In the Matter of Kenneth Nicosia Flood Hazard General Permit, Etc. ( 2024 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2921-22
IN THE MATTER OF
KENNETH NICOSIA APPROVED FOR PUBLICATION
FLOOD HAZARD July 30, 2024
GENERAL PERMIT APPELLATE DIVISION
BY CERTIFICATION 5
NO. 1519-23-002.1 FHC230001.1
_____________________________
Argued July 16, 2024 – Decided July 30, 2024
Before Judges Sabatino, Susswein, and Perez Friscia.
On appeal from the New Jersey Department of
Environmental Protection.
Stuart J. Lieberman argued the cause for appellants
Henry Dewing and Sarah Dewing (Lieberman Blecher
& Sinkevich, PC, attorneys; Stuart J. Lieberman, of
counsel; Ching Wei Michael Gan and Erica L. Peralta,
on the briefs).
Jordan Viana, Deputy Attorney General, argued the
cause for respondent Department of Environmental
Protection (Matthew J. Platkin, Attorney General,
attorney; Janet Greenberg Cohen, Assistant Attorney
General, of counsel; Jordan Viana, on the brief).
John J. Jackson, III, argued the cause for respondent
Kenneth Nicosia (John J. Jackson III & Associates,
1
Although the briefs denote the permit number as "1419," the record shows the
issued permit bears the number "1519."
LLC, attorneys; John J. Jackson, III, of counsel and on
the brief; Jilian McLeer, on the brief).
The opinion of the court was delivered by
SABATINO, P.J.A.D.
This appeal arises from a denial by respondent New Jersey Department of
Environmental Protection ("DEP") of a request by appellants Henry and Sarah
Dewing to rescind what is known as a flood hazard area general permit-by-
certification 5 ("GPC 5") granted to a neighboring residential property owner,
Kenneth Nicosia. The Dewings own residential property in Mantoloking that
abuts Nicosia's parcel, both located within a block of the Atlantic Ocean
shoreline. Nicosia, a developer, sought the permit to replace a single-family
house on the site with a new house.
After receiving notice of Nicosia's application for a GPC 5, appellants and
several other Mantoloking residents submitted comments to the DEP contesting
the application. The comments objected to the issuance of the GPC 5, and
further alleged that Nicosia's ongoing construction of the new house was not
adhering to the permit's conditions. A DEP Section Chief responded to the
Dewings by email, rejecting their objections and declining to modify or rescind
the permit. This appeal by the Dewings ensued.
Appellants principally argue that (1) the written notice they received of
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Nicosia's permit application was deficient because it failed to state the permit
was effective during the comment period; and (2) the applicable DEP regulations
should be construed to require a GPC 5 applicant to show that an existing
structure is not in "usable condition" due to "decay" or "damage." See N.J.A.C.
7:13-1.2 (defining the terms "reconstruct" and "repair" under the regulations).
For the reasons that follow, we affirm. The GPC 5 notice did not violate
any statutory or regulatory provisions, nor was it constitutionally deficient. In
addition, although the pertinent regulations are poorly worded and punctuated,
the DEP has reasonably construed them to not require an applicant who, as here,
seeks to replace a lawfully existing structure to demonstrate the structure is
decayed, damaged, or otherwise not in usable condition. That said, nothing in
this opinion precludes the pursuit of available enforcement remedies if the
construction, as built, does not comply with the conditions of the GPC 5 or
applicable statutes or regulations.
I.
A.
We begin with an overview of the statutory and regulatory scheme.
"Under the Flood Hazard Area Control Act (FHAC Act), N.J.S.A. 58:16A-50 to
-103, and its regulations, [the FHAC Act Rules,] N.J.A.C. 7:13-1.1 to -24.11,
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certain types of developments are regulated and require permits if the
development is in the flood hazard area or the riparian zone of a regulated
water." Musconetcong Watershed Ass'n v. N.J. Dep't of Env't Prot., 476 N.J.
Super. 465, 472-73 (App. Div. 2023). "The FHAC Act 'confers broad authority'
on the DEP 'to protect the "safety, health, and general welfare" of the public by
"deliniat[ing] and mark[ing] flood hazard areas" and subjecting them to "land
use regulations."'" Id. at 476-77 (quoting Am. Cyanamid Co. v. State, Dep't of
Env't Prot., 231 N.J. Super. 292, 297 (App. Div. 1989) (alterations in original)
(quoting N.J.S.A. 58:16A-50(b))).
The FHAC Act Rules "shall be liberally construed to effectuate the
purpose of the Acts under which it was adopted." N.J.A.C. 7:13-1.6.
Specifically, the Rules are intended "to minimize damage to life and property
from flooding caused by development within flood hazard areas, to preserve the
quality of surface waters, and to protect the wildlife and vegetation that exist
within and depend upon such areas for sustenance and habitat." N.J.A.C. 7:13-
1.1(c). Likewise, the FHAC Act itself "shall be liberally construed to effectuate
the purpose and intent thereof." N.J.S.A. 58:16A-64.
The general permit-by-certification ("GPC") program at issue here was
adopted by the DEP in 2016. 48 N.J.R. 1067(a) (Jun. 20, 2016). The program
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is codified in regulations set forth in N.J.A.C. 7:13-8.1 to -8.16 and is also
subject to other FHAC Act regulations. Applicable to those regulations,
N.J.A.C. 7:13-6.7 imposes five enumerated requirements designed to secure
structures during floods and avoid interference with waterways, animal habitats,
and vegetation. N.J.A.C. 7:13-6.7(b)(1) to (5). Additionally, "[e]xcept for
normal property maintenance . . . and forest management activities . . . regulated
activities authorized under a . . . general permit-by-certification . . . in
combination with all proposed activities, shall not constitute a major
development, as defined in the Stormwater Management rules at N.J.A.C. 7:8-
1.2." N.J.A.C. 7:13-6.7(c).2
As a permit-by-certification, the GPC 5 in this case was issued
automatically by the DEP after "completion of the application submission
through the [DEP's] electronic system in accordance with N.J.A.C. 7:13-18.3
[specifying payment of fees and information to be supplied in the application]. "
N.J.A.C. 7:13-6.3. As highlighted by the DEP in its brief, permits-by-
certification are available "for a tightly circumscribed subset of activities" where
"tight limitations on the activity or activities that can be authorized enable the
2
"Major developments" generally include construction for which approval is
necessary under the Municipal Land Use Law. N.J.A.C. 7:8-1.2. No party
alleges that Nicosia's proposed construction constitutes a "major development."
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automated issuance . . . because there is no need for a case-by-case evaluation"
of the application. 46 N.J.R. 1051(a) (Jun. 2, 2014). The DEP "will not entertain
a request to review engineering calculations, in the context of an applicability
determination or otherwise, for the purposes of determining that a proposed
activity will meet any condition of a permit-by-rule or general permit-by-
certification." N.J.A.C. 7:13-6.7(d).
The expedited process facilitated by the automatic approval of a GPC 5 is
conditioned upon a regulation that expressly imposes liability on the person who
is "seeking authorization under a general permit-by-certification . . . for
ensuring that each condition . . . is met." N.J.A.C. 7:13-6.7(d). Moreover, "an
authorization under a general permit-by-certification or general permit does not
relieve the person conducting the authorized regulated activities from the
obligation to obtain any other applicable permits or approvals required by law. "
N.J.A.C. 7:13-6.3(d).
These requirements apply to the sixteen categories of GPCs obtainable
under N.J.A.C. 7:13-8.1 to -8.16. In addition to the GPC 5 for reconstruction of
buildings at issue in this case under N.J.A.C. 7:13-8.5, applicants may seek
GPCs for such activities as removal of debris from waterways, restoring
agricultural banks, enhancing riparian zones, maintenance of stormwater
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management structures, placement of solar panels or water monitoring devices,
and other activities. N.J.A.C. 7:13-8.1 to -8.16.
A GPC 5 "authorizes the reconstruction, relocation, expansion, and/or
elevation of a lawfully existing building located outside a floodway, provided
[the GPC] conditions at N.J.A.C. 7:13-6.7 are met," and also:
1. The flood hazard area elevation for the site has been
determined by [the DEP's] delineation or FEMA flood
mapping . . . ;
2. The building is not located in a floodway;
3. The applicant obtains an engineering certification
confirming that the building is not being expanded
within or relocated into a floodway;
4. The footprint of the building has not increased by
more than 750 square feet, cumulatively, since
November 5, 2007;
5. The applicant obtains an engineering certification
confirming that the lowest floor of the building is being
reconstructed or elevated to at least one foot above the
flood hazard area design flood elevation and no lower
than the elevation required under the Uniform
Construction Code, N.J.A.C. 5:23;
6. Any new enclosure below the lowest floor of the
building is not used for habitation, remains open to
floodwaters, and is constructed in accordance with
N.J.A.C. 7:13-12.5(p);
7. Any existing enclosure below the lowest floor of the
building, which does not conform to the requirements
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of N.J.A.C. 7:13-12.5(p), such as a basement having a
floor that is below grade along all adjoining exterior
walls, is abandoned, filled-in, and/or otherwise
modified to conform with the requirements of N.J.A.C.
7:13-12.5;
8. No disturbance is located within 25 feet of any top of
bank, unless the project lies adjacent to a lawfully
existing bulkhead, retaining wall, or revetment along a
tidal water or impounded fluvial water;
9. Any building to be relocated is either moved outside
a riparian zone or located within an actively disturbed
area; and
10. No riparian zone vegetation is cleared, cut, and/or
removed, except for vegetation within 20 feet of the
building, where such disturbance is necessary to access
the building and facilitate its reconstruction, relocation,
expansion, and/or elevation.
[N.J.A.C. 7:13-8.5 (emphasis added).]
Critical to this appeal, the term "reconstruct" is defined by the FHAC Act
Rules within N.J.A.C. 7:13-1.2 as:
"Reconstruct" means to patch, mend, replace, rebuild
and/or restore a lawfully existing structure to a usable
condition after decay or damage has occurred, in which
50 percent or greater of the structure is replaced and/or
the size, shape or location of the structure is altered.
For habitable buildings, the percentage of replacement
shall be determined by comparing the cost of the
reconstruction to the market value of the building as
determined before the start of construction; where the
percentage of replacement is 50 percent or greater, such
reconstruction shall also constitute a substantial
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improvement as defined in this section. For all other
structures, the percentage of replacement shall be
determined by comparing the area of the structure being
reconstructed to the total area of the structure.
[N.J.A.C. 7:13-1.2 (emphasis added).]
This definition of "reconstruct" set forth in N.J.A.C. 7:13-1.2
complements the definition of a "repair" within the same set of regulatory
definitions:
"Repair" means to patch, mend, replace, rebuild and/or
restore a lawfully existing structure to a usable
condition after decay or damage has occurred, in which
less than 50 percent of the structure is replaced and the
size, shape or location of the structure is not altered.
For habitable buildings, the percentage of replacement
shall be determined by comparing the cost of the repair
to the market value of the building as determined before
the start of construction; where the percentage of
replacement is less than 50 percent, such repair shall
not constitute a substantial improvement as defined in
this section. For all other structures, the percentage of
replacement shall be determined by comparing the area
of the structure being repaired to the total area of the
structure.
[N.J.A.C. 7:13-1.2 (emphasis added).]
Simply stated, under these definitions, a "repair" occurs when less than 50
percent of a lawfully existing structure is replaced, whereas a "reconstruction"
occurs when 50 percent or more of the structure is replaced. Here, Nicosia's
construction fully replaces the pre-existing house, and thus must be evaluated
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under the definition of a "reconstruction."
B.
With this regulatory backdrop in mind, we summarize the pertinent facts
and procedural history concerning Nicosia's GPC 5.
As noted above, Nicosia is a real estate developer. He is the owner of
residential property on Ocean Avenue in Mantoloking. On April 13, 2023,
Nicosia mailed notice to all owners of property within 200 feet of his property
of his intention to replace the existing single-family dwelling pursuant to a GPC
5 to be obtained from the DEP. Among other things, the notice stated that the
new house would "compl[y] with the elevation and flood requirements [of] the
New Jersey Flood Area Control Act Rules at N.J.A.C. 7:13 et seq."
The notice stated the permit application could "be reviewed at the
municipal clerk's office." It further advised that persons "may provide
comments concerning the proposed development and site" through "written
comments within 30 calendar days." The notice supplied an address at the DEP
for this purpose, attention to the "Borough of Mantoloking Supervisor."
The following day, Nicosia filed an application with the DEP for a GPC
5. The DEP automatically issued the permit the same day.
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In early May 2023, several neighbors submitted comments to the DEP.
Apart from appellants, the commenters included approximately seven other
households. The commenters raised concerns about the quality and quantity of
fill dumped at the construction site, the clearance of all vegetation, the
construction of a concrete retaining wall that might alter water flow throughout
the neighborhood, the demolition of the preexisting house, the planned four-
foot increase in lot elevation, and other aspects of Nicosia's plan. One
commenter claimed to have conducted "a visual inspection" and observed the
"fill appears to be strewn with construction debris including degradable organic
and metallic articles" and was not "clean fill" compliant with Borough
ordinances and State regulations.
Appellants Henry and Sarah Dewing submitted a comment to the DEP on
May 11, 2023, objecting to the permit as ineligible for a GPC 5 and against DEP
flood regulations. Their comment was submitted by an attorney, who alleged
Nicosia, without a permit, had demolished the preexisting house and constructed
a wall around three sides of the lot. The Dewings' counsel asserted the house
had been in good condition before its demolition, arguing a GPC 5 was therefore
inappropriate because N.J.A.C. 7:13-8.5 allegedly is only available to restore or
replace damaged homes. Further, the Dewings asserted the construction of a
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wall "surrounding almost three sides of the lot" redirected flood flows onto
Route 35, a State highway and "evacuation route" "not designed to collect and
drain flood or storm waters." The Dewings further alleged the construction of
the wall involved excavating not only Nicosia's property, but also involved
excavating part of their own property.
To support their objections, the Dewings commissioned a report by Becht
Engineering BT, Inc. ("Becht Engineering"). Becht Engineering determined the
new construction covers 2,811 square feet, in contrast to the 1,600 square feet
occupied by the previous dwelling.
Becht Engineering's report incorporated a report prepared by Coastal
Environmental Consulting, LLC ("Coastal Environmental"). Coastal
Environmental's report opined that a GPC 5 is inappropriate for Nicosia's
construction because the site plans contemplate increasing the footprint of the
original home by more than 750 square feet and because the DEP never verified
the flood hazard area elevation of the site, a requisite of a GPC 5. Coastal
Environmental contended that a "GPC 6" permit under N.J.A.C. 7:13-8.6 was
more appropriate.
The Dewings further commissioned a report by Princeton Hydro, LLC
("Princeton Hydro"). The report alleged Nicosia demolished the home in
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December 2022, began filling the site with soil and constructing a retaining wall
in January 2023, and continued construction until issuance of a cease-and-desist
order by an Ocean County agency in January 2023 and a stop work order by the
Borough of Mantoloking later that month. Like Becht Engineering and Coastal
Environmental, Princeton Hydro asserted that a GPC 5 was inappropriate
because the preexisting structure was not damaged.
On June 8, 2023, DEP Section Chief Keith P. Stampfel, P.E., emailed the
Dewings' attorney with a response to their objections. In that email, Stampfel
stated:
I did a review of this permit and I don't see any problem
with [it]. There was a house existing at least until
September 2022 (that is the most recent nearmap
imagery that we have, but the house could have been
there even later than that), so we would allow that to be
considered a reconstruction of an existing house.
There is also a reference to an objection regarding a
retaining wall, but that is not regulated under the FHA
regulations since it is not in a floodway nor is it in a
regulated water itself or within 25' top of bank.
Also, if the permittee wants to install a pool in the
future, they would be able to qualify for a FHA permit
by rule #21, so that wouldn't require additional FHA
permits other than the PBR.
There is also a reference to stormwater management
and grading objections, however that would be
reviewed under the local level since it is not a 'major
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development,' so a stormwater management review isn't
required at the State level.
It should also be noted that a FHA Verification is not
required for a [GPC 5].
[(Emphasis added.)]
After receiving Stampfel's email, the Dewings filed this appeal of the
DEP's final agency decision. R. 2:2-3(a)(2). The record does not inform of us
what, if any, responses the DEP may have provided to the comments of the other
objectors.3
II.
We apply well-settled principles in reviewing the issues raised in this
administrative appeal. Appellate courts "will not reverse an agency's decision
unless: (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.
3
We learned at the appellate oral argument that separate litigation is pending
in the Law Division challenging the approvals Nicosia obtained under the
MLUL from the Mantoloking Joint Planning and Zoning Board. Counsel for
Nicosia represented to us that the construction of the new house is nearly
completed. Appellants' counsel noted that a letter had been previously served
on Nicosia, warning that such continued construction would be at his own risk
while this litigation has been pending.
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N.J. Dep't of Env't Prot., 191 N.J. 38, 48 (2007). "Generally, courts afford
substantial deference to an agency's interpretation of a statute that it is charged
with enforcing . . . [but] [a]n appellate court, however, is 'in no way bound by
the agency's interpretation of a statute or its determination of a strictly legal
issue.'" Ibid. (quoting In re Taylor, 158 N.J. 644, 658 (1999) (quoting
Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973))).
Guided by these standards, we address the two main issues presented by
appellants: (1) the alleged deficiency of the notice, and (2) whether the
definition of a "reconstruction" requires GPC 5 applicants to prove that a
lawfully existing structure is not in usable condition due to either "damage" or
"decay."
A.
The notice issue is the easier of the two main issues on appeal. At oral
argument, counsel represented to us that the notice form used by Nicosia was
patterned after sample forms on the DEP website.
A key facet of our notice analysis, which the Attorney General has
highlighted in a supplemental brief, is the distinction within the state
Administrative Procedure Act ("APA"), N.J.S.A. 52:14B-1 to -31, between a
"public notice" process utilized for rulemaking and a "public notice" process
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used in a permit context such as the one before us. This distinction is reflected
by the difference within the APA between N.J.S.A. 52:14B-4(a)(4) (providing
for public distribution of "the agency's response" to objections to proposed new
rules) and N.J.S.A. 52:14B-3.1(a) (allowing any "interested persons" to submit
objections to DEP permitting decisions, but not imposing requirements for an
agency response).
Because this case involves a permitting dispute rather than a challenge to
the adoption of DEP administrative rules, there are no provisions within the
statutes or regulations that required the DEP to respond to the comments
received from appellants or the other objectors to the Nicosia permit . As the
DEP acknowledges, its obligation is simply to consider the comments, if any,
that are submitted from the public. Such consideration is duly reflected in
Section Chief Stampfel's June 8, 2023 email. To be sure, the email does not
explicitly respond to each comment submitted on appellants' behalf4 and their
retained experts. However, nothing in applicable statutes, regulations, or case
law mandates that degree of specificity. The email reflects that, at the very least,
the DEP gave substantial consideration to appellants' comments.
4
We need not address whether the DEP duly considered the objections from the
other commenters who, unlike the Dewings, have not appealed.
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The Dewings argue the public comment process is "flawed" as applied to
permits-by-certification because the automatic issuance of such permits and
their immediate publication in the DEP Bulletin starts: (1) the 30-day period to
request an adjudicatory hearing under N.J.A.C. 7:13-23.1(b), and (2) the 45-day
period to appeal to this court under Rule 2:4-1(b). The Dewings maintain neither
of those avenues of review are informed by the public comment process, which
requires no response of the agency and calls for submissions within 30 days of
the permit's issuance.
The Dewings' contentions of procedural shortcomings are undermined by
their limited status as third-party objectors to a permit issued by the DEP. The
APA "prohibit[s] State agencies from promulgating rules and regulations which
would allow third party appeals of permit decisions unless specifically
authorized to do so by federal law or State statute." N.J.S.A. 52:14B-3.1(d).
That provision of the APA still recognizes the "constitutional and statutory
rights and remedies" of people "who have particularized property interests or
who are directly affected by a permitting decision," which the Dewings could
vindicate through an adjudicatory hearing. N.J.S.A. 52:14B-3.1(b). But they
requested no such adjudicatory hearing in this case.
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Appellants contend the notice form used for GPC 5 permits should
explicitly advise would-be objectors that the permit recipient can immediately
proceed with demolition and construction and does not have to wait before the
30-day comment period expires. That proposed enhancement to the notice form,
however, raises policy concerns beyond the scope of this appeal.
The policies underlying the GPC 5 program strive to minimize delay. A
key facet of the permit-by-certification program is to enable property owners
who abide by the rules to move ahead with their construction activities
expeditiously, and not get bogged down with bureaucratic delays and
unwarranted litigation burdens. Indeed, we can take judicial notice that such
expediency became especially important in recent years as New Jersey shore
communities were rebuilt in the aftermath of Superstorm Sandy. If, as here, an
affected third party has a valid objection to the permit, it does not have to wait
a full 30 days to voice its concerns and take action.
Third-party objectors have limited constitutional interests in participating
in the procedures used for DEP permitting. See In re Riverview Development,
LLC, 411 N.J. Super. 409, 425-29 (App. Div. 2010). Here, the basic elements
of notice and an opportunity to be heard are met by the existing GPC 5 process.
Mathews v. Eldridge, 424 U.S. 319, 332-35 (1976). Any suggested
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enhancements of that process can be pursued generally outside of this appeal
through a petition for rulemaking under N.J.S.A. 52:14B-4(f).
B.
Appellants' second point—which their counsel declared at oral argument
to be their primary ground for reversal—stems from the wording and
punctuation of the definition of "reconstruct" within N.J.A.C. 7:13-1.2, which
applies to GPC 5 permits. We repeat the full definition here for the reader's
convenience.
"Reconstruct" means to patch, mend, replace, rebuild
and/or restore a lawfully existing structure to a usable
condition after decay or damage has occurred, in which
50 percent or greater of the structure is replaced and/or
the size, shape or location of the structure is altered.
For habitable buildings, the percentage of replacement
shall be determined by comparing the cost of the
reconstruction to the market value of the building as
determined before the start of construction; where the
percentage of replacement is 50 percent or greater, such
reconstruction shall also constitute a substantial
improvement as defined in this section. For all other
structures, the percentage of replacement shall be
determined by comparing the area of the structure being
reconstructed to the total area of the structure.
[N.J.A.C. 7:13-1.2 (emphasis added).]
As we noted above, appellants want us to construe the first sentence of the
definition to require GPC 5 applicants to show that a lawfully existing structure
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is decayed or damaged, and therefore not in usable condition. In their
opposition, the DEP and Nicosia interpret the text to not require such a showing
in a context where, as here, a property owner seeks to "replace" an existing
structure.
Our interpretative task is guided by well-established principles. "The
Legislature's intent is the paramount goal when interpreting a statute and,
generally, the best indicator of that intent is the statutory language." DiProspero
v. Penn, 183 N.J. 477, 492 (2005). A court should "ascribe to the statutory words
their ordinary meaning and significance, and read them in context with related
provisions so as to give sense to the legislation as a whole." Ibid. (internal
citations omitted); see also State v. Gomes, 253 N.J. 6, 15-16 (2023). Those
same core principles for construing statutes apply to the judicial interpretation
of administrative regulations. Patel v. N.J. Dep't of Treasury, A-2370-22, __
N.J. Super. __, __ (App. Div. 2024).
"In the absence of explicit indication of a special meaning, words will be
given their ordinary and well understood meaning." In re Schedule of Rates for
Barnert Mem'l Hosp., 92 N.J. 31, 40 (1983). In addition, courts should attempt
to accord meaning to all words of a codified provision. Smith v. Dir., Div. of
Tax'n, 108 N.J. 19, 27 (1987) ("it is well-established that a [code] should not be
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construed in a manner that renders any portion of it a nullity"); see also Med.
Soc. of N.J. v. N.J. Dep't of L. & Pub. Safety, 120 N.J. 18, 26-7 (1990) ("[W]e
should try to give effect to every word of the [code], and should not assume that
the [drafter] used meaningless language . . . [n]or should we construe the statute
to render part of it superfluous").
The interpretation of N.J.A.C. 7:13-1.2's definition of "reconstruct" is
complicated by the use of the term "and/or" within the first sentence: "to patch,
mend, replace, rebuild and/or restore a lawfully existing structure to a usable
condition after decay or damage has occurred . . . ." (emphasis added). As Judge
Fisher rightly pointed out in State v. Gonzalez, 444 N.J. Super. 62, 71-76 (App.
Div. 2016), the term "and/or" can breed confusion. Grammatically, "and/or"
literally conveys that any one of the items within a list can be true, or some of
them, or all of them. Ibid.Applying that "and/or" concept here, the term "reconstruct" encompasses
"patch" or "mend" or "replace" or "rebuild" or "restore" a lawfully existing
structure, or to perform all or some of those activities. Any one of those terms
suffices.
Common dictionary definitions treat the terms "patch" and "mend" as
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synonymous or overlapping. 5 Likewise, the terms "rebuild" and "restore" have
substantially cognate meanings. 6 All of these words, to some extent, connote
actions undertaken to address a deficiency.
The term "replace," however, is unlike the others on the list. Something
need not be in damaged condition in order to be replaced. Merriam-Webster
defines "replace" as "to put something new in the place of." Replace, Merriam-
Webster, https://www.merriam-webster.com/dictionary (last visited Jul. 24,
2024). With respect to a home, a property owner may want to replace it, not
because it is in disrepair or dilapidated, but because the owner wishes to have,
say, a more modern, attractive, or energy efficient one. To be sure, at times an
owner will want to replace a structure, rather than try to restore it, because it is
in disrepair. The cost of home restoration can often be far greater than
replacement of the structure with new materials. But that logically is not the
only reason that can motivate such a desire.
5
To "patch" is "to mend, cover, or fill up a hole or weak spot," whereas to
"mend" is "to free from faults or defects" or "put into good shape or working
order again." Patch, Mend, Merriam-Webster, https://www.merriam-
webster.com/dictionary (last visited Jul. 24, 2024) (emphasis added).
6
To "rebuild" is "to restore to a previous state," whereas to "restore" is "to bring
back to or put back into a former or original state." Rebuild, Restore, Merriam-
Webster, https://www.merriam-webster.com/dictionary (last visited Jul. 24,
2024) (emphasis added).
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This leads us to consider the phrase that follows the list of verbs: "a
lawfully existing structure to a usable condition after decay or damage has
occurred." We concur with the DEP and Nicosia that this phrase does not have
to modify each of the verbs that precedes it. If that were the case, it would
eliminate the wide range of circumstances in which an owner would want to
"replace" a structure for reasons other than disrepair. The definition of
reconstruct was crafted broadly to include replacements, not just synonyms for
fixing things that need repair.
Such an interpretation also harmonizes the GPC 5 with the GPC 6, which
is a permit used for construction of new single-family dwellings on lots with no
preexisting structures. N.J.A.C. 7:13-8.6. No additional requirements are
imposed on GPC 6 applicants beyond those applicable to GPC 5s, suggesting
the distinction between the two permits is the existence of a prior structure. If
GPC 5 construction required decay or damage of the preexisting structure,
replacement of dwellings for energy efficiency, aesthetic, or other non-
rehabilitative purpose would not be suitable for any GPC. Thus, it would be
inexplicably harder to obtain approval for demolition and replacement of an
energy inefficient home than the automatically-authorized demolition and
replacement of a decayed home through a GPC 5 or the construction of a new
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home on a vacant lot through a GPC 6. Appellants' interpretation of the GPC 5
regulation conceivably could incentivize property owners to encourage damage
or decay to qualify for a GPC 5.
Although the question is not free from doubt, we construe the agency's
regulation in the manner it has interpreted it. We do so mindful of the agency's
expertise within the zone of its statutory responsibilities. Although deference is
not warranted on pure questions of law, courts generally "afford substantial
weight to an administrative agency's own interpretation of its delegated
functions." State v. Coviello, 252 N.J. 539, 557 (2023); see also Patel v. N.J.
Motor Vehicle Comm'n, 200 N.J. 413, 420 (2009).
In reaching this conclusion, we by no means diminish the importance of
compliance with our state's environmental laws. The permit-by-certification
process authorized by the flood control statutes and regulations is a special
program designed to enable compliant property owners to obtain permits
expeditiously. That process ought not to be regarded as acquiescence to
environmental harm. Recipients of GPC 5 permits must still adhere to the
pertinent FHAC Act requirements as they proceed with construction. We trust
the DEP in its important role as an environmental enforcement agency will be
attentive to such compliance.
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Consequently, the DEP did not act in a manner that was arbitrary or
capricious, or contrary to law, in rejecting appellants' claim that Nicosia needed
to prove the existing house was damaged or decayed or in non-usable condition
in order to obtain a GPC 5. We therefore sustain its decision.
C.
To the extent we have not discussed any remaining arguments of
appellants, they lack sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).
However, nothing in this opinion precludes enforcement action if Nicosia fails
to comply with the conditions of the GPC 5 or applicable statutes or regulations.
Affirmed.
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