JOHN DUTCHER VS. PEDRO PEDEIRO(L-4321-15, MIDDLESEX COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1088-14T2
IN RE CAFRA PERMIT NO.
1512-08-0020.1CAF080001
RAILROAD AVENUE, LACEY
TOWNSHIP, OCEAN COUNTY,
NEW JERSEY.
____________________________________
Argued September 20, 2016 – Decided March 29, 2017
Before Judges Koblitz, Rothstadt and Sumners.
On appeal from the Department of Environmental
Protection.
Edward Lloyd argued the cause for appellants
The Sierra Club, Lacey Rail Trail
Environmental Committee, Save Barnegat Bay,
and The American Littoral Society (Columbia
Environmental Law Clinic, Morningside Heights
Legal Services, Inc., attorneys; Mr. Lloyd and
Susan J. Kraham, on the briefs).
Timothy P. Malone, Deputy Attorney General,
argued the cause for respondent New Jersey
Department of Environmental Protection
(Christopher S. Porrino, Attorney General,
attorney; Melissa H. Raksa, Assistant Attorney
General, of counsel; Mr. Malone, on the
brief).
Jared J. Monaco argued the cause for
respondent Township of Lacey (Gilmore &
Monahan, P.A., attorneys; Mr. Monaco, of
counsel and on the brief; Michael S. Nagurka,
on the brief).
PER CURIAM
Respondent, the New Jersey Department of Environmental
Protection (DEP), issued a Coastal Area Facility Review Act
(CAFRA), N.J.S.A. 13:19-1 to -21, permit to respondent Township
of Lacey (Lacey) after denying two prior applications for the same
permit. Lacey needed the permit for construction of a roadway and
an adjacent bike and pedestrian path on an abandoned railroad
right of way (ROW). The proposed roadway is intended to help
alleviate traffic on Route 9 and the bike/pedestrian path is
intended to be incorporated into an existing Ocean County
recreational trail that traverses several towns.
Appellants, Lacey Rail Trail Environmental Committee (LRTEC),
The Sierra Club, Save Barnegat Bay, and the American Littoral
Society, argue that the DEP's decision to issue the permit
constitutes an unexplained summary reversal of the DEP's earlier
denials, a failure to recognize the subject property as public
open space, and that the proposed project does not comply with
CAFRA and related regulations. They also contend that in reaching
its decision, the DEP engaged in impermissible rulemaking.
Moreover, they argue that the DEP's findings were unsupported by
the evidence. We disagree and affirm.
2 A-1088-14T2
The DEP issued the permit to Lacey, "authoriz[ing] the
construction of a new 1.9 mile bypass road . . . within the former
Barnegat Branch Railroad [ROW]." The proposal for the new road,
designated as Railroad Avenue, included two vehicle lanes, with
an additional right-turn lane at one intersection, and a pedestrian
and bike path, separated from the roadway by a two-foot landscaped
buffer. It is considered a bypass road because it connects Lacey
Road to South Street and runs parallel to State Highway Route 9,
for the purpose of "alleviat[ing] traffic congestion" on Route 9
"by providing an alternate route for local traffic."
The DEP's approval included a condition that no new curb cuts
shall be permitted, so that there would be no additional
development along the roadway. It also recognized that limited
clearing of vegetation would be necessary, but it required re-
vegetation of portions of the area and installation of vegetation
buffers as additional conditions.
The DEP's decision to issue the permit for Railroad Avenue's
construction was reached after many years of consideration. The
approved project represented a change from earlier proposals made
in 2006 and 2009 in that it reduced the length of the roadway and
excluded certain areas as suggested by the DEP.
The creation of the bypass road represents a substantial
change from the ROW's historical use by the public. The area was
3 A-1088-14T2
originally part of an approximately fifteen-mile railroad right-
of-way in Ocean County, known as the Barnegat Branch Railroad ROW
owned by the Central Railroad of New Jersey. The railroad
abandoned the ROW in 1973 and since then the railroad ties and
tracks located within the ROW were removed. The ROW has been used
by the public as a walking, jogging, and bike trail.
Lacey acquired a 4.8 miles long and fifty feet wide portion
of the ROW through a 1993 tax foreclosure action. It did not
dedicate the area as open public space, but instead intended to
construct the roadway to help alleviate congestion on Route 9.
Other than keeping the ROW's intersection with other roadways
clear for traffic safety reasons, Lacey did not maintain the
portion of the ROW it acquired by mowing, clearing, or otherwise
improving the property.
In May 2004, Lacey granted Ocean County a twelve-foot-wide
easement along the western edge of the ROW for construction of a
bike path. The following month, the County passed an ordinance
authorizing "the design, permitting, and construction of a
recreational [15.6 mile] trail project" through five
municipalities "to be known as the Barnegat Branch Trail." The
county's plan for the portion located in Lacey was limited to a
seven-foot-wide trail throughout the entirety of the fifty-foot-
wide area owned by Lacey.
4 A-1088-14T2
Beginning in 2005, Lacey sought approval from the DEP to
develop a portion of the ROW as a roadway. In March, the DEP
issued Lacey a permit authorizing the construction of a 1700-foot
(.32-mile) portion of Railroad Avenue in connection with the
anticipated construction of a nearby senior housing project. In
accordance with this permit, a 950-foot portion of Railroad Avenue
was constructed between South Street and Laurel Boulevard before
the permit expired. In April 2006, the DEP denied another
application by Lacey for a permit to construct a .82-mile portion
of Railroad Avenue between Lacey Road and Musket Road/First Street.
The DEP denied the permit application after finding the proposed
construction failed to comply with certain Coastal Zone Management
Rules (CZM Rules) – including those relating to public open space,
N.J.A.C. 7:7E-3.40; location of linear development, N.J.A.C. 7:7E-
6.1; basic location, N.J.A.C. 7:7E-6.2; secondary impacts,
N.J.A.C. 7:7E-6.3; and buffers and compatibility of uses, N.J.A.C.
7:7E-8.13.1 The agency found the proposal also failed to satisfy
three of the criteria set forth in CAFRA Section 10, N.J.S.A.
13:19-10 – specifically, subsections (e), (f), and (g) – though
it found Lacey satisfied the remaining Section 10 criteria.
1
Each of the regulations relied upon by the DEP in response to
the relevant permit applications were recodified, without
significant amendment, effective July 6, 2015. 47 N.J.R. 1392(a).
5 A-1088-14T2
Lacey applied for the CAFRA permit at issue and for a
Freshwater Wetlands Transition Area Waiver in September 2008.
The application sought permission to construct a 2.21-mile road
"within [the] former Barnegat Branch railroad [ROW]" that would
connect Route 9 to Lacey Road. The DEP accepted comments for a
thirty-day period. Those opposed to the proposal argued that the
ROW "should become a linear greenway for pedestrian and bicycle
access linking adjacent Townships." Those in favor argued the
proposed roadway would alleviate traffic on the parallel stretch
of Route 9, "support better response times for emergency
responders, provide an alternative evacuation route in an
emergency, and increase safe access to a local school and church."
The DEP denied the application without prejudice in March
2009, after finding the proposed construction failed to comply
with several CZM Rules, including those pertaining to public open
space, N.J.A.C. 7:7E-3.40; location of linear development,
N.J.A.C. 7:7E-6.1; basic location, N.J.A.C. 7:7E-6.2; secondary
impacts, N.J.A.C. 7:7E-6.3; and buffers and compatibility of uses,
N.J.A.C. 7:7E-8.13. However, the DEP found the proposal satisfied
the criteria set forth in N.J.S.A. 13:19-10.
Lacey appealed the denial of the permit, requesting an
adjudicatory hearing. The matter was referred to the Office of
Administrative Law. Prior to a hearing, Lacey and the DEP entered
6 A-1088-14T2
into settlement discussions that resulted in Lacey submitting
revised plans and related information for the project. The
additional information included revised traffic studies and
related proposals. Based on those revised plans, Lacey and the
DEP executed a stipulation of settlement (Stipulation) on August
3, 2010, and Lacey withdrew its hearing request without prejudice.
The DEP published notice of its intent to issue the permit
in its August 18, 2010 bulletin and accepted public comments until
November 8, 2010. By the end of the comment period, the agency
had received over 600 comments, which "generally addressed
concerns with the need for the project, stormwater impacts,
potential impacts to wetlands, category one waters, special water
resource protection areas, public open space, and the condemnation
of a single family home." The comment submitted by the LRTEC
argued the DEP was required to deny the permit because the
deficiencies found in the earlier application had not been
remedied.2
In its January 11, 2012 bulletin, the DEP published notice
of its intent "to issue [the] CAFRA permit with a hardship
exception for a Special Water Resources Protection Area (SWRPA)."
During the public comment period, the DEP received approximately
2
On March 30, 2011, Lacey and the DEP executed an addendum to
the Stipulation.
7 A-1088-14T2
128 comments, which largely raised the same concerns raised in
response to the DEP's initial notice of intent to issue the permit.
After concerns were raised that the project would have a
negative impact on the freshwater wetlands in the Oak Bluff Avenue
portion of the ROW, the DEP suggested Lacey "further consider and
more closely evaluate" an alternative that "would relocate the
northern terminus of the project" to alleviate the concern. In
response to the DEP's suggestion, Lacey submitted a revised plan
that modified the proposed roadway to avoid the Oak Bluff Avenue
area, thereby reducing its length to 1.9 miles. The DEP published
notice of its intent to issue the CAFRA permit in its July 24,
2013 bulletin, explaining the relation to the earlier Stipulation
and the revisions made to the plans and accepted public comments.
On October 16, 2014, the DEP issued Lacey the challenged
permit and a fifty-five page Final Summary Report explaining its
reasons for its action. In its Summary Report, the DEP analyzed
the project's compliance with the relevant CZM Rules and the CAFRA
Section 10 criteria, and found it fully complied with all rules
and requirements provided Lacey complied with the special
conditions imposed. Moreover, the DEP explained that the basis
for its reconsideration of the earlier applications was the receipt
8 A-1088-14T2
of additional information.3 Notice of the permit's issuance was
published in the DEP's November 5, 2014 bulletin. This appeal
followed.
We begin by acknowledging that our "role in reviewing an
administrative agency's final decision is limited." Univ. Cottage
Club of Princeton N.J. Corp. v. N.J. Dep't of Envtl. Prot., 191
N.J. 38, 48 (2007) (citing In re Taylor, 158 N.J. 644, 656 (1999)).
We will "reverse [an agency's final decision] only if [we]
'conclude[] that [its] decision . . . is arbitrary, capricious,
or unreasonable, or is not supported by substantial credible
evidence in the record as a whole.'" In re Adoption of Amendments
to Water Quality Mgmt. Plans, 435 N.J. Super. 571, 582 (App. Div.)
(alteration in original) (quoting J.D. v. N.J. Div. of
Developmental Disabilities, 329 N.J. Super. 516, 521 (App. Div.
2000)), certif. denied, 219 N.J. 627 (2014). An agency's findings
of fact "are considered binding on appeal when supported by
adequate, substantial and credible evidence." Taylor, supra, 158
N.J. at 656 (quoting Rova Farms Resort, Inc. v. Inv'rs Corp., 65
N.J. 474, 484 (1974)). "The burden of demonstrating that the
3
These documents included a draft of Lacey's 1998 addendum to
its Master Plan and a 2004 report relating to the reexamination
of its master plan. These documents indicate that Lacey did not
intend to keep the property in its current condition, but rather
called for the development of the roadway.
9 A-1088-14T2
agency's action was arbitrary, capricious or unreasonable rests
upon the [party] challenging the administrative action." In re
Adoption of Amendments to Water Quality Mgmt. Plans, supra, 435
N.J. Super. at 582 (alteration in original) (quoting In re Arenas,
385 N.J. Super. 440, 443-44 (App. Div.), certif. denied, 188 N.J.
219 (2006)). We accord deference to a final agency action, and
will not substitute our judgment for the expertise of an agency
"so long as that action is statutorily authorized and not otherwise
defective because arbitrary or unreasonable [or not supported by
the record]." In re Authorization for Freshwater Wetlands Gen.
Permits, 372 N.J. Super. 578, 593 (App. Div. 2004) (alteration in
original) (quoting In re Distrib. of Liquid Assets, 168 N.J. 1,
10 (2001)).
Our "substantial deference [also extends] to an agency's
interpretation and application of its own regulations,
particularly on technical matters within the agency's special
expertise." Pinelands Pres. All. v. N.J. Dep't of Envtl. Prot.,
436 N.J. Super. 510, 524 (App. Div.), certif. denied, 220 N.J. 41(2014). However, we are "in no way bound by the agency's
interpretation of a statute or its determination of a strictly
legal issue." US Bank, N.A. v. Hough, 210 N.J. 187, 200 (2012)
(quoting Univ. Cottage Club of Princeton N.J. Corp., supra, 191
N.J. at 48). "When 'the issue involves the interpretation of
10 A-1088-14T2
statutes and regulations, it is a purely legal issue, which [is]
consider[ed] de novo.'" Pinelands Pres. All., supra, 436 N.J.
Super. at 524-25 (quoting Klawitter v. City of Trenton, 395 N.J.
Super. 302, 318 (App. Div. 2007)).
Applying these standards, we turn first to appellants'
contention that the DEP "erred as a matter of law" by failing to
make specific findings of fact to support its conclusion that the
proposed project complied with N.J.S.A. 13:19-10(e) and (f).4
They argue the DEP, instead, "summarily recite[d] the statutory
language of CAFRA, which does not amount to a finding of fact" and
that "[t]his [c]ourt must reject the permit on this basis alone."
Respondents argue that the Summary Report contains significant
4
N.J.S.A. 13:19-10 provides, in pertinent part:
A permit may be issued pursuant to this act
only upon a finding that the proposed
development:
. . . .
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.
f. Is located or constructed so as to
neither endanger human life or property
nor otherwise impair the public health,
safety, and welfare.
11 A-1088-14T2
discussion of the facts underlying its findings with respect to
N.J.S.A. 13:19-10(e) and (f), and that appellants improperly
consider the agency's statement of its findings "in a vacuum,
ignoring the preceding detailed and extensive Summary Report that
provides the context for these findings."
When deciding whether to issue a CAFRA permit pursuant to
N.J.S.A. 13:19-10, the DEP is required to consider whether the
applicant satisfies the seven considerations listed in the
statute. See N.J.S.A. 13:19-10 (a) – (g).
We conclude from our review that the DEP satisfied its
obligation to "make findings under the standards in N.J.S.A. 13:19-
10." In re Protest of Coastal Permit Program Rules, 354 N.J.
Super. 293, 332 (App. Div. 2002). With respect to N.J.S.A. 13:19-
10(e), the DEP stated in its Summary Report that it found that
"[d]evelopment of the project as proposed would not interfere with
the natural functioning of plant, animal, fish and human life
processes." As to N.J.S.A. 13:19-10(f), the DEP found: "The
project would not endanger human life or property. The [DEP] has
determined that the project promotes public health, safety and
welfare by providing a safe alternative for local travel trips."
In reaching those conclusions, the DEP addressed issues regarding
"[e]ndangered or threatened wildlife or plant species habitats"
and issues of "public health, safety and welfare" in the Summary
12 A-1088-14T2
Report. For example, the DEP found no evidence of any potential
impact to threatened or endangered wildlife or plant species. The
agency investigated claims of the project's potential for
interfering with barred owl habitats and concluded there was no
danger, nor did the area contain any marine fisheries, endangered
or threatened species habitats or unique wildlife habitat. After
considering the traffic studies and related information, the DEP
found that the roadway would improve the quality of life for the
residents by relieving traffic congestion. It made specific
findings concerning the benefit of the project to public health
and safety, noting the roadway would provide a safe alternative
for travel along Route 9, while still allowing the benefits of a
walking and bike trail as part of the county's Barnegat Branch
Trail.
Appellants next argue the DEP's issuance of the permit must
be reversed because, in finding the proposal complied with the
rules regarding public open space, N.J.A.C. 7:7E-3.40, and
secondary impacts, N.J.A.C. 7:7E-6.3, the DEP "applied previously
unannounced administrative standards" for determining whether a
property would be considered open space. They contend the new
standards were the product of rulemaking, requiring notice and
comment prior to their application, because they were "not clearly
inferable from the applicable regulatory provision[s] or enabling
13 A-1088-14T2
legislation," did not "reflect a policy previously expressed by
the agency," and lacked any "indication that [they would] not
apply generally and uniformly to similarly situated persons
seeking CAFRA permits in the future." Respondents argue that
appellants' contention fails to appreciate the distinction between
the agency considering a variety of factors to make its finding
and setting new standards for information it will consider in
making a determination.
"The [Administrative Procedure Act (APA)] defines an
administrative rule as an agency's 'statement of general
applicability and continuing effect that implements or interprets
law or policy, or describes the organization, procedure or practice
requirements' of the agency." In re Authorization for Freshwater
Wetlands Statewide Gen. Permit 6, 433 N.J. Super. 385, 413 (App.
Div. 2013) (quoting N.J.S.A. 52:14B-2(e)). "Prior to adopting or
amending any rule, an administrative agency must give notice of
its intended action and afford interested parties a 'reasonable
opportunity to submit data, views or arguments, orally or in
writing.'" Univ. Cottage Club of Princeton N.J. Corp., supra, 191
N.J. at 53 (citation omitted) (quoting N.J.S.A. 52:14B-4(a)(3)).
In evaluating whether an agency's determination announces a
rule triggering the notice requirement, courts consider whether
the determination:
14 A-1088-14T2
(1) is intended to have wide coverage
encompassing a large segment of the regulated
or general public, rather than an individual
or a narrow select group; (2) is intended to
be applied generally and uniformly to all
similarly situated persons; (3) is designed
to operate only in future cases, that is,
prospectively; (4) prescribes a legal standard
or directive that is not otherwise expressly
provided by or clearly and obviously inferable
from the enabling statutory authorization; (5)
reflects an administrative policy that (i) was
not previously expressed in any official and
explicit agency determination, adjudication
or rule, or (ii) constitutes a material and
significant change from a clear, past agency
position on the identical subject matter; and
(6) reflects a decision on administrative
regulatory policy in the nature of the
interpretation of law or general policy.
[Metromedia, Inc. v. Dir., Div. of Taxation,
97 N.J. 313, 331-32 (1984).]
"The pertinent evaluation focuses on the importance and weight of
each factor, and is not based on a quantitative compilation of the
number of factors which weigh for or against labeling the agency
determination as a rule." In re Provision of Basic Generation
Serv., 205 N.J. 339, 350 (2011).
With respect to the public open space rule, N.J.A.C. 7:7E-
3.40,5 appellants contend the DEP "announce[d] four new standards
5
The rule in effect at the time the permit was issued
defined public open space as:
land areas owned or maintained by State,
Federal, county and municipal agencies or
private groups . . . and used for or dedicated
15 A-1088-14T2
for [determining] what constitutes 'public open space:'" (1) "the
'purpose' for which the land is acquired"; (2) whether the land
is "designated as 'a Suburban Planning Area'" rather than "'a park
of natural area' on the State Development and Redevelopment Plan
Map"; (3) whether the land is "'list[ed] on the Protected Open
Spaces System Map' or 'in the County Recreation and Open Space
Inventory'"; and, (4) whether the land is "'identified as an
acquired property on the Ocean County Natural Lands Trust website'"
or was purchased with funds from the Ocean County Natural Lands
Trust (the County Lands Trust).
The DEP argues, with respect to "standards" two and three,
that the land's status in the referenced documents was not a new
standard, as the documents were merely considered "as factors
which supported Lacey's position that the ROW was not intended to
be public open space." As to the fourth "standard," the DEP argues
that "whether land is held by the New Jersey Natural Lands Trust
is expressly a consideration in N.J.A.C. 7:7E-3.40(a)" and that
to conservation of natural resources, public
recreation, visual or physical public access
or, wildlife protection or management. Public
open space also includes, but is not limited
to . . . lands held by the New Jersey Natural
Lands Trust . . . and designated Natural Areas
within DEP-owned and managed lands.
[N.J.A.C. 7:7E-3.40(a) now codified at
N.J.A.C. 7:7-9.38.]
16 A-1088-14T2
it "addressed whether Natural Lands Trust funds were used to
acquire the ROW or easement in response to public comments
regarding the use of these funds."
Lacey argues the first "standard" was not a new standard
because "a plain reading of the [public open space rule] indicates
that purpose [for which the land is acquired] is already an
enumerated standard." As to the remaining "standards," Lacey
argues they were simply some of many factors considered in finding
that the land was not public open space, and therefore not newly
announced standards.
We do not discern from the record that the DEP engaged in
rulemaking when it determined the subject property was not public
open space. In its Summary Report, the DEP relied on its
regulation for the definition and concluded the land was not public
open space after finding it was purchased by Lacey "for the purpose
of constructing the road project" and "was not purchased or
dedicated for conservation, public recreation, public access, or
wildlife protection." The DEP noted that "the site [wa]s not
designated as a park or natural area" on the State Development and
Redevelopment Plan Map, rather as a Suburban Planning Area.
Moreover, the site was not listed as a protected open space on the
county's Protected Open Spaces System Map, "not identified as open
space in the County Recreation and Open Space Inventory," not
17 A-1088-14T2
identified as having been acquired by the County Lands Trust, and
was not purchased with any money from that trust. It also stated
that the County "never envisioned a [fifty-foot] wide multi-use
trail in Lacey," noting that the proposal was consistent with the
County's 2007 Barnegat Branch Trail Conceptual Plan, which
envisioned a seven-foot-wide trail for pedestrians and cyclists
separated by a buffer from a thirty-eight-foot-wide roadway.
We view the appellants' argument that these findings amounted
to the DEP imposing new standards in its determination of whether
the ROW constituted public open space to be without merit. The
first three considerations complained of were relevant
considerations to the determination of whether the ROW was public
open space, as they speak to whether the land was "used for or
dedicated to conservation of natural resources, public recreation,
visual or physical public access or, wildlife protection or
management." N.J.A.C. 7:7E-3.40(a). As for the fourth
consideration, the definition of public open space clearly
contemplates the land's relationship to the land trusts, as it
includes in its definition of public open space "lands held by the
New Jersey Natural Lands Trust." Ibid.The DEP's consideration of these four factors did not qualify
as rulemaking. See Metromedia, supra, 97 N.J. at 331-32. There
is no indication they are "intended to have wide coverage[,]
18 A-1088-14T2
. . . be applied generally and uniformly," or apply only
prospectively. Id. at 331. To the extent they could be considered
a legal standard, they are "clearly and obviously inferable" from
the public open space rule, see N.J.A.C. 7:7E-3.40(a). To the
extent they could be considered as representing an administrative
policy, there is nothing indicating they have never been considered
before or are a "material and significant change from a clear,
past [DEP] position" on what constitutes public open space.
Metromedia, supra, 97 N.J. at 331. Finally, there is nothing to
suggest these considerations "reflect[] a decision on
administrative regulatory policy in the nature of the
interpretation of law or general policy." Id. at 331-32.
We turn next to appellants argument that, in finding the
proposal satisfied the secondary impacts rule, N.J.A.C. 7:7E-6.3,6
6
The rule regarding secondary impacts defines them as "the
effects of additional development likely to be constructed as a
result of the approval of a particular proposal." N.J.A.C. 7:7E-
6.3(a). The regulation also states:
Secondary impact analysis must include an
analysis of the likely geographic extent of
induced development, its relationship to the
State Development and Redevelopment Plan, an
assessment of likely induced point and non-
point air and water quality impacts, and
evaluation of the induced development in terms
of all application Coastal Zone Management
rules.
[N.J.A.C. 7:7E-6.3(b)(2) now codified at
N.J.A.C. 7:7-14.3.]
19 A-1088-14T2
the DEP "announce[d] a new administrative standard": whether the
land is "inclu[ded] in the State Development and Redevelopment
Plan as a Suburban Planning Area." Respondents argue the land's
designation as a Suburban Planning area was not a new standard,
but rather a factor considered in determining what secondary
impacts the proposed roadway would have.
We again conclude the DEP did not engage in rulemaking in
reaching its decision to issue the CAFRA permit to Lacey. In
finding that the proposal complied with the secondary impacts
rule, the DEP considered that the proposed road "traverses an area
of Lacey Township that consists primarily of residential and
commercial development," that "the site is designated a Suburban
Planning Area according to the State Development and Redevelopment
Plan," and that, according to information provided by Lacey, the
surrounding area was already largely developed, such that "the
proposed roadway will not induce further development." The DEP
also considered that conditions imposed on the permit would prevent
construction of "additional future points of ingress/egress to the
new roadway" and that the proposal's inclusion of a trail for
pedestrians and cyclists made the project "consistent with" the
County's Barnegat Branch Trail Conceptual Plan.
The DEP's consideration of the land's "inclusion in the State
Development and Redevelopment Plan as a Suburban Planning Area"
20 A-1088-14T2
did not impose a new standard, thereby constituting rulemaking.
First, the text of the secondary impacts rule requires the DEP to
consider the property's "relationship to the State Development and
Redevelopment Plan," N.J.A.C. 7:7E-6.3(b)(2), so it cannot be said
that considering the site's designation as a Suburban Planning
Area under that plan was a newly announced standard. Moreover,
there is nothing to suggest the site's designation was
determinative, or even the most significant factor in the DEP's
finding, and the DEP expressly considered several other factors.
Even if the DEP's consideration of the site's designation satisfied
the first three or final Metromedia factors, the fact that the
text of the secondary impacts rule required the DEP to consider
its designation prevents the DEP's consideration from meeting the
fourth and fifth criteria, and greatly outweighs the remaining
factors. See Metromedia, supra, 97 N.J. at 331-32; In re Provision
of Basic Generation Serv., supra, 205 N.J. at 350. The DEP imposed
no new standards for the public open space and secondary impacts
rules, and thus did not engage in improper rulemaking.
Appellants next contend the DEP's decision to issue the permit
was arbitrary and capricious, as it was an "[u]nexplained, summary
reversal[]" of its 2006 and 2009 decisions to deny a similar permit
and the findings underlying those denials, and was
"unsubstantiated by and contrary to the evidence." They claim the
21 A-1088-14T2
DEP failed to explain its bases for finding that the requirements
it had previously found unsatisfied were fulfilled by the new
proposal. Appellants specifically cite to the DEP's different
determinations as to N.J.S.A. 13:19-10(e), (f), and (g), and the
rules regarding public open space, N.J.A.C. 7:7E-3.40; location
of linear development, N.J.A.C. 7:7E-6.1; basic location, N.J.A.C.
7:7E-6.2; secondary impacts, N.J.A.C. 7:7E-6.3; and buffers and
compatibility of uses, N.J.A.C. 7:7E-8.13. We disagree.
We are satisfied the DEP properly exercised its right to
consider and grant the revised 2009 application because it
explained its reasons for its divergent opinions. "In the absence
of some legislative restriction, administrative agencies have the
inherent power to reopen or to modify and to rehear orders that
have been entered." In re Van Orden, 383 N.J. Super. 410, 419
(App. Div. 2006) (quoting Burlington Cty. Evergreen Park Mental
Hosp. v. Cooper, 56 N.J. 579, 600 (1970)). However, in doing so,
an agency is not "free to disregard completely issues that were
fully and fairly resolved" in its earlier decision. Trap Rock
Indus., Inc. v. Sagner, 133 N.J. Super. 99, 110 (App. Div. 1975),
aff'd by an equally-divided court, 69 N.J. 599 (1976). "The power
to reconsider must be exercised reasonably, with sound discretion
reflecting due diligence, and for good and sufficient cause."
Ibid. Thus, in determining whether to reconsider a prior
22 A-1088-14T2
determination, an agency should "balance[e] . . . such factors as
new developments or even new evidence of old developments, the
advantages of repose, party reliance, the thoroughness of the
earlier decision and the showing of illegality, fraud, mistake and
the like." Ibid.Here, although the DEP's 2014 decision was effectively a
reconsideration of its 2006 and 2009 denials, the approved
application was a "new application," N.J.S.A. 13:19-15; N.J.A.C.
7:7-4.9(b) (now codified at N.J.A.C. 7:7-26.9), that the DEP
granted based upon its recognition of its own error, new
information and revised plans. Nevertheless, because the DEP
reached different conclusions in its findings as to Lacey's
compliance with particular requirements and in its ultimate
decision on the application, the DEP was required to express its
reasons for the divergence, though it need not have been explained
in those terms. See Pinelands Pres. All., supra, 436 N.J. Super.
at 532-33.
We conclude that the DEP satisfied its obligation to explain
its reasons for granting Lacey the CAFRA permit in 2014 when it
had previously denied similar applications. Contrary to
appellants' argument, the DEP was not required to expressly rebut
its previous findings, but had to consider the most recent
application anew and provide an adequate explanation for its
23 A-1088-14T2
findings with respect to the specific application. Nevertheless,
we address the various contentions as to each of the DEP's
considerations serially and compare them to the DEP's earlier
determinations.
In 2006, the DEP found the requirements of Section 10(e) were
not satisfied because the project "would effectively block the
County['s] . . . ability to convert the [ROW] to a passive/active
car free recreational use, and would also result in loss of the
values and functions the abandoned rail line has started to
provide, such as a vegetative buffer and wildlife habitat." In
2014, the DEP found the revised project "would not interfere with
the natural functioning of plant, animal, fish and human life
processes." The agency also determined that the project satisfied
N.J.S.A. 13:19-10(e) because it would cause only "minimal feasible
interference." Although the agency discussed its findings while
addressing the rule on location of linear development, N.J.A.C.
7:7E-6.1 and the supporting evidence, its considerations applied
equally to its determination of Lacey's compliance with N.J.S.A.
13:19-10(e). Although the project would require the clearing of
vegetation along the ROW "[t]he project [was] designed to minimize
the vegetation disturbance to maximize the buffering between the
proposed road and the existing residential developments." It also
found that the project would have "minimal feasible interference"
24 A-1088-14T2
with endangered or threatened wildlife and with SWRPA vegetation.
It explained that these conditions were different from the prior
application due to revisions to the earlier design that resulted
in the elimination of a "segment of the road" and a change to its
terminus.
Addressing N.J.S.A. 13:19-10(f), in 2006, the DEP found the
project would not promote the public welfare, as it was "in close
proximity to existing homes[,] . . . would not offer a car free
pedestrian transportation link between the [five municipalities],
and . . . serv[ed] only to promote higher vehicle miles as opposed
to promoting recreational uses such as biking and walking." It
also noted that the ROW had "developed into a naturally vegetated
buffer to houses along the [ROW], a linear wildlife corridor and
a car free public open space providing a human powered linkage
amongst five municipalities." In 2014, the agency found it used
an improper definition of public space, and applying the correct
definitions, found Lacey's revised proposal "promotes public
health, safety and welfare by providing a safe alternative for
local travel trips," and "would not endanger human life or
property." Relying on revisions to the plans and new traffic
studies, it found that the project would "provid[e] a safe
alternative for local travel trips," and by its earlier findings
25 A-1088-14T2
that the project would allow for "enhanced emergency access" in
the area and would "not impact private or public property."
Turning to appellants' argument about the DEP's decision
regarding N.J.S.A. 13:19-10(g),7 they contend that the DEP failed
to explain its basis for finding the proposal complied with the
provision after determining earlier that it did not and that the
DEP's finding of compliance was the result of its reliance upon
its incorrect determination that the ROW did not constitute public
open space. We disagree.
In 2006, the DEP found the project did not satisfy the
statutory criteria because it "would greatly reduce" the ROW's
function as a "vegetative buffer area between the existing
residential properties on the west and the commercial properties
on the east." In 2014, the DEP found "[t]he project will not
impact unique or irreplaceable land types, historical or
archeological areas, or existing public scenic attributes." In
so finding, it cited its determination that the site was not public
open space, did not contain any historic properties, and the New
Jersey Historic Preservation Office's view that "the project will
have no effect on historic properties and . . . that there is no
7
N.J.S.A. 13:19-10(g) states that a permit be issued only if
the DEP finds the proposal "[w]ould 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." N.J.S.A. 13:19-10(g).
26 A-1088-14T2
need for further culture resource consideration within the project
area." The DEP's finding that the project satisfied N.J.S.A.
13:19-10(g) was also supported by its earlier finding that the
project would not cause "permanent or long-term loss of any unique
or irreplaceable areas" and the evidence supporting that finding
and by the information cited regarding the absence of any
historical areas in the project area.
Next, appellants argue that the agency failed to adequately
explain its current finding that the proposal complied with the
public open space rule, N.J.A.C. 7:7E-3.40,8 when it found the
8
The public open space rule in effect at the time of the
permit decisions provided, in relevant part:
(a) Public open space constitutes land areas
owned or maintained by State, Federal, county
and municipal agencies or private groups . .
. and used for or dedicated to conservation
of natural resources, public recreation,
visual or physical public access or, wildlife
protection or management. Public open space
also includes, but is not limited to . . .
lands held by the New Jersey Natural Lands
Trust . . . and designated Natural Areas
within DEP-owned and managed lands.
. . . .
(c) Development that adversely affects
existing public open space is discouraged.
(d) Development within existing public open
space is conditionally acceptable, provided
that the development is consistent with the
character and purpose of public open space,
27 A-1088-14T2
rule was not satisfied in 2006 and 2009. They further argue there
is no support for the DEP's claim that Lacey purchased the ROW for
the purpose of constructing a roadway. They contend that the
area's "actual use" as recreational space for decades established
the public use required by the rule. Moreover, appellants argue
that the DEP's determination that the ROW was not public open
space was not supported by the ROW's designation as a Suburban
Planning Area, exclusion from the Protected Open Spaces System Map
and the County Recreation and Open Space Inventory, or its
independence from the County Lands Trust.
The DEP found in 2006 and 2009 that the ROW "ha[d] been
serving as public open space since its abandonment in 1973 and
[that use] was further enhanced by the removal of tracks and
railroad ties," and that "[s]ite inspections . . . revealed use
by local citizens as evidenced by tracks left by walkers/joggers
and bike tires." It further noted that the County had
"[recognized] the value of the [ROW] as public open space by
passing [an ordinance] for development of a multi[-]use trail
[fourteen] miles long," serving the five municipalities through
which the ROW passed, and that using the full width of the ROW for
as described by the park master plan when such
a plan exists.
[N.J.A.C. 7:7E-3.40 now codified at N.J.A.C.
7:7-9.38.]
28 A-1088-14T2
the trail "has the potential of providing a safe car free
environment to thousands of various users." While the DEP
acknowledged that the proposed road would "divert some locally
generated traffic away from Route 9," it found those benefits
would not be "significant enough to improve [the] existing poor
conditions on this section of Route 9." It concluded that, because
it was "not able to find that the construction of the project as
proposed [would] not result in an adverse impact to existing public
open space," Lacey failed to demonstrate compliance with the public
open space rule.
In granting the permit in 2014, the DEP concluded that Lacey
had demonstrated compliance with the rule, finding that the ROW
did not constitute public open space and that the proposed road
would "not adversely affect existing public open space" and would
in fact expand public open space in Lacey. In so concluding, the
DEP began by acknowledging that its initial decision on the
application "found that the proposed roadway would result in the
loss of open space," but that it was "reconsider[ing] its prior
finding" based upon information that "was not provided and/or
considered at the time of the original permit review." It
explained that the land was purchased by Lacey "for the purpose
of constructing the road project" and "was not purchased or
dedicated for conservation, public recreation, public access, or
29 A-1088-14T2
wildlife protection," and concluded the land "[t]herefore . . .
is not considered public open space." The DEP further noted that
the ROW was "not designated as a park or natural area" on the
State Development and Redevelopment Plan Map, rather as a Suburban
Planning Area, was not listed as a protected open space on the
county's Protected Open Spaces System Map, was "not identified as
open space in the County Recreation and Open Space Inventory," was
not identified as having been acquired by the County Lands Trust,
and was not purchased with any money from the trust. The agency
further stated that the County "never envisioned a 50-foot wide
multi-use trail in Lacey," noting that the proposal was consistent
with the County's 2007 Barnegat Branch Trail Conceptual Plan,
which envisioned a seven-foot-wide trail for pedestrians and
cyclists separated by a buffer from a thirty-eight-foot-wide
roadway.
Significantly, there was no evidence that Lacey took any
steps to support or encourage the public's use of the ROW as a
pedestrian and bike trail beyond the alleged removal of railroad
tracks and ties9 – for example, by pruning trees, removing debris,
clearing vegetation, or otherwise maintaining the ROW. Compare
9
It is not clear whether Lacey undertook the removal. The
removal would be necessary in any event for the construction of a
roadway and the adjacent walking and bike paths.
30 A-1088-14T2
Cedar Cove v. Stanzione, 122 N.J. 202, 216-18 (1991) (finding
appropriate application of the Green Acres Land Acquisition and
Recreation Opportunities Act, N.J.S.A. 13:8A-35 to -55, where a
municipality encouraged the public's use of property for
recreational purposes and maintained property for that purpose).
The DEP recognized, however, the public's unofficial use of the
property for those purposes and considered Lacey's plan for the
construction of a "pedestrian/bike trail" as one of the intended
uses, to be consistent with the use made of the ROW by the public.
Under these circumstances, the DEP correctly determined that the
entire property was not "dedicated to" public use, or "used for"
those purposes by the public with Lacey's facilitation or
participation. What use the public made of the land could continue
after the project.
Appellants also argue that the DEP failed to adequately
explain why it found the proposal complied with the rule on
location of linear development, N.J.A.C. 7:7E-6.1,10 when it found
10
A "linear development" is "a development with the basic
function of connecting two points, such as a road, drive, public
walkway, [or] railroad." N.J.A.C. 7:7E-1.8 (now codified at
N.J.A.C. 7:7-1.5). The rule on location of linear development in
effect at the time of the permit decisions provides, in relevant
part:
(a) A linear development, as defined at
N.J.A.C. 7:7E-1.8, shall comply with the
specific location rules to determine the most
acceptable route, to the maximum extent
practicable. If part of the proposed
31 A-1088-14T2
the rule was not satisfied in 2006 and 2009. Specifically, they
argue that because many of the proposal's attributes cited by the
DEP in finding the rule was satisfied were not part of the earlier
applications or relied upon in those applications' denials, they
cannot justify the DEP's change in position.
alignment of a linear development is found to
be unacceptable under the specific location
rules, that alignment (perhaps not the least
possible distance) may nonetheless be
acceptable, provided the following conditions
are met:
1. There is no prudent or feasible
alternative alignment which would have
less impact on sensitive areas and marine
fish or fisheries as defined at N.J.A.C.
7:7E-8.2;
2. There will be no permanent or long-
term loss of unique or irreplaceable
areas;
3. Appropriate measures will be used to
mitigate adverse environmental impacts
to the maximum extent feasible, such as
restoration of disturbed vegetation,
habitats, and land and water features;
and
4. The alignment is located on or in
existing transportation corridors and
alignments, to the maximum extent
practicable.
[N.J.A.C. 7:7E-6.1 now codified at N.J.A.C.
7:7-14.1.]
32 A-1088-14T2
In 2006 and 2009, the DEP found that the ROW had been serving
as public open space, and found that the proposed construction
"would effectively block the [County's] ability to convert the
[ROW] to a passive/active car free recreational use and would also
result in loss of the values and functions the abandoned rail line
ha[d] started to provide, such as a vegetative buffer and wildlife
habitat." As "the construction of the project would result in a
permanent loss of a unique and irreplaceable area," the DEP found
Lacey's proposals had failed to demonstrate compliance with this
rule.11
In the 2014 Summary Report, the DEP began by acknowledging
that it was reconsidering its prior findings and concluded that
the proposal was now in compliance with the rule on linear
development. In doing so, it first noted that the revisions
eliminated the Oak Bluff Avenue portion of the road, thereby
"eliminat[ing] any disturbances to wetland transition areas as
well as . . . [one] associated [SWRPA] disturbance." Though
another SWRPA disturbance was "unavoidable," it would "be
compensated for by the restoration of . . . a disturbed SWRPA at
11
While appellants argue the DEP failed to explain why the
proposal would no longer result in the "permanent or long-term
loss of [a] unique or irreplaceable area[,]" that finding was
largely unexplained in the earlier denials and, given that the
proposal provided for a pedestrian/bike trail and did not affect
any "unique wildlife habitat," it is unclear what basis there
would be for finding such a loss.
33 A-1088-14T2
the same location." The DEP found that there was no possible
"alternative alignments" due to existing developments, but that
the proposed construction would "not result in any disturbance to
wetlands or transition areas, or habitat for endangered or
threatened species, or marine fish or fisheries" or to any "unique
wildlife habitat[s]," and therefore would not result in any
"permanent or long-term loss of unique or irreplaceable areas."
After reciting the history of the Barnegat Branch Trail, the DEP
again noted that the roadway would "not preclude the development
of [a] pedestrian/bike trail as envisioned by the Barnegat Branch
Trail Conceptual Plan." Finally, the DEP found that the project
was "designed to minimize the vegetative disturbance to maximize
the buffering between the proposed road and the existing
residential developments" – with "a minimum buffer of [fifteen]
feet" – prohibited the future construction of additional points
of "ingress and egress to the road," and was "located within an
existing transportation corridor."
Appellants also contend that the DEP failed to adequately
explain why it found the proposal complied with the basic location
rule, N.J.A.C. 7:7E-6.2,12 which it found was not satisfied in 2006
12
The basic location rule provides:
(a) A location may be acceptable for
development under N.J.A.C. 7:7E-3, 4, 5, 5A,
5B and 6, but the Department may reject or
34 A-1088-14T2
and 2009. Specifically, they argue the DEP's finding of compliance
is flawed because it failed to address "how approval of the
proposed development is 'reasonably necessary'" to promote public
health, safety, and welfare, the "previous bases for denial," or
why the traffic benefits "outweigh[] the previous public health
and environmental justifications for denial."
The DEP found the rule was not satisfied in 2006 and 2009
because the proposals failed to meet subsections (1) and (3).
Specifically, it found the project did "not promote public welfare
[because it] serv[ed] only to promote higher vehicle miles as
opposed to promoting recreational uses such as biking and walking."
In 2006, the DEP found the project did not "enhance the natural
environment" because the ROW was "a natural area on the mend" and
"[c]onstruction of the proposed road would eliminate most of any
naturally re-established habitat." It provided no reason for its
conditionally approve the proposed
development of the location as reasonably
necessary to:
1. Promote the public health, safety, and
welfare;
2. Protect public and private property,
wildlife and marine fisheries; and
3. Preserve, protect and enhance the
natural environment.
[N.J.A.C. 7:7E-6.2 now codified at N.J.A.C.
7:7-14.2.]
35 A-1088-14T2
2009 finding that the proposal did not enhance the natural
environment.
In finding the rule satisfied in 2014, the DEP again
acknowledged that it was reconsidering its prior finding, based
in part on Lacey's revised plans' elimination of the Oak Bluff
Avenue portion included in the 2009 proposal. It found that the
project would "promote[] public health, safety, and welfare" by
alleviating traffic congestion on Route 9 and providing a "robust
transportation network, which allows for flexibility and enhanced
emergency access." After noting the proposal would "not impact
private or public property" or "impact endangered or threatened
species, wetlands, marine fisheries or special environments," the
DEP found it fully complied with the basic location rule.
Appellants also argue that the DEP failed to adequately
explain why it found the proposal complied with the secondary
impacts rule, N.J.A.C. 7:7E-6.3,13 which it found was not satisfied
13
The secondary impacts rule provides in pertinent part:
(a) Secondary impacts are the effects of
additional development likely to be
constructed as a result of the approval of a
particular proposal. Secondary impacts can
also include traffic increases, increased
recreational and any other offsite impacts
generated by onsite activities which affect
the site and surrounding region.
(b) Coastal development that induces
further development shall demonstrate, to the
36 A-1088-14T2
in 2006 and 2009. They argue the DEP ignored its prior findings
that the roadway would have a significant negative impact on the
County's planned multi-use trail and existing public open space,
and improperly relied on the claim that the Barnegat Branch Trail
was designed with the roadway in mind, as the trail plan predated
the first roadway proposal.
In 2006, the DEP concluded the secondary impacts rule was not
satisfied because Lacey had failed to "demonstrate[] that the
secondary impacts of the development will satisfy the [CZM] rules."
maximum extent possible, that the secondary
impacts of the development will satisfy the
[CZM] rules. The [DEP] may restrict coastal
development from connecting to an approved
infrastructure in order to prevent adverse
impacts to special areas and to protect and
preserve coastal resources.
(1) The level of detail and areas
of emphasis of the secondary impact
analysis are expected to vary depending
upon the type of development. . . .
(2) Secondary impact analysis must
include an analysis of the likely
geographic extent of induced
development, its relationship to the
State Development and Redevelopment
Plan, as assessment of likely induced
point and non-point air and water quality
impacts, and evaluation of the induced
development in terms of all applicable
[CZM] rules.
[N.J.A.C. 7:7E-6.3 now codified at N.J.A.C.
7:7-14.3.]
37 A-1088-14T2
Its conclusion was based on Lacey's failure to provide analyses
of "what intersections would be impacted by" construction of the
road, the capacity of "any receiving roadway," and which areas of
Lacey were expected to experience increased "development pressure"
as a result of the new road. The DEP noted that, while the project
was proposed to help alleviate traffic on Route 9, "[l]ong term
traffic management of Route 9" would still require implementation
of "a Comprehensive Route 9 Corridor Plan." The DEP also relied
upon the "significant secondary impact on Ocean County's plan to
construct a multi-use trail," the lack of support for the project
from the adjacent towns, and the fact that the "construction as
proposed would effectively negate the significant public monies
expended by Ocean County."
The DEP expressed similar concerns in 2009, finding
noncompliance based on the "increased roadway capacity" that would
result from the new road and that capacity's "potential to promote
additional growth areas within the Township." It also once again
relied upon the lack of a comprehensive corridor plan, the impact
on the County's planned multi-use trail, the neighboring towns'
lack of support, and the significant funds already spent by the
County.14
14
It did not, as appellants assert, make any finding that the
construction would have an adverse impact on public open space.
38 A-1088-14T2
In finding that the newest proposal complied with the
secondary impacts rule, the DEP began by noting that it was
reconsidering its prior decisions. It first explained that the
proposed road "traverses an area of [Lacey] that consists primarily
of residential and commercial development," and that "the site is
designated a Suburban Planning Area according to the State
Development and Redevelopment Plan." It then detailed the
composition of the "Secondary Impact Review area," which,
according to information provided by Lacey, "is already 84.57%
develop[ed] with residential and commercial properties" and, "[o]f
the remaining 15.43% of undeveloped properties, [almost all] are
publicly owned lands . . . [that] will not be developed and the
[rest are] undeveloped privately owned land [that] is already
zoned for approvable residential development." In light of this
information, the DEP concluded that "the proposed roadway will not
induce further development." Moreover, it noted, one of the permit
conditions prohibited building "additional curb cuts," thereby
"prohibiting any future points of ingress/egress to the new
roadway." Finally, the DEP found that "the pedestrian/bikeway
component of the Railroad Avenue project is consistent with the
planned Barnegat Branch Trail," noting that "the Ocean County
Planning Department designed the Barnegat Branch Trail with
Railroad Avenue in mind and ha[d] stated on [its] website that the
39 A-1088-14T2
roadway will not preclude the development of a pedestrian/bike
trail as envisioned by the Barnegat Branch Trail Conceptual Plan."
As with the other rules, despite appellants' argument to the
contrary, the DEP was not required to "rebut [its] previous
findings with evidence from the record." Nevertheless, Lacey
supported its application with data demonstrating that the
proposal would not induce further development because the area
surrounding the proposed roadway was already almost eighty-five
percent developed, and the remaining properties were either public
land protected from development or private land for which
development was already authorized. The DEP relied upon this
unrebutted data and its finding that the proposal would not impact
the County's plan for the Barnegat Branch Trail, as it provided
for construction of that trail.
Appellants also argue that the DEP failed to adequately
explain why it found the proposal complied with the buffers and
compatibility of uses rule, N.J.A.C. 7:7E-8.13,15 which it found
15
The buffers and compatibility of uses rule in effect at
the time of the DEP's decisions provided, in relevant part:
(a) Buffers are natural or man-made
areas, structures, or objects that serve to
separate distinct uses or areas.
Compatibility of uses is the ability for uses
to exist together without aesthetic or
functional conflicts.
40 A-1088-14T2
was not satisfied in 2006 and 2009. They argue the DEP's finding
that the fifteen-foot buffer between the roadway and nearby
residences was sufficient ignored its previous findings that the
full fifty-foot width of the ROW was a buffer "worthy of
protection."
(b) Development shall be compatible with
adjacent land uses to the maximum extent
practicable.
(1) Development that is likely to
adversely affect adjacent areas,
particularly Special Areas N.J.A.C.
7:7E-3, or residential or recreation
uses, is prohibited unless the impact is
mitigated by an adequate buffer. The
purpose, width and type of the required
buffer shall vary depending upon the type
and degree of impact and the type of
adjacent area to be affected by the
development, and shall be determined on
a case by case basis.
. . . .
(3) The following apply to buffer
treatment:
(i) All buffer areas shall be
planted with appropriate vegetative
species, either through primary planting
or supplemental planting. This
landscaping shall include use of mixed,
native vegetative species, with
sufficient size and density to create a
solid visual screen within five years
from the date of planting.
[N.J.A.C. 7:7E-8.13 now codified at N.J.A.C.
7:7-16.11.]
41 A-1088-14T2
In 2006 and 2009, the DEP based its conclusion that the rule
was unsatisfied on its finding that the proposals "would greatly
reduce th[e] vegetative buffer" provided by the ROW "between the
existing residential properties on the west and the commercial
properties on the east."
In 2014, the DEP found that the pedestrian and bike trail,
together with the buffers on either side of it, would provide "a
minimum buffer of [fifteen] feet between the proposed road and any
residential property boundary," with an even wider buffer along
the large majority of road. With this buffer in place, the DEP
found the project was "compatible with the existing adjacent land
uses to the maximum extent practicable" and therefore satisfied
the rule on buffers and compatibility of uses.
Notably, the DEP's 2006 decision did not, as appellants
allege, find "that the 2005 road proposal would interfere with"
the planned Barnegat Branch Trail. Moreover, the DEP's earlier
conclusion that the rule was not satisfied was not based upon any
finding that the proposed projects were not "compatible with
adjacent land uses." N.J.A.C. 7:7E-8.13(b). Rather, the earlier
denials found the rule was not satisfied because the proposals
would eliminate the fifty-foot buffer provided by the ROW, findings
which do not address what the rule considers and do not, without
more, support a finding that the rule was unsatisfied. The DEP's
42 A-1088-14T2
conclusion was supported by its finding that the fifteen-foot
buffer rendered the project compatible with adjacent land uses,
as required by the rule.
In conclusion, we are satisfied that, despite the earlier
denials, the DEP's Summary Report provided more than adequate
reasons for issuing Lacey the CAFRA permit and that the agency
properly exercised its authority when it granted the permit.
Affirmed.
43 A-1088-14T2