006 denial." And even though DEP
now labels Jaylin's 2009 application its "first revised permit
application," DLUR referred to Jaylin's 2009 application in its
2012 Environmental Report, as "a second CAFRA permit
application." N.J.A.C. 7:7-4.9(b), governing the withdrawal,
resubmission, and amendment of applications, states:
If an application is denied, the
applicant may resubmit an application for a
revised project of the same or reduced scope
on the same site . . . . The resubmitted
41 A-4880-11T2
application will be treated as a new
application, although references may be made
to the previously submitted application. An
applicant who wishes to appeal the denial,
and at the same time revise the application
may do so in accordance with procedures in
N.J.A.C. 7:7-5.1 [(which covers hearing
requests)].
[(emphasis added).]
Furthermore, DEP assigned Jaylin's 2009 application a
project file number different from its 2004 application.
N.J.A.C. 7:7-4.4(a)(1). This is in contrast to when the agency
applied the same 2009 application number to the revised 2010
application that Jaylin submitted during its settlement
negotiations with DEP after it had requested a hearing or ADR on
DEP's 2010 denial. N.J.A.C. 7:7-5.4(a), governing settlements
in response to a hearing request, states: "Any applicant who has
requested a hearing on a permit decision . . . may, at any time
prior to rendering of an initial decision by the [OAL], submit a
revised application for the purpose of negotiating a
settlement."
Second, Jaylin had no vested rights in DLUR's using the
original coastal center boundaries. The December 2011
stipulation of settlement gave Jaylin no such expectation as to
the application of impervious cover limits. Indeed, it could
not do so. Dragon, supra, 405 N.J. Super. at 491-92. As we
have explained, the agency had denied Jaylin's 2004 application,
42 A-4880-11T2
which DLUR noted in the stipulation along with Jaylin's
submissions of revised and then amended applications. In fact,
the stipulation declares that "the Department anticipates
issuance of the requisite permits based on [Jaylin]'s 2009
revised submission." Also, Jaylin did not receive its local
preliminary or final municipal approvals until 2010. Cf. Riggs
v. Long Beach Twp., 101 N.J. 515, 521 (1986) ("[W]hen one party
has obtained a vested right under the prior law, the later law
may not be applied if this will divest that right.").
DEP's reliance on In re CAFRA Permit No. 87-0959-5 Issued
to Gateway Assocs., supra, 152 N.J. at 287, to support its
position that DLUR correctly issued the 2012 CAFRA permit by
applying N.J.A.C. 7:7E-5B.6(f) to Jaylin's 2004 application is
misplaced. In Gateway, supra, after issuing a permit, DEP asked
the permit holder to file an application for modification
because the policy had changed and the project no longer
required intercept parking. Id. at 302. The permit holder did
so, and the court, although declining to reach the issue due to
the appeal's lack of timeliness, id. at 306, could not "conclude
that the DEP abused its discretion by deciding to review only
the modifications to Gateway's project" and not the original
permit application that had been filed. Id. at 304.
Accordingly, we hold that DEP erred by relying on Jaylin's
43 A-4880-11T2
2004 application and then by applying the impervious cover
limits allowed by N.J.A.C. 7:7E-5B.6(f) to issue the CAFRA
permit. Instead, DEP should have applied the impervious cover
limits in accordance with N.J.A.C. 7:7E-5B.6(g) to review the
project proposed by Jaylin after 2005.
B. APPLICATION OF N.J.A.C. 7:7E-5B.6(g)
Given that the impervious cover limits allowed by N.J.A.C.
7:7E-5B.6(f) were inapplicable to Jaylin's project (since DEP
could not rely on Jaylin's 2004 permit application), and
because, for reasons that follow, by virtue of the PEA, the
mainland Toms River Coastal Regional Center had not expired when
Jaylin submitted its 2009 application and 2010 revised
application, DEP should have applied the impervious cover limits
in N.J.A.C. 7:7E-5B.6(g) to review the project.
N.J.A.C. 7:7E-5B.6(g) states:
For purposes of any CAFRA permit
application that was received by the
Department after February 6, 2005 and
proposes a development in a mainland coastal
center . . . that has not expired . . .:
1. The impervious cover limits
. . . for those portions of the site
located within the mainland coastal
center shall be determined [for the
coastal regional center] . . . ,
provided no portion of the proposed
development . . . is located outside
the boundaries of the mainland coastal
center, or in one of the [six
44 A-4880-11T2
enumerated] areas identified [in
N.J.A.C. 7:7E-5B.6(e)].
2. If any portion of the proposed
development . . . is located outside of
the mainland coastal center boundaries,
or in one of the [six enumerated] areas
identified [in N.J.A.C. 7:7E-5B.6(e)],
then the impervious cover limits . . .
for the entire development shall be
determined . . . for the appropriate
Coastal Planning Area.
[(emphasis added).]
Here, we find that the provisions of N.J.A.C. 7:7E-5B.6(g)
were applicable to Jaylin's project and 2009 application and
2010 revised application, because DEP received those
applications after February 2005, and because, as DEP, Jaylin
and appellant EELC correctly assert, the PEA had prevented the
boundaries of the mainland Toms River Coastal Regional Center
from expiring on March 15, 2007.
That is, on September 6, 2008, the Legislature adopted the
PEA, which "automatically suspend[ed]" government "approval[s]"
related to the physical "development" of property from running
out during the "extension period," defined at present as
"beginning January 1, 2007 and continuing through December 31,
2014." N.J.S.A. 40:55D-136.3 and -136.4(a).20
20
Initially, on September 6, 2008, the "extension period" was
defined as "beginning January 1, 2007 and continuing through
July 1, 2010." L. 2008, c. 78, § 3. On January 18, 2010, it
(continued)
45 A-4880-11T2
Under each version, the PEA broadly states:
"Approval" means, except as otherwise
provided in [N.J.S.A. 40:55D-136.4(b)], any
. . . permit issued and center designations
pursuant to [CAFRA], . . . center
designations pursuant to the "State Planning
Act". . . . [and] any municipal, county,
regional, or State approval or permit
granted under the general authority
conferred by State law or rule or
regulation, or any other government
authorization of any development application
or any permit related thereto whether that
authorization is in the form of a permit,
approval, license, certification,
permission, determination, interpretation,
exemption, variance, exception, waiver,
letter of interpretation, no further action
letter, agreement or any other executive or
administrative decision which allows a
development or governmental project to
proceed.
[N.J.S.A. 40:55D-136.3 (emphasis added).]
According to that definition, "[a]pproval" includes center
designations directly and is not limited, as appellants suggest,
to actual agency permits or authorizations.21 We accord
(continued)
was extended through December 31, 2012. L. 2009, c. 336, § 1.
On September 19, 2012, it was extended through December 31,
2014. L. 2012, c. 48, § 2. The Act further states that no
approval will be extended "more than six months beyond the
conclusion of the extension period," or now until June 30, 2015,
depending on the original expiration date of the approval in
question. N.J.S.A. 40:55D-136.4(a).
21
Since Toms River Township submitted its application for plan
endorsement to the State Planning Commission in May 2006, we
find that the exception to extension in N.J.S.A. 40:55D-
(continued)
46 A-4880-11T2
statutory language its ordinary meaning. Town of Morristown v.
Women's Club of Morristown, 124 N.J. 605, 610 (1991). Indeed,
as expressly stated in the definition, the PEA extended center
designations pursuant to CAFRA as well as center designations
made pursuant to the State Planning Act, N.J.S.A. 40:55D-136.3.
The clear wording of the statute encompasses center designations
and any contrary construction limiting the PEA to actual permits
and approvals would render nugatory the additional terms
employed in the definition of "approval." On this score, it is
not proper statutory construction to render a provision
completely meaningless or superfluous. Bergen Commer. Bank v.
Sisler, 157 N.J. 188, 204 (1999).
Appellants further argue that the PEA does not apply here
(continued)
136.4(b)(7) does not apply to preclude any extension of the
mainland Toms River Coastal Regional Center designation. That
provision declares that
[n]othing . . . shall be deemed to extend or
purport to extend:
. . . .
(7) any coastal center designated
pursuant to [CAFRA] that as of March 15,
2007 (a) had not submitted an application
for plan endorsement to the State Planning
Commission, and (b) was not in compliance
with the provisions of the Coastal Zone
Management Rules at N.J.A.C. 7:7E-5B.6[.]
[N.J.S.A. 40:55D-136.4(b)(7).]
47 A-4880-11T2
because the development site contains both wetlands and
threatened and endangered species habitat and thus comes within
the "environmentally sensitive" property exclusion of N.J.S.A.
40:55D-136.4(b)(3), which provides: "Nothing [in this act] shall
be deemed to extend or purport to extend . . . any permit or
approval issued within any environmentally sensitive area
. . . ." However, the PEA specifically excludes from the
definition of "environmentally sensitive area" "regional growth
areas . . . designated in the comprehensive management plan
[CMP] prepared and adopted by the Pinelands Commission . . . or
similar areas designated by the [DEP]." N.J.S.A. 40:55D-136.3.
Jaylin's proposed site is located in a regional growth area and
a suburban planning area and thus comes within the purview of
the PEA.
In sum, because the limits allowed by N.J.A.C. 7:7E-5B.6(f)
were inapplicable to Jaylin's project and because the PEA
prevented the boundaries of the mainland Toms River Coastal
Regional Center from expiring on March 15, 2007, we conclude
that DLUR should have reviewed Jaylin's proposed project in its
2010 revised application under the impervious cover limits
allowed by N.J.A.C. 7:7E-5B.6(g), as the agency did in its March
48 A-4880-11T2
16, 2010 denial of Jaylin's 2009 revised application.22
The difficulty in applying N.J.A.C. 7:7E-5B.6(g) here,
however, is that, in our view, the actual boundaries of the
readopted (and extended by the PEA) mainland Toms River Coastal
Regional Center, and therefore the boundaries of the Coastal
Suburban Planning Area, are unclear. It appears from this
record that DEP never determined, in the context of its review
of Jaylin's 2010 revised permit application, whether any portion
of the proposed "development" lies outside the boundaries of the
mainland coastal center or whether any of the six enumerated
areas listed in N.J.A.C. 7:7E-5B.6(e), which cannot be a part of
any mainland coastal center, were found in the readopted
mainland Toms River Coastal Regional Center before its March
2007 expiration and PEA extension. In addition, the agency also
never determined, in this very same context, whether any of
those six areas were found specifically on Jaylin's property
within the mainland coastal center. These findings are critical
because, pursuant to N.J.A.C. 7:7E-5B.6(g)(1) and (2), they
determine in turn the applicable impervious cover limits. As
22
In its March 16, 2010 decision not to approve Jaylin's 2009
permit application, the DLUR, relying on N.J.A.C. 7:7E-5B.6(g),
found that the project's "impervious coverage shall be
determined by N.J.A.C. 7:7E-5B.4(e)" "for the appropriate
Coastal Planning Area," which in this case is a Coastal Suburban
Planning Area, limiting impervious cover to thirty percent.
49 A-4880-11T2
noted, if any portion of the proposed development is located
outside of the center boundaries, or one of the areas identified
at (e), then the impervious cover limits are determined in
accordance with N.J.A.C. 7:7E-5B.4(e) for the appropriate
Coastal Planning Area, which in this case is a Coastal Suburban
Planning Area, subject to impervious cover limits of thirty
percent.
DEP, of course, is in the best position to evaluate the
proposal under the applicable regulation. "In general,
available and appropriate 'administrative remedies should be
fully explored before judicial action is sanctioned.'" Abbott
v. Burke, 100 N.J. 269, 296 (1985) (quoting Garrow v. Elizabeth
Gen. Hosp. & Dispensary, 79 N.J. 549, 558 (1979)). Accordingly,
we reverse issuance of the permit and remand the matter to DEP
with instructions to apply N.J.A.C. 7:7E-5B.6(e) and determine
whether the applicable mainland coastal center's boundaries were
properly set when they were readopted, and then to apply the
appropriate impervious cover limits pursuant to N.J.A.C. 7:7E-
5B.6(g) and N.J.A.C. 7:7E-5B.4 to Jaylin's latest proposal,
including determining whether any of the six areas listed in
N.J.A.C. 7:7E-5B.6(e) exist on Jaylin's property, before issuing
a CAFRA permit.
50 A-4880-11T2
Reversed and remanded. We do not retain jurisdiction.
51 A-4880-11T2