MICHAEL BARRY VS. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, ETC. (NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION)

NOT FOR PUBLICATION WITHOUT THE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-2428-17T2
MICHAEL BARRY,
Petitioner-Appellant,
v.
NEW JERSEY DEPARTMENT
OF ENVIRONMENTAL
PROTECTION, LAND USE
REGULATION,
Respondent-Respondent.
______________________________
Submitted January 15, 2019 – Decided August 6, 2019
Before Judges Suter and Geiger.
On appeal from the New Jersey Department of
Environmental Protection.
Connell Foley LLP, attorneys for appellant (Kevin J.
Coakley, of counsel; Ryan Andrew Benson, on the
briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Melissa H. Raksa, Assistant Attorney
General, of counsel; Jennifer Lauren Moriarty, Deputy
Attorney General, on the brief).
PER CURIAM
Michael Barry (petitioner) appeals a final decision by the Commissioner
of the Department of Environmental Protection (DEP) that dismissed his
administrative appeal of a Coastal Area Facility Review Act (CAFRA) 1 permit.
We review this matter de novo and conclude that the Commissioner's decision
was consistent with applicable regulations.
In 2011, petitioner applied to DEP for a CAFRA permit to reconstruct and
expand his existing single-family dwelling located in Long Branch along the
Atlantic Ocean. The application stated the proposed construction was located
within "150 [feet] of the landward limit of the dune" and because it was landward
of the dune, the "project [was] not subject to the policy of [the dune regulation]."
The dune regulation prohibited development on dunes except for
development that had no "feasible alternative" and would not cause "significant
adverse long-term impacts to the natural functioning of the beach and dune
system . . . ." N.J.A.C. 7:7E-3.16(b).2 Expansion or reconstruction of a single-
family home must comply with the dune regulation. The regulation allowed
exceptions if certain criteria were met, which included the recording of "[a ]
1
N.J.S.A. 13:19-1 to -21.
2
Amended by 47 N.J.R. 1392(a) (July 6, 2015).
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conservation restriction for the dune areas waterward of the existing and/or
approved single-family home or duplex and/or accessory development . . . ."
N.J.A.C. 7:7-7.9(d).3
Following a site inspection of the property, DEP advised petitioner to
modify his plan so that it complied with the dune regulation because "the entire
site is a dune." DEP then issued a permit in November 2011 that allowed
petitioner to demolish and rebuild the house subject to conditions.
Administrative Condition Two (Condition Two) provided, "Acceptance of
permit: If you begin any activity approved by this permit, you thereby accept
this document in its entirety, and the responsibility to comply with the terms and
conditions. If you do not accept or agree with this document in its entirety, do
not begin construction." General Condition Three required the construction to
comply with the plans that were submitted and "said conditions." Administrative
Condition Four (Condition Four) provided:
[p]rior to site preparation, a conservation restriction for
the area westward of the eastern façade of the proposed
single[-]family home . . . shall be RECORDED with the
Office of the County Clerk . . . in the county wherein
the lands included in this permit are located. The
conservation restriction for dune areas shall reflect
exactly what is provided on the Division's web site . . .
and must accompany and reference a site plan, with all
3
Amended by 47 N.J.R. 1392(a) (July 6, 2015).
A-2428-17T2
3
restricted areas clearly delineated . . . . Said restriction
shall run with the land and be binding upon all
successive owners.
Petitioner took the position that the area from the house to the municipal
building line was not part of a dune and should not be subject to the conservation
restriction required by Condition Four. He was willing to record a conservation
restriction that was smaller in area. Although DEP personnel suggested another
site inspection could be conducted, that did not occur, and the issue about the
scope of the restriction was not resolved.
On March 6, 2012, petitioner took two actions. He filed a request for an
administrative hearing with DEP's Office of Legal Affairs, challenging the
permit's conservation restriction requirement. He argued Condition Four was
erroneous and overbroad because "the dune on the property ends east of th e
[b]uilding [l]ine of the property, and does not extend further west to the façade
of the proposed development." 4
Petitioner's second action was to notify DEP's Bureau of Coastal
Regulation that he would be recording a conservation restriction in the fo rm
required by DEP and a deed memorializing the permit conditions. The letter
4
On July 31, 2012, DEP advised the matter would be transmitted to the Office
of Administrative Law (OAL) for a hearing.
A-2428-17T2
4
noted that he would be asking for an administrative hearing to challenge the
scope of the conservation restriction.
Petitioner recorded the conservation restriction on April 5, 2012. It
conveyed a conservation restriction to DEP that was consistent with the permit.
The recorded conservation restriction provided that this was "the entire
agreement of the parties . . . and superseded all prior discussions, negotiations,
understandings or agreements relative to the easement . . . ." It also provided
the "Grant of Conservation Restriction/Easement may only be removed pursuant
to N.J.S.A. 13:8B-1 [to -9]." Petitioner commenced reconstruction of the house
in the fall of 2012, and it now is completed.
Petitioner's hearing request was transmitted to the OAL in February 2014. 5
A year later following discovery, DEP filed a motion for summary decision.
DEP argued that under Condition Two, petitioner accepted all the conditions of
the permit once he commenced construction. This included Condition Four
relating to the conservation restriction. Also, because the conservation
restriction was recorded, DEP argued the only way for petitioner to modify or
release it would be to comply with the Conservation Restriction and Historic
5
The reason for the delay was not explained.
A-2428-17T2
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Preservation Restriction Act (CRHPA), 6 and the procedures that it required,
including a public hearing.
Petitioner opposed the motion, arguing that he acted in good faith by
requesting a hearing and by completing construction in conformity with the
terms of the permit. He claimed the construction took place entirely outside of
the area restricted by the conservation easement. He disagreed with the scope
of the conservation restriction. He argued the OAL had authority to resolve
whether the permit's conservation restriction was overbroad.
In the Initial Decision issued two years later, the Administrative Law
Judge (ALJ) granted DEP's motion for summary decision, concluding that
petitioner forfeited his right to object to Condition Four "once he began
construction on the new house." Also, because of the CRHPA, the OAL could
not release the conservation restriction without the approval of the DEP
Commissioner. The ALJ cited Lynch v. California Coastal Comm'n, 3 Cal. 5th
470 (2017), for the proposition that petitioner forfeited his right to proceed.
On December 21, 2017, the Commissioner's final decision adopted the
Initial Decision and dismissed petitioner's case. The final decision concluded
that petitioner's challenge failed because he "effectively accepted the permit by
6
N.J.S.A. 13:8B-1 to -9.
A-2428-17T2
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commencing and completing construction in compliance with it." Under the
regulations, if a hearing was requested on the permit, construction was not to
commence until the issues were resolved. The purpose of the regulation was to
promptly resolve disputes. The final decision provided that because
"[p]etitioner received the full benefits of the permit, he [could] not now
challenge the permit condition requiring the conservation restriction . . . ." This
did not preclude petitioner from seeking a "release or modification" under th e
[CRHPA], but the final decision noted this required a public hearing and
consideration of the public's interest.
On appeal, petitioner claims he did not forfeit his right to challenge
Condition Four by starting work on the house, rather than waiting ye ars for a
decision, because he complied with all of the permit conditions. He complains
that Condition Four should not have been imposed; it was arbitrary, capricious
and unreasonable, violated legislative policies and was not supported by credible
evidence. He also argues the CRHPA did not prevent the OAL from hearing his
case.
We review an agency's summary decision de novo because it is a legal
determination. L.A. v. Bd. of Educ. of City of Trenton, 221 N.J. 192, 204 (2015)
(citing Contini v. Bd. of Educ. of Newark, 286 N.J. Super. 106, 121-22 (App.
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Div. 1995)). We are not "bound by [an] agency's interpretation of a statute or
its decision on a strictly legal issue." Ibid. (alteration in original) (quoting Dep't
of Children & Families, N.J. Div. of Youth & Family Servs. v. T.B., 207 N.J.
294, 302 (2011)).
The standard governing an agency's summary decision under N.J.A.C.
1:1-12.5 is "substantially the same as that governing a motion under Rule 4:46-
2 for summary judgment in civil litigation." Id. at 203 (quoting Contini, 286
N.J. Super. at 121-22). Summary judgment must be granted if "the pleadings,
depositions, answers to interrogatories and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact
challenged and that the moving party is entitled to a judgment or order as a
matter of law." R. 4:46-2(c); accord Brill v. Guardian Life Ins. Co. of Am., 142
N.J. 520, 540 (1995).
"CAFRA grants broad authority to the DEP to protect the environ ment
and to regulate land use within the coastal area for the general welfare." In re
Cape May Cty. Mun. Utils. Auth., 242 N.J. Super. 509, 514 (App. Div. 1990)
(citing In re Egg Harbor Assocs. (Bayshore Centre), 94 N.J. 358, 364 (1983);
Crema v. N.J. Dep't of Envtl. Prot., 94 N.J. 286 (1983)). "The primary purpose
of CAFRA is to protect the unique and fragile coastal zones of the State." In re
A-2428-17T2
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Egg Harbor Assocs., 94 N.J. at 364 (alteration in original) (quoting N.J.S.A.
13:19-2). "[T]he Legislature has granted DEP substantial authority to regulate
development in the coastal area including the authority to grant a permit subject
to conditions found to be 'reasonably necessary to promote the public health,
safety and welfare . . . and to preserve, protect and enhance the natural
environment.'" In re Cape May, 242 N.J. Super. at 512 (alteration in original)
(quoting In re Egg Harbor Assocs., 94 N.J. at 364).
We agree with the final decision that petitioner waived his ability to
challenge the permit conditions because, under the permit and the regulations in
effect at the time, he accepted the conditions by proceeding with construction.
The regulations provide that if a hearing is requested "the operation of the permit
or authorization shall be automatically stayed in its entirety . . . . All permitted
activities shall stop . . . and shall not be started again until the matter is resolved,
unless the Department grants an exception in writing." N.J.A.C. 7:7-28.3(a).7
When this regulation was proposed, DEP stated that it was to "prevent[] a
permittee from undertaking activities while permit conditions, which are
7
DEP had a similar regulation prior to July 2015. The former regulation,
N.J.A.C. 7:7-5.1(d), stated that "[i]f a permittee submits a hearing request
contesting any condition of a permit, construction shall not commence until the
adjudicatory hearing is resolved, unless the commissioner issues a stay of
condition pursuant to N.J.A.C. 7:7-5.3(c)." 47 N.J.R. 1392(a) (July 6, 2015).
A-2428-17T2
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integral to the Department's finding that the permit application meets the
standard for approval under the rules, are contested." 46 N.J.R. 1051(a) (June
2, 2014). The permit issued to petitioner reiterated the same condition: if
petitioner proceeded with construction, he was accepting all the terms of the
permit.
It was reasonable for DEP to want to resolve objections to permit
conditions prior to construction. DEP's regulation stays the permit if a hearing
is requested so that objections to the conditions can be resolved before
construction.
Petitioner does not claim that he lacked notice his conduct would
constitute acceptance of the permit. Instead, he tried to preserve his options by
filing a hearing request and then shortly after, proceeding with construction.
This is not what the permit or the regulations allowed.
Petitioner did not request a stay of the conditions in the permit. We reject
petitioner's argument that his correspondence with DEP employees was a stay
request. The letters did not even make reference to a stay. He did not file a stay
request with the Commissioner. DEP was not required to request a stay because
the regulation provided that construction would be stayed until the issues were
resolved. See N.J.A.C. 7:7-28.3(a).
A-2428-17T2
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Petitioner is incorrect that it was DEP's responsibility to tell him he
"would need to file something more formal and/or receive approval before
proceeding with construction." Under the current regulation, the permit is
automatically stayed once a hearing is requested. N.J.A.C. 7:7-28.3(a). The
former regulation, N.J.A.C. 7:7-5.1(d), was clear that "construction shall not
commence until the adjudicatory hearing is resolved, unless the Commissioner
issues a stay of the condition."
Petitioner argues that Condition Four was not an integral part of the permit
but there was nothing in the regulation nor the permit that limited the conditions
to "integral" provisions. Also, a condition that related to the extent of a dune
was plainly integral because the purpose of a conservation restriction is to
protect dune areas by "retaining land or water areas predominantly in their
natural state . . . [and] forbid[ding] or limit[ing] any . . . acts or uses detrimental
to the retention of land or water areas . . . ." N.J.A.C. 7:7-1.5; see also N.J.S.A.
13:19-2.
We are not persuaded by petitioner's argument that the final decision erred
by citing Lynch, 3 Cal. 5th at 470. The final decision did not rely on that case
for authority but cited it merely to "illuminate[] the rationale that the Department
provided when it promulgated the rule regarding acceptance of a permit . . . ."
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The condition in the permit that required a conservation restriction was
not violative of legislative policies. A conservation restriction is authorized by
N.J.S.A. 13:8B-2. We have no occasion to resolve whether DEP's conclusion
about the extent of the dune was arbitrary, capricious or unreasonable or
supported by credible evidence because petitioner accepted the terms of the
permit by proceeding with construction and in doing so accepted the
conservation restriction.
Petitioner raises for the first time on appeal that the conservation
restriction constitutes an unconstitutional taking under the Fifth Amendment of
the United States Constitution. We decline to consider questions that were not
presented to the Commissioner. See In re Stream Encroachment Permit, Permit
No. 0200-04-0002.1 FHA, 403 N.J. Super. 587, 602 (App. Div. 2008) (citing
Bryan v. Dep't of Corr., 258 N.J. Super. 546, 548 (App. Div. 1992)).
The conservation restriction expressly provided that its revocation was
subject to the provisions of the CRHPA. The final decision made clear that
petitioner is not precluded from seeking a modification or revocation of the
conservation restriction under provisions of the CRHPA. 8 We agree with the
8
DEP's brief advised that petitioner has filed this application.
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final decision that dismissed petitioner's case because he accepted the permit
conditions when he proceeded with construction.
Affirmed.
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