JOSEPH E. COLEN, III VS. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, ETC. (NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-2880-19
JOSEPH E. COLEN, III,
Petitioner-Appellant,
v.
NEW JERSEY DEPARTMENT
OF ENVIRONMENTAL
PROTECTION, LAND USE
REGULATION,
Respondent-Respondent.
__________________________
Argued October 6, 2021 – Decided December 3, 2021
Before Judges Hoffman and Susswein.
On appeal from the New Jersey Department of
Environmental Protection.
John M. Van Dalen argued the cause for appellant (Van
Dalen Brower, LLC, attorneys; John M. Van Dalen, on
the briefs).
Michael J. Schuit, Deputy Attorney General, argued the
cause for respondent (Andrew J. Bruck, Acting
Attorney General, attorney; Sookie Bae-Park, Assistant
Attorney General, of counsel; Michael J. Schuit, on the
brief).
PER CURIAM
Petitioner Joseph Colen appeals from the February 12, 2020 final decision
of the New Jersey Department of Environmental Protection (DEP) denying his
application "for a [] permit to expand his beachfront home" under the Coastal
Area Facility Review Act (CAFRA), N.J.S.A. 13:19-1 to -51. We reverse and
remand for further proceedings consistent with this opinion.
I.
Petitioner owns and lives in a two-story beachfront home at 3207 Ocean
Boulevard, Long Beach Island (LBI), located within a coastal high hazard area
(CHHA), otherwise known as a "high-velocity" or a "V Zone," as delineated on
flood mapping completed by the Federal Emergency Management Agency
(FEMA). N.J.A.C. 7:7-9.18(a) & (i). Petitioner's home, constructed in 1948,
consists of 1440 square feet of living space and sits roughly 475 feet from the
ocean in the Brant Beach section of LBI. Petitioner has lived in the home since
approximately 1970; during that time, storm waters never reached or damaged
his home. A few days after Super Storm Sandy, petitioner inspected the beach
and dunes in the area of his home and observed that the storm did not damage
the dunes, due to the wide beach between the ocean and the dunes.
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Petitioner certified that he
filed a CAFRA application to expand the interior living
space of [my] home . . . so that it would be more
adequate as a place to retire . . . . My intent was to
enclose the existing elevated deck (or reconstruct the
home adding interior space where the elevated deck
currently exists) or at least adding space equal to the
portion of the deck that is located landward of the toe
of the dune at elevation 13 [feet].
According to petitioner, like most lots in the area, his home sits on a fifty-foot
lot; in addition, his home sits only 8.8 feet from Ocean Boulevard, which runs
north and south along the front of his home, and "only about 10 feet from the
right-of-way of 33rd St. to the south, and 8.6 feet to the north property line." He
explained that "[d]ue to municipal zoning setback requirements[,] [my] home
cannot be expanded on any side except on the side facing the water[,] where the
deck is located, thus the reason for my plan to expand the interior living space
by enclosing at least a portion of the existing elevated deck."
According to petitioner's engineering expert, petitioner's home is located
at the inland edge of the V Zone, "about 475 [feet] from the [m]ean [h]igh
[w]ater [l]ine and sheltered from storm water by a broad expanse of beach and
a wide dune field, including a primary dune that reaches an elevation of 24 [feet]
in height." The expert further disputed DEP's contention that petitioner's
elevated deck is located on a dune, asserting that "the inland toe of the dune ends
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. . . near the waterward edge of the deck." In addition, the expert certified that
petitioner's plans for enclosing his existing deck or rebuilding the home with
equal additional interior space will not pose any additional risk of storm damage.
The record indicates the Brant Beach section of LBI is almost entirely
developed. Based upon his own review and investigation, petitioner certified
that "it is probable that my home is the only one within miles in this heavily
developed section of [LBI] that would be restricted by the V Zone/infill rule as
interpreted by DEP staff." Attached aerial photos appear to support petitioner's
contention.
DEP regulations prohibit residential construction or expansion in V
Zones, with certain exceptions. One such exception, known as the "infill
exception," allows residential construction or expansion if:
1) the lot was a subdivided lot prior to July 19,
1993;
2) the lot is served by a municipal sewer system;
and
3) a house or commercial building is located within
100 feet of each of the lot lines running
perpendicular to the mean high water line. . . .
[N.J.A.C. 7:7-15.2(f)(4)(i)(3).]
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To the north of plaintiff's property, a single-family dwelling sits 100 feet
from plaintiff's boundary line. To the south, the nearest home sits 135 feet away,
separated by an undeveloped lot, consisting of vegetation, and a fifty-foot
unpaved right-of-way (33rd street) that provides the public with a walkway to
the beach.
On February 20, 2016, petitioner applied for a CAFRA General Permit
No. 5 (GP5). Petitioner filed an amended application 1 on March 4, 2016. 2 DEP
1
Unfortunately, petitioner failed to include either application in his appendix
and similarly omitted other relevant documents that should have been included.
Rule 2:6-1(a)(1) requires the appendix prepared by the appellant to include
"such . . . parts of the record . . . as are essential to the proper consideration of
the issues . . . ." Failure to include any item essential to the decision hinders
appellate review. Johnson v. Schragger, Lavine, Nagy & Krasny, 340 N.J.
Super. 84, 87 n.3, (App. Div. 2001)." Pursuant to Rule 2:5-4(b), DEP identified
sixty-two separate items as comprising the record on appeal in this case.
Petitioner's appendix contained only a fraction of these items, seriously
hindering our review.
2
At oral argument, petitioner's counsel argued that his client had sought
alternative relief and had "presented two possibilities to DEP," either "tear down
the house and build a new one, with the square footage that would include the
square footage now occupied by the home and the [existing] deck or . . . just
enclose – make interior living space – out of that deck." The initial decision of
the ALJ stated that "[p]etitioner applied for a permit . . . to remove and
reconstruct or alternatively expand oceanward [his home] east of its existing
footprint on [his] property." The Commissioner's final decision states that
petitioner sought permission "to demolish [his] dwelling and construct a new
single[-]family dwelling, with a proposed expansion east of the existing
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denied the permit application in June 2016, finding that the nearest dwelling
from the southern boundary of petitioner's lot is 135 feet away and therefore
beyond the 100-foot distance necessary to come within the infill exception.
In August 2016, petitioner requested an adjudicatory hearing in the Office
of Administrative Law (OAL) to challenge DEP's denial of the GP5. After the
administrative law judge (ALJ) assigned to the case scheduled the hearing for
three days in November 2016, DEP and petitioner filed cross-motions for
summary decision.
Petitioner argued that DEP's application of its rules pertaining to the infill
exception was arbitrary, capricious and unreasonable because the DEP included
the 50-foot-wide right-of-way next to his home, making the closest home south
of him 135 feet away; without including the street, the closest home is 85 feet
away. DEP argued that the regulation is clear and unambiguous and asserted
that under Dragon v. New Jersey Department of Environmental Protection, 405
N.J. Super. 478 (App. Div. 2009), it cannot waive the requirements of the infill
exception. Petitioner countered that he was not seeking a waiver of the 100-foot
footprint," without addressing the alternative relief that petitioner apparently
requested.
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requirement; instead, he was requesting that DEP reasonably interpret its
regulation to exclude streets from the measurement in determining whether there
is a house within 100 feet of lot lines. Because the regulation does not address
his situation, he was seeking an interpretation, not a waiver, of the 100 -foot
requirement.
On November 25, 2019, the ALJ issued an initial decision that
recommended granting DEP's motion and denying petitioner's motion.
The ALJ found that the 100-foot requirement set forth in N.J.A.C. 7:7-
15.2(f)(4)(i)(3) is "a mandatory provision. ('The 100 feet shall be measured
outward . . .'). Accordingly, the provision likely did not consider granting NJDEP
leeway in determining where the measurement shall begin or how it must be
measured."
On December 17, 2019, plaintiff filed exceptions to the ALJ's initial
decision, asserting that the fifty-foot right-of-way should be excluded when
measuring the distance between plaintiff's property and the nearest property to
the south. On February 12, 2020, the Commissioner of DEP adopted the ALJ's
initial decision, including her factual findings and conclusions of law. This
appeal followed.
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On appeal, petitioner contends that DEP's refusal to exclude the fifty-foot
right-of-way from the infill calculation was arbitrary, capricious, and
unreasonable. Petitioner asserts that, due to the highly developed nature of the
Brant Beach section of LBI, the fifty-foot right-of-way should be excluded, as
all other beachfront properties for several miles meet infill requirements and can
expand waterward without limit. Petitioner also claims that DEP's application
of the infill rule violated his equal protection rights.
DEP urges this court to affirm, arguing that "[t]he final decision honors
not only the plain language but also the public safety purposes of the CHHA
rule"; however, following oral argument, DEP's counsel provided this court
with a submission "to clarify a representation . . . made during oral argument in
response to a non-briefed question." The clarification explained that
[d]uring oral argument, the court asked whether DEP
approval was necessary if the [a]ppellant increased the
dwelling's height without increasing the dwelling's
footprint. I responded that DEP approval would be
necessary and, since [a]ppellant could not meet the
Coastal High Hazard Rule, [a]ppellant could not
increase the building’s height because it would
constitute an expansion. However, after argument I
reviewed the Coastal Zone Management rules, N.J.A.C.
7:7-1.1 et seq., and a DEP permit is not required to add
another story to the dwelling, as long as the
enlargement would not require additional parking,
increase the number of dwelling units, or increase the
building's footprint. N.J.A.C. 7:7-2.2(c)(4). Though it
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was noted in argument that the municipality’s zoning
may address a building's height restrictions, the Coastal
Zone Management rules would not impose such
limitations in this case.
II.
A.
In enacting CAFRA in 1973, the Legislature found "that certain portions
of the coastal area are now suffering serious adverse environmental effects . . . ."
N.J.S.A. 13:19-2. In light of these effects, "all of the coastal area should be
dedicated to those kinds of land uses which promote the public health, safety
and welfare, protect public and private property, and are reasonably consistent
and compatible with the natural laws governing the physical, chemical and
biological environment of the coastal area."
While declaring its desire to address the adverse environmental effects of
coastal area development, the Legislature also recognized economic
considerations for those who inhabit the coastal areas, noting that CAFRA was
also intended 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
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adequate environmental safeguards for the construction
of any facilities in the coastal area.
[Ibid.]
As we noted in Seigel v. N.J. Dep't of Env't Prot., "[e]ach agency decision
involving an application for development under CAFRA invokes these
'competing policy considerations.'" 395 N.J. Super. 604, 611 (App. Div. 2007),
citing In Re Cape May County Mun. Util. Auth., 242 N.J. Super. 509, 516 (App.
Div. 1990).
CAFRA requires DEP to make specific findings before granting a permit,
N.J.S.A. 13:19-10, and, even if those findings are made, DEP may deny the
application if "the proposed development would violate or tend to violate the
purpose and intent of this act . . . ." N.J.S.A. 13:19-11.
B.
Our review of a final agency decision is limited. Kadonsky v. Lee, 452
N.J. Super. 198, 201-02 (App. Div. 2017) (citing In re Stallworth, 208 N.J. 182,
194 (2011)). We "will not reverse an agency's judgment unless we find the
decision to be 'arbitrary, capricious, or unreasonable, or [] not supported by
substantial credible evidence in the record as a whole.'" Id. at
202 (quoting Stallworth, 208 N.J. at 194).
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We accept the factual findings of an administrative agency provided they
are supported by sufficient credible evidence, and we may not substitute our
judgment for that of the agency. Greenwood v. State Police Training Ctr., 127
N.J. 500, 513 (1992). Though not bound by an agency's determination of a
purely legal question, we will give "substantial deference" to an agency's
reasonable interpretation of statutes an agency enforces. Richardson v. Bd. of
Trs., Police & Fireman's Ret. Sys., 192 N.J. 189, 196 (2007).
Summary decision in an administrative proceeding is appropriate where
the pleadings, discovery, and affidavits "show that there is no genuine issue as
to any material fact challenged and that the moving party is entitled to prevail
as a matter of law." N.J.A.C. 1:1-12.5(b). No genuine issue of material fact
exists if "the competent evidential materials presented, when viewed in the light
most favorable to the non-moving party, are sufficient to permit a rational
factfinder to resolve the alleged disputed issue in favor of the non-moving
party." Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 406 (2014) (quoting
Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)).
C.
Our review of the record indicates multiple disputes regarding material
facts that rendered this case inappropriate for summary decision. Petitioner
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contends that the "V-Zone ends around [his] front door" and that his home "is
not located on a dune"; in addition, his expert certified that "the inland toe of
the dune . . . ends near the waterward edge of [the] deck." DEP disagrees,
asserting that petitioner's "entire project cite is a dune, as defined by N.J.A.C.
7:7-9.16. Specifically, it is a primary dune." Petitioner further contends that
his property is the only property for several miles adversely impacted by DEP's
interpretation of the infill exception's 100-foot requirement. DEP disputes this
assertion. The decision of the ALJ did not address these disputed claims nor did
DEP's final agency decision.
If a full hearing establishes that petitioner's entire property is not a primary
frontal dune as defined by DEP, and if petitioner proves that his proposed
expansion will not be on a dune, it appears the restrictions of the dunes rule will
not apply. See Seigel, 395 N.J. Super. at 620. If the proposed expansion is not
on a dune, it appears the coastal high hazard rule will not apply either. Ibid.
Just like in Seigel, DEP's denial letter in this case stated that "a practicable
alternative to the proposed construction . . . would be the reconstruction of the
existing home . . . construction on a lot that is not a dune, the purchase of an
existing house on a lot that is not a dune or the reconstruction of an existing
house on a lot that is not a dune." Id. at 621. As in Seigel, we again note that
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we do not find practical or feasible any of the alternatives DEP proposed that
would require petitioner to acquire additional or other property.
Also similar to Seigel, we note the apparent unfairness that would result
to this particular petitioner from a strict application of the dunes rule to
petitioner's application. N.J.A.C. 7:7-9.16. The regulation itself permits
development on a dune where there is "no practicable or feasible alternative in
an area other than a dune," and where it will not cause "significant adverse
long[-]term impacts on the natural functioning of the beach and dune system."
N.J.A.C. 7:7-9.16(b). It does not appear that DEP adequately considered either
of these factors in making its determination.
Before us, one of the principal arguments advanced by DEP is that the
"infill exception" is a rule that "enhances safety by limiting the distance first
responders and occupants must traverse in the event of a severe storm or seismic
event." While this argument may apply to many ocean-front properties, the
record provides no evidence that it would apply to petitioner's property. Because
the southern property line of petitioner's property is a 100-foot border on 33rd
street, and petitioner's western property line is a 50-foot border on Ocean
Boulevard, petitioner's property has three times the frontage for ingress and
egress for first responders and occupants, when compared to interior (non -
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corner) fifty-foot ocean-front lots. On remand, if DEP continues to maintain
that denial of the infill exception to petitioner "enhances safety," DEP should
present empirical or testimonial evidence to support its position.
Another principal argument advanced by DEP is that our decision in
Dragon v. New Jersey Department of Environmental Protection, 405 N.J. Super.
478 (App. Div. 2009) prevents DEP from departing from the strict application
of its rules. In Dragon, we held that DEP 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. The facts in Dragon
differ greatly from the application under review. In Dragon, the property at
issue was "the most easterly lot on the block, and encroach[ed] more oceanward
than any of its neighbors." Id. at 483. In addition, the petitioner in Dragon
proposed a major extension and major expansion of his footprint. Id. at 484.
In addition, we note that we clarified in Dragon that the decision did not
concern DEP's "power to enter into settlement negotiations" but that a settlement
cannot be used as a means of circumventing substantive permitting
requirements. Id. at 492. In appropriate cases, we have recognized "the
persuasiveness of the argument that an agency has inherent power to waive de
minimus violations of objective standards." SMB Assocs. v. N.J. Dep't of Env't.
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Prot., 264 N.J. Super. 38, 59 (App. Div. 1993) aff'd sub nom. SMB Associates
(Anchoring Point) v. New Jersey Dep't of Env't. Prot., 137 N.J. 58 (1994); see
also In re Highlands Master Plan, 421 N.J. Super. 614, 632-33, (App. Div. 2011)
(citations omitted) (noting "[t]he power to waive administrative rules may be
used solely to deal with the unusual circumstances of an individual regulated
party.").
In sum, we do not view Dragon as precluding a favorable ruling in
petitioner's favor if the record on remand establishes that the relief granted does
not adversely impact the safety of first responders or occupants and resu lts in
minimal environmental impact that is equal to, or less, than the impact that
would result if petitioner proceeds with an alternative that does not require DEP
approval, such as adding another story to his home, as permitted by N.J.A.C.
7:7-2.2(c)(4). Even assuming DEP was correct in determining that the entirety
of petitioner's property is a dune, we are hard-pressed to understand how the
enclosure of a portion of petitioner's existing elevated deck could have a
significant adverse impact beyond what DEP acknowledges is permitted without
DEP approval.3
3
We further note that DEP regulations allow for an exception to the dunes rule
for "the enclosure of a deck, patio, or porch," provided ". . . [t]he deck, patio, or
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Our Supreme Court has noted that [a]ny administrative agency in
determining how best to effectuate public policy is also limited by applying
principles of fundamental fairness." Dep't of Env't. Prot. v. Stavola, 103 N.J.
425, 436 n.2 (1986). "When specific parties are particularly affected by a
proposed rule, fair play and administrative due process dictate that an agency
must conscientiously concern itself with and make reasonable efforts to
accommodate the rights and interests of the affected individual and genuinely
account for the individualized effect of its proposed action." Bally Mfg. Corp.
v. New Jersey Casino Control Comm'n, 85 N.J. 325, 345 (1981) (Handler, J.,
concurring).
porch enclosure is located on the non-waterward side of the single[-]family
home." N.J.A.C. 7:7-6.5(d)(i)(ii). The record before us includes no evidence
that enclosure of the waterward side of petitioner's deck would have any adverse
environmental impact.
The National Weather Service's High Wind Safety Rules describe the dangers
to life and property posed by high winds and emphasize the importance of
removing or securing objects, such as furniture, "that could blow away and cause
damage or injury." High Wind Safety Rules, NAT'L WEATHER SERV.,
http://www.weather.gov/mlb/seasonal_wind_rules High Wind Safety Rules
(last visited Nov. 17, 2021). Obviously, a deck facing the ocean, like
petitioner's, would be particularly vulnerable to high winds in a storm. Allowing
the enclosure of the waterward deck would eliminate the dangers posed by deck
furniture on an open, unenclosed deck.
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Petitioner also asserts that DEP's application of the infill rule violates his
equal protection rights. Petitioner contends that DEP has effectively placed him
into a "class of one," where "hundreds of other beach front homeowners" in the
Brant Beach section can expand their homes, while he cannot.
Petitioner raised this equal protection argument in his reply brief. The
record does not reflect that petitioner raised this argument in the administrative
proceedings under review. Thus, we decline to address the equal protection
issue. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234-35 (1973). If the
matter does not resolve, we do not foreclose petitioner from raising this issue on
remand.
Given the disputed issues of material facts and the incomplete record, we
are constrained to reverse the order under review and remand this matter for a
full adjudicatory hearing before the ALJ. If petitioner requests, the ALJ shall
permit petitioner to file an amended application to clearly state the exact nature
of any alternative relief petitioner is requesting. See In re State & Sch. Emps.',
233 N.J. at 285 (requiring remand hearing to develop "a proper record to permit
meaningful judicial review."). We conclude that is the appropriate remedy here.
We therefore reverse and remand the matter for further proceedings
consistent with this opinion.
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Reversed and remanded. We do not retain jurisdiction.
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