Hackensack Riverkeeper, Inc. and ny/nj Baykeeper

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1752-12T3

HACKENSACK RIVERKEEPER, INC. and NY/NJ BAYKEEPER, APPROVED FOR PUBLICATION Appellants, December 22, 2015 v. APPELLATE DIVISION

NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION,

Respondent. _______________________________________________

Argued May 19, 2015 – Decided December 22, 2015

Before Judges Messano, Ostrer and Tassini.

On appeal from the adoption of N.J.A.C. 7:7 by the Department of Environmental Protection.

Christopher Len argued the cause for appellants (Pringle, Quinn, Anzano, P.C., attorneys; Mr. Len and Edward Bonanno, on the brief; Andrea Leshak, on the supplemental brief).

Kristina Miles, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Miles, on the briefs).

Litwin & Provence, L.L.C., attorneys for amicus curiae American Littoral Society, Inc. (Gordon N. Litwin and Andrew J. Provence, on the brief). The opinion of the court was delivered by

MESSANO, P.J.A.D.

In Borough of Avalon v. New Jersey Department of

Environmental Protection, 403 N.J. Super. 590, 595 (App. Div.

2008), certif. denied, 199 N.J. 133 (2009) (Avalon), we

considered a challenge to certain regulations adopted in 2007 by

the New Jersey Department of Environmental Protection (DEP),

"referred to as the Public Access Rules, which substantially

expanded [DEP's] authority over public access to beaches and

other tidal waterways." We found the regulations were "not

statutorily authorized and therefore invalid[]." Id. at 597.

In response, DEP embarked upon another round of rulemaking,

culminating in the 2012 adoption of new Public Access Rules (the

Rules). 44 N.J.R. 2559(a) (Nov. 5, 2012).

Hackensack Riverkeeper, Inc., and NY/NJ Baykeeper, two non-

profit organizations (collectively, appellants), quickly filed

this appeal. We granted a motion by the American Littoral

Society, Inc. (ALS), to appear as amicus curiae. The three

organizations' professed missions include the conservation of

coastal areas and the promotion of public and community access

thereto and, in the case of appellants, the waters, watersheds

and wetlands of this State.

2 A-1752-12T3 Appellants argue that DEP has again arrogated to itself the

management of lands held in public trust, which power is

reserved to the Legislature and has not been delegated to DEP.

They also argue the Rules are preempted by, or improperly

infringe upon, powers reserved to the State's municipalities.

Appellants further contend that the Rules are not authorized by

the Coastal Area Facility Review Act (CAFRA), N.J.S.A. 13:19-1

to -21, or any other statute.

DEP contends that the Rules are authorized pursuant to the

public trust doctrine, and the agency has been implicitly

recognized as the proper governmental authority to manage lands

held in public trust. Alternatively, DEP contends that CAFRA

authorizes promulgation of the Rules. The agency also asserts

that the Rules encourage cooperation with municipalities that is

wholly consonant with the Municipal Land Use Law (the MLUL),

N.J.S.A. 40:55D-1 to -163. ALS similarly argues that the

Legislature has vested DEP with the authority to adopt

regulations necessary to promote and protect the waterfront.

Since the appeal was argued, DEP again revised the Rules.

See 47 N.J.R. 1392(a) (July 6, 2015). We asked appellants and

DEP to address these revised Rules and their impact, if any, on

the issues initially raised. Both sides assert that the

3 A-1752-12T3 revisions merely re-numbered the Rules and effectuated no

substantive changes.

We have considered the arguments in light of the record and

applicable legal principles. Some limited provisions of the

Rules could fall "within the fair contemplation of the

delegation of [an] enabling statute," CAFRA. In re N.J.A.C.

7:1B-1.1 et seq., 431 N.J. Super. 100, 116 (App. Div.) (citation

omitted), certif. denied, 216 N.J. 8 (2013). However, the Rules

apply to many municipalities that are not subject to CAFRA,

because that statute only applies to certain municipalities.

Moreover, the Rules far exceed the Legislature's limited

delegation of authority to DEP under CAFRA to regulate "land

uses in the coastal zone." Avalon, supra, 403 N.J. Super. at

601. We also agree with appellants that the Rules are not

authorized by any other legislative enactment or by the

Legislature's delegation of powers to DEP pursuant to the public

trust doctrine. We are constrained, therefore, to invalidate

the Rules.

I.

In their latest iteration, the Rules amend DEP's Coastal

Zone Management (CZM) regulations, N.J.A.C. 7:7. The CZM

regulations "establish[] the rules . . . regarding the use and

development of coastal resources[,]" and "are used in reviewing

4 A-1752-12T3 applications for coastal permits under [CAFRA]" and other

statutes. N.J.A.C. 7:7-1.1(a) (emphasis added). The CZM

regulations list "eight broad coastal goals," including

"[m]eaningful public access to and use of tidal waterways and

their shores." N.J.A.C. 7:7-1.1(c). The CZM regulations apply

to all DEP "actions and decisions," N.J.A.C. 7:7-1.2(a),

regarding the "coastal zone," defined as including not only

geographic areas subject to CAFRA, but also all other coastal

waters and tidal wetlands. N.J.A.C. 7:7-1.2(b).

In particular, appellants' challenge focuses on N.J.A.C.

7:7-9.48, the public trust rights rule, and N.J.A.C. 7:7-16.9,

the public access rule (before DEP's July 2015 re-codification,

N.J.A.C. 7:7E-3.50 and N.J.A.C. 7:7E-8.11, respectively).1

Pursuant to N.J.A.C. 7:7-9.48(b), public access to "lands and

waters subject to public trust rights" must be provided in

accordance with N.J.A.C. 7:7-16.9, and any development "that

does not comply with N.J.A.C. 7:7-16.9 . . . is discouraged

. . . ." N.J.A.C. 7:7-16.9, in turn, encourages, but does not

require, municipalities to create Municipal Public Access Plans

(MPAPs) that, among other things, identify current public access

points and corresponding signage, incorporate parking and other

1 See 46 N.J.R. 1051(a), 1053-57 (June 2, 2014) (DEP's table cross-referencing the Rules as adopted in 2012 with the changes proposed in 2014 and adopted in 2015).

5 A-1752-12T3 amenities to the maximum extent practicable, and plan for future

public access. N.J.A.C. 7:7-16.9(c)-(e).

DEP explained in 2012 that the new regulations

encourage municipalities to take an active role in designing and ensuring public access to beaches and tidal waters in ways that will work best for their respective circumstances. . . . Under the rules in place prior to this adoption, the Department evaluated public access only when an applicant applied to the Department for a coastal permit and was required to provide public access under those rules. The adopted rules enhance public access opportunities by encouraging municipalities to work with the Department to develop plans to help ensure that the public's access needs are met in a comprehensive and systematic approach. The Department will work with the municipalities on development of their access plan, and the plan will be required to meet the goals of the public access rules.

[44 N.J.R. at 2602 (response to comment 234) (emphasis added).]

More than two hundred municipalities are eligible to submit

MPAPs.2

A municipality, as part of its MPAP implementation

strategy, may create its own dedicated Public Access Fund, to

which developers contribute in lieu of providing public access

onsite. N.J.A.C. 7:7-16.9(f). The Rules provide formulae

2 See http://www.state.nj.us/dep/cmp/access/mpamunis.htm (list of eligible municipalities) (last visited Dec. 1, 2015).

6 A-1752-12T3 required to be used for the calculation of appropriate

contributions based upon the particular development. N.J.A.C.

7:7-16.9(f)(1) and (2).

After public notice and comment, and DEP review and

approval, a municipality must incorporate its MPAP into its

master plan, see N.J.S.A. 40:55D-5 and -28. N.J.A.C. 7:7-

16.9(j). At five-year intervals thereafter, a municipality must

provide DEP with a report detailing the status of all projects,

an accounting of its dedicated Public Access Fund, and a list of

problems and proposed remedies to assure compliance with the

MPAP. N.J.A.C. 7:7-16.9(j)(4). Any changes to the MPAP or to

the terms of a contribution made to the Public Access Fund must

be submitted first to DEP for "review and approval." N.J.A.C.

7:7-16.9(l). In addition, if the municipality fails to

implement or comply with its approved MPAP, DEP must "revoke its

approval." N.J.A.C. 7:7-16.9(m).

Once an MPAP is adopted as part of a municipality's master

plan, "public access required to satisfy the conditions of a

coastal permit for development in the municipality for permit

applications filed with [DEP] . . . shall be provided in

accordance with the [MPAP]." N.J.A.C. 7:7-16.9(k). However, if

a municipality does not adopt an MPAP, "public access along and

use of the beach and the shores shall be provided" in accordance

7 A-1752-12T3 with the regulations. N.J.A.C. 7:7-16.9(n). Depending upon the

nature and size of any particular commercial or residential

development, on-site access must be provided. N.J.A.C. 7:7-

16.9(n)(1) and (2). In addition, a municipality must have an

approved MPAP before DEP will approve a general permit for beach

and dune maintenance. N.J.A.C. 7:7-6.2(b).

During argument, we asked the Deputy Attorney General

representing DEP whether municipalities that did not adopt an

MPAP could suffer other negative consequences, specifically

eligibility for Green Acres funding. See 44 N.J.R. at 2630-32

(comments and responses 464-83). We were assured that they

would not. However, we note that DEP's current Green Acres

regulations provide:

(a) The following are ineligible to apply for Green Acres funding:

. . . .

4. Any local government unit that does not currently provide, or have active plans to provide, public access to the waterfront and to tidally-flowed and dry sand areas subject to the Public Trust Doctrine, consistent with the requirements of the Coastal Zone Management Rules at N.J.A.C. 7:7E–8.11 and governing law.

[N.J.A.C. 7:36-3.2(a)(4) (emphasis added).]

This "carrot-and-stick" approach to secure submission of

MPAP applications for approval and municipal compliance

8 A-1752-12T3 thereafter was publicly acknowledged by DEP. When the Rules

were first issued in 2012, the agency declared that there were

"adequate incentives for municipalities to want to develop and

seek Department approval of [MPAPs]." 44 N.J.R. at 2631

(response to comments 465-68). DEP explained that it was

not penalizing municipalities which do not have a [MPAP]. These municipalities will still be able to conduct beach and dune maintenance pursuant to an individual permit if they choose to not prepare a Municipal Public Access Plan. The Department believes that this differential treatment is appropriate to encourage the public access benefits that can be achieved through the cooperative planning effort reflected by a Department-approved [MPAP].

[44 N.J.R. at 2606 (response to comment 261).]

DEP's Commissioner called the consequences for municipalities

not participating in the MPAP scheme "'the club if we need it.'"3

II.

We set some well-known guideposts that inform our review.

"Judicial review of agency regulations begins with a presumption

that the regulations are both valid and reasonable[,]" and "the

party challenging a regulation has the burden of proving that

3 Jacqueline L. Urgo, N.J. sets in motion letting local decisions rule on beach access, The Philadelphia Inquirer (Apr. 5, 2011), http://articles.philly.com/2011-04-05/news/29384729_1_beach- access-public-access-long-beach-township. The document is contained in DEP's appendix.

9 A-1752-12T3 the agency's action was arbitrary, capricious or unreasonable."

N.J. Ass'n of Sch. Adm'rs v. Schundler, 211 N.J. 535, 548 (2012)

(citations and internal quotation marks omitted). "[W]e must

give great deference to an agency's interpretation and

implementation of its rules enforcing the statutes for which it

is responsible." In re Freshwater Wetlands Prot. Act Rules, 180

N.J. 478, 488-89 (2004) (citing In re Distrib'n of Liquid

Assets, 168 N.J. 1, 10-11 (2001)).

Accordingly, a challenger must "demonstrat[e] an

inconsistency between the regulation and the statute it

implements, a violation of policy expressed or implied by the

Legislature, an extension of the statute beyond what the

Legislature intended, or a conflict between the enabling act and

other statutory law that cannot be harmonized." N.J. Ass'n of

Sch. Adm'rs v. Cerf, 428 N.J. Super. 588, 596 (App. Div. 2012),

certif. denied, 213 N.J. 536 (2013). "While findings of ultra

vires actions are disfavored, [o]ur role is to enforce the will

of the Legislature because [s]tatutes cannot be amended by

administrative fiat." In re Agric., Aquacultural, &

Horticultural Water Usage Certification Rules, 410 N.J. Super.

209, 223 (App. Div. 2009) (alterations in original) (citations

and internal quotation marks omitted). "[I]f the regulation is

10 A-1752-12T3 plainly at odds with the statute, we must set it aside." In re

Freshwater Wetlands, supra, 180 N.J. at 489.

With these standards in mind, we consider the specific

arguments raised on appeal.

A.

Appellants argue that, by invoking the public trust

doctrine, DEP has again arrogated to itself the regulation of

public access to the State's waterways and shorelines. They

contend that unless we are prepared to contradict our decision

in Avalon, the result must be the same, and the Rules must be

stricken. DEP argues that Avalon has limited application to

this case because there we only considered a specific as-applied

challenge to two particular provisions of the 2007 regulations

that are no longer contained in the Rules. However, we agree

with appellants that, absent express authorization from the

Legislature, the public trust doctrine alone cannot justify

DEP's adoption of the Rules.

The public trust doctrine encompasses the "legal principle

that the State holds 'ownership, dominion and sovereignty' over

tidally flowed lands 'in trust for the people.'" City of Long

Branch v. Jui Yung Liu, 203 N.J. 464, 474 (2010) (quoting

Matthews v. Bay Head Improvement Ass'n, 95 N.J. 306, 316-17,

cert. denied, 469 U.S. 821, 105 S. Ct. 93, 83 L. Ed. 2d 39

11 A-1752-12T3 (1984)). Accord Raleigh Ave. Beach Ass'n v. Atlantis Beach

Club, Inc., 185 N.J. 40, 51 (2005); Borough of Neptune City v.

Borough of Avon-By-The-Sea, 61 N.J. 296, 304-05 (1972). The

doctrine's principles appear in English common law, and its

roots can be traced back to Roman civil law. Raleigh Ave.,

supra, 185 N.J. at 51-52; State v. Vogt, 341 N.J. Super. 407,

422 (App. Div.), certif. denied, 170 N.J. 206 (2001). As a

result, a "'State can no more abdicate its trust over property

in which the whole people are interested . . . than it can

abdicate its police powers.'" Matthews, supra, 95 N.J. at 319

(quoting Ill. Cent. R.R. v. Illinois, 146 U.S. 387, 453, 13 S.

Ct. 110, 118, 36 L. Ed. 1018, 1043 (1892)); E. Cape May Assocs.

v. State, Dep't of Envtl. Prot., 343 N.J. Super. 110, 142 (App.

Div.) ("the sovereign never waives its right to regulate the use

of public trust property"), certif. denied, 170 N.J. 211 (2001).

As the Court has reiterated:

Like many common-law principles, the public trust doctrine has adapted to the changing conditions and needs of the public it was created to benefit. Today, public rights in tidal lands are not limited to the ancient prerogatives of navigation and fishing, but extend as well to recreational uses, including bathing, swimming and other shore activities.

[Long Branch, supra, 203 N.J. at 475 (citations and internal quotation marks omitted).]

12 A-1752-12T3 "Whether natural, or man-made, the beach is an adjunct to ocean

swimming and bathing and is subject to the Public Trust

Doctrine." Van Ness v. Borough of Deal, 78 N.J. 174, 180

(1978). Therefore, "reasonable access to the sea is integral

to the public trust doctrine[, because] without access the

doctrine has no meaning." Raleigh Ave., supra, 185 N.J. at 53

(citation omitted). The Court has held that, pursuant to the

public trust doctrine, the public's right to access the beach

includes "access to and use of privately-owned dry sand areas as

reasonably necessary." Matthews, supra, 95 N.J. at 326

(emphasis added).

In Avalon, we considered a municipality's challenge to two

provisions of the 2007 rules that required public access to

municipal beaches "at all times," and conditioned eligibility

for appropriations from the "'Shore Protection Fund,'" N.J.S.A.

13:19-16.1, upon a municipality's agreement to provide

additional parking spaces and restrooms, and acquire the land

for these facilities by condemnation if necessary. Avalon,

supra, 403 N.J. Super. at 595. Regarding the requirement of

public access at all times, we noted that the Legislature had

specifically granted municipalities the authority to exercise

their police powers over publicly-owned lands. Id. at 598

(citing N.J.S.A. 40:48-2). We further observed that the

13 A-1752-12T3 Legislature had "recognized that seashore municipalities have

'exclusive control' over municipally-owned beaches." Id. at 599

(citing N.J.S.A. 40:61-22.20).4 We held:

In contrast to the express legislative delegation of broad general powers to municipalities to exercise exclusive control over municipally-owned beaches, the Legislature has not delegated any authority to the DEP to preempt or supervise a municipality's operation of its beaches. Moreover, we perceive no basis for implying such authority. It is the municipality, not the DEP, that owns and operates and

4 N.J.S.A. 40:61-22.20(a) (emphasis added), entitled "Municipal control over beaches, etc.; fees," provides in pertinent part:

The governing body of any municipality bordering on the Atlantic Ocean, tidal water bays or rivers which owns . . . lands bordering on the ocean, tidal water bays or rivers, or easement rights therein, for a place of resort for public health and recreation and for other public purposes shall have the exclusive control, government and care thereof and of any boardwalk, bathing and recreational facilities, safeguards and equipment, . . . and may . . . make and enforce rules and regulations for the government and policing of such lands, boardwalk, bathing facilities, safeguards and equipment; provided, that such power of control, government, care and policing shall not be construed in any manner to exclude or interfere with the operation of any State law or authority with respect to such lands, property and facilities.

DEP has not asserted that the exercise of municipal authority under this statue is pre-empted by other legislation or by application of the public trust doctrine.

14 A-1752-12T3 therefore bears responsibility for the management of its beaches.

[Ibid.]

Distinguishing "public trust doctrine cases the DEP relie[d]

upon," we concluded "the . . . doctrine does not provide any

basis for a DEP rule that preempts the statutory authority of

municipalities to regulate municipally-owned beaches, including

deciding when they shall be open to the public." Id. at 600.

We also rejected DEP's assertion that the public trust

doctrine justified adoption of the second regulation at issue.

Id. at 605.

The essential thrust of the cases dealing with application of the public trust doctrine to municipally-owned beaches has been that a municipality must provide non- residents with the same access to its beaches as its own residents . . . .

However, the Court has never held that the public trust doctrine requires a municipality that owns and operates a beach to provide a specified number of parking spaces and restrooms in proximity to the beach or that the DEP has the authority to impose such requirements upon a municipality. Therefore, we conclude that the public trust doctrine does not provide authorization for the DEP rules imposing these requirements.

[Ibid.]

In this case, DEP correctly notes that the Rules do not

compel municipalities to do anything, but rather encourage

15 A-1752-12T3 affected municipalities to cooperate with DEP in planning for

access through adoption of an MPAP. DEP argues that the public

trust doctrine, as interpreted by the Court, authorizes the

agency to act as steward of the State's coastal resources,

including assuring public access. See, e.g., N.J.A.C. 7:7-

16.9(aa) (describing DEP as "the State entity managing public

access along the shore," with "an obligation to ensure" access

under the public trust doctrine). However, consistent with our

assessment in Avalon, the cases DEP relies upon do not persuade

us that the public trust doctrine can serve as the fount of the

agency's regulatory power.

For example, DEP claims that in Lusardi v. Curtis Point

Property Owners Ass'n, 86 N.J. 217 (1981), the Court recognized

the agency "was one of three State entities charged with

promoting the State's interest in public access under the

[p]ublic [t]rust [d]octrine." DEP further asserts that Lusardi

and Matthews demonstrate that "even where the State as a whole

holds title to public trust lands, the ability to regulate it

has been passed to [] DEP." We disagree.

The Court in Lusardi considered whether a municipal zoning

ordinance that prohibited recreational use of privately-owned

oceanfront property was "an unreasonable exercise of the zoning

power in light of judicial, legislative and executive

16 A-1752-12T3 pronouncements establishing a statewide policy of encouraging

recreational use of dry sand beach areas." Lusardi, supra, 86

N.J. at 222. The Court found expressions of this "statewide

policy" in the public trust doctrine, legislation and the

coastal development policies promulgated by DEP. Id. at 227-28.

However, the Court made clear that "the public trust doctrine

[wa]s not directly applicable to th[e] case, which concern[ed]

the exercise of zoning power." Id. at 228. To the extent the

Court found DEP's regulations were "the most detailed expression

of this State's policies concerning the appropriate uses of

shoreline resources," it did so with reference to specific

statutory powers under CAFRA. Id. at 229.

Similarly, DEP's reliance upon Matthews is misplaced. In

Matthews, supra, 95 N.J. at 326, the Court relied exclusively

upon the public trust doctrine to conclude that "private

landowners may not in all instances prevent the public from

exercising its rights under the public trust doctrine[,]" and

"[t]he public must be afforded reasonable access to the

foreshore as well as a suitable area for recreation on the dry

sand." The Court's only mention of DEP's role was in a

footnote, recognizing that pursuant to CAFRA, the agency's

regulations supported unrestricted access to beaches. Id. at

325 n.8.

17 A-1752-12T3 Lastly, we reject DEP's claim that Raleigh Avenue

recognized the agency's independent regulatory authority

pursuant to the public trust doctrine. Without reciting the

tangled facts of the case, it suffices to say that the Court

rejected the property owner's claim that DEP "lack[ed]

jurisdiction to approve any fees charged" to the public for

services associated with the beach. Raleigh Ave., supra, 185

N.J. at 60. However, the Court made clear that it was "the

boardwalk pathway over the dunes to the . . . beach [which]

qualifies as a development, thereby triggering the DEP's CAFRA

jurisdiction over related use of the beach and ocean." Id. at

61.

The Legislature spoke clearly regarding municipally-owned

beaches when it enacted N.J.S.A. 40:61-22.20(a), and

municipally-owned property in general, when it enacted N.J.S.A.

40:48-1 (providing that "every municipality" may adopt and

enforce ordinances to "[m]anage, regulate and control the . . .

property . . . of the municipality"). Case law that has

developed regarding the public trust doctrine, including those

which have expanded its reach to privately-owned property, do

not support DEP's contention that the Legislature implicitly

delegated regulatory powers to the agency. DEP was not

18 A-1752-12T3 authorized to promulgate the Rules under the public trust

doctrine.

B.

Appellants next argue that DEP lacks the authority to

promulgate the Rules pursuant to CAFRA or any other statute,

and, as already noted, that the Rules conflict with the

Legislature's specific grant of authority to municipalities to

regulate municipally-owned land. DEP counters by arguing the

Rules were authorized pursuant to CAFRA.5 The agency also argues

that the Rules do not conflict with the MLUL.

5 We note, however, that DEP's only stated "rationale" for adoption of the Rules was the public trust doctrine. See N.J.A.C. 7:7-9.48(c); N.J.A.C. 7:7-16.9(aa). Additionally, at two points in its brief, in single sentences without any legal argument, DEP cites N.J.S.A. 13:1B-3(e) and N.J.S.A. 13:1D-9 as providing the statutory authority for promulgating the Rules. We have refused to consider such "cursory discussion[s]" of legal arguments not properly raised in separate point headings. Mid-Atlantic Solar Energy Indus. Ass'n v. Christie, 418 N.J. Super. 499, 508 (App. Div.), certif. denied, 207 N.J. 190 (2011). In any event, neither cited statute provides support for DEP's argument. N.J.S.A. 13:1B-3(e) simply provides that as part of his powers, the Commissioner may "[a]dopt, issue and promulgate . . . such rules and regulations as may be authorized by law[.]" N.J.S.A. 13:1D-9 vests DEP with broad powers primarily linked to general functions of conservation, education, environmental and ecological protection and pollution control. There is no mention of DEP's authority to plan for or implement public access to coastal areas.

19 A-1752-12T3 (1)

Some additional standards govern our consideration of

whether the Rules are authorized by CAFRA. "[W]hen a regulation

is challenged as contrary to the agency's statutory authority[,]

. . . the issue turns on statutory construction." In re

Adoption of N.J.A.C. 7:15-5.24(b), 420 N.J. Super. 552, 564

(App. Div.) (citing N.J. State League of Municipalities v. Dep't

of Cmty. Affairs, 158 N.J. 211, 222 (1999)), certif. denied, 208

N.J. 597 (2011). "[O]ur task in statutory interpretation is to

discern and effectuate the Legislature's intent." N.J. Dep't of

Envtl. Prot. v. Huber, 213 N.J. 338, 365 (2013) (citing Hubner

v. Spring Valley Equestrian Ctr., 203 N.J. 184, 194 (2010)).

We begin by looking at the statute's "plain language," read

"sensibly [and] in the context of the overall scheme in which

the Legislature intended the provision to operate." Ibid.

(citations omitted). "[A]n agency's legislative authority can

be implied by the statute or by 'the entire legislative scheme

of which it is a part.'" In re Adoption of N.J.A.C. 7:15-

5.24(b), supra, 420 N.J. Super. at 564 (quoting In re Stormwater

Mgmt. Rules, 384 N.J. Super. 451, 461 (App. Div.), certif.

denied, 188 N.J. 489 (2006)). "A court will imply powers to

enable the agency to effectuate the intent of the statute."

Ibid.

20 A-1752-12T3 "The primary purpose of CAFRA is to protect the unique and

fragile coastal zones of the State." In re Egg Harbor Assocs.

(Bayshore Centre), 94 N.J. 358, 364 (1983). "Although CAFRA is

principally an environmental protection statute, the powers

delegated to DEP extend well beyond protection of the natural

environment. Succinctly stated, the delegated powers require

DEP to regulate land use within the coastal zone for the general

welfare." Ibid.

By enacting CAFRA, the Legislature intended to limit

potential adverse environmental impacts while encouraging

development of compatible land uses in the coastal zone. Seigel

v. N.J. Dep't of Envtl. Prot., 395 N.J. Super. 604, 615 (App.

Div.) (citing N.J.S.A. 13:19-2), certif. denied, 193 N.J. 277

(2007). Thus, "[e]ach agency decision involving an application

for development under CAFRA invokes these 'competing policy

considerations.'" Ibid. (quoting In re Cape May Cty. Mun.

Utils. Auth., 242 N.J. Super. 509, 516 (App. Div. 1990)). CAFRA

specifically was intended to "preserve[] the most ecologically

sensitive and fragile area from inappropriate development and

provide[] adequate environmental safeguards for the construction

of any developments in the coastal area." N.J.S.A. 13:19-2

(emphasis added).

21 A-1752-12T3 We have previously discussed at length CAFRA's permitting

process and DEP's regulatory authority under the statute. See,

e.g., Dragon v. N.J. Dep't of Envtl. Prot., 405 N.J. Super. 478,

494-97 (App. Div.), certif. denied, 199 N.J. 517 (2009).

Succinctly stated, "CAFRA expressly requires that any

development within the State's specified 'coastal area' either

(1) be conducted under a permit issued pursuant to N.J.S.A.

13:19-5 or -5.1, or (2) be an activity that is explicitly

exempted from the permitting requirement by N.J.S.A. 13:19-5.2

or -5.3." Id. at 494.

In Avalon, we rejected DEP's argument that CAFRA authorized

the 2007 rule requiring public access to beaches at all times.

Avalon, supra, 403 N.J. Super. at 601. We held that "even

though CAFRA delegates authority to the DEP to regulate certain

land uses within the coastal zone, it does not preempt municipal

regulation under the [MLUL]." Ibid. (citing Bubis v. Kassin,

184 N.J. 612, 630 (2005); Lusardi, supra, 86 N.J. at 229).

Therefore, DEP's regulatory powers under CAFRA extended to "land

uses in the coastal zone, [but] the Legislature did not

authorize [] DEP to preempt the basic municipal power to manage

and control municipally-owned beaches, including deciding when

those areas should be open to the public." Id. at 601.

22 A-1752-12T3 As to the requirement of additional parking and bathroom

facilities contained in the 2007 version of the Rules, we

recognized that "CAFRA does not include any provision

authorizing [] DEP to condition the issuance of [] a permit upon

a municipality agreeing to provide additional parking spaces or

restrooms in order to facilitate public access to the beach."

Id. at 606. We rejected the agency's claim that because Raleigh

Avenue recognized DEP's jurisdiction to monitor beach fees, the

agency "ha[d] implied authority to impose whatever additional

obligations [] DEP deem[ed] appropriate to facilitate public

access to the beach." Id. at 607. We noted, DEP's authority to

review beach fees "can be viewed as 'incidental' to the powers

the Legislature expressly granted to [] DEP under CAFRA," but

prescribing parking and bathroom facilities involved important

policy questions within the "exclusive province of the

Legislature." Id. at 607-08. "The Legislature could of course

delegate authority for making these decisions to [] DEP.

However, CAFRA does not contain such a delegation of authority."

Id. at 608.

The only connection we discern between CAFRA's permitting

process and the most recent iteration of the Rules is that

applicants for CAFRA permits in municipalities that have adopted

approved MPAPs may satisfy public access requirements "in

23 A-1752-12T3 accordance with the [MPAP]."6 N.J.A.C. 7:7-16.9(c) and (k). As

already mentioned, in towns without approved MPAPs, an applicant

must comply with other provisions of the Rules that place

significant restrictions upon him or her. N.J.A.C. 7:7-

16.9(c)(2) and (n). For example, pursuant to N.J.A.C.

7:7-16.9(u), public access areas must be clearly marked by signs

approved by DEP, and, pursuant to N.J.A.C. 7:7-16.9(z), "areas

set aside for public access to tidal waterways and their shores

shall be permanently dedicated for public use through the

recording of a Department approved conservation restriction."

Perhaps DEP could choose to adopt a different permitting

process in municipalities that have adopted an MPAP. The

precise question is not before us, nor do we need to decide the

issue. We conclude that any nexus between CAFRA's general

statutory purposes, its permitting processes and the Rules is

limited at best, and it cannot justify the broad and pervasive

regulatory regime imposed by the Rules taken as a whole.

Lastly, we note that CAFRA applies only to a well-defined

"coastal area." N.J.S.A. 13:19-4. That "coastal area" is not

6 The record included DEP's template for formulating an MPAP, as well as one MPAP submitted by a municipality. Given the lack of specificity contained in these documents, it is unclear how a private landowner applying for an individual permit under CAFRA, for example, would necessarily satisfy his or her "public access requirements" by simply relying on the approved MPAP.

24 A-1752-12T3 co-extensive with the "coastal zone," to which the Rules

specifically apply. In short, CAFRA does not serve as explicit

or implicit authority for DEP to promulgate the Rules.

(2)

For the sake of completeness, we address appellants'

argument that the Rules conflict with provisions of the MLUL and

other statutes that embody the Legislature's express delegation

of powers to municipalities. Specifically, they argue DEP

cannot require that a municipality wishing to adopt an MPAP

incorporate same in its master plan, nor can DEP authorize the

creation of municipal Public Access Funds.

The MLUL is "a comprehensive statute that allows

municipalities to adopt ordinances to regulate land development

'in a manner which will promote the public health, safety,

morals and general welfare' using uniform and efficient

procedures." Rumson Estates, Inc. v. Mayor & Council of Fair

Haven, 177 N.J. 338, 349 (2003) (quoting Levin v. Twp. of

Parsippany-Troy Hills, 82 N.J. 174, 179 (1980)). However, a

municipality's power "must be exercised in strict conformity

with the delegating enactment — the MLUL." Toll Bros. v. Bd. of

Chosen Freeholders of Burlington, 194 N.J. 223, 243 (2008).

Two goals of the MLUL are:

To provide sufficient space in appropriate locations for a variety of

25 A-1752-12T3 agricultural, residential, recreational, commercial and industrial uses and open space, both public and private, according to their respective environmental requirements in order to meet the needs of all New Jersey citizens.

. . . .

To promote the conservation of historic sites and districts, open space, energy resources and valuable natural resources in the State and to prevent urban sprawl and degradation of the environment through improper use of land . . . [.]

[N.J.S.A. 40:55D-2(g) and (j) (emphasis added).]

N.J.S.A. 40:55D-28(b) requires that a master plan must include

"[a] statement of objectives, principles, assumptions, policies

and standards" and "[a] land use plan element . . . ." N.J.S.A.

40:55D-28(b)(1) and (b)(2). The statute then sets forth

fourteen other discretionary elements.

The land use plan element requires consideration of

"topography, soil conditions, water supply, drainage, flood

plain areas, marshes, and woodlands[.]" N.J.S.A. 40:55D-

28(b)(2)(a). Discretionary elements include a "recreation plan

element," that includes "a comprehensive system of areas and

public sites for recreation[,]" and a "conservation plan

element" that provides "for the preservation, conservation, and

utilization of natural resources, including . . . marshes,

26 A-1752-12T3 wetlands, harbors, rivers and other waters . . . ." N.J.S.A.

40:55D-28(b)(7) and (8).

Given this extensive list of a master plan's permissible

contents, we reject appellants' argument that, by permitting

municipalities to adopt an MPAP and requiring them to

incorporate it as part of their master plans, the Rules violate

this portion of the MLUL. Adopting an MPAP seems consistent

with these required and permitted portions of a master plan.7

However, we note that the MLUL provides that a master plan

must be periodically re-examined, N.J.S.A. 40:55D-89, the

reexamination report must include specific recommendations as to

amendments to the master plan, N.J.S.A. 40:55D-89(d), and the

failure to adopt a re-examination report "constitute[s] a

rebuttable presumption that the municipal development

regulations are no longer reasonable." N.J.S.A. 40:55D-89.1.

We express substantial doubt that those provisions of the Rules

requiring the regular update of MPAPs and prohibiting amendment

without DEP approval can be harmonized with these provisions of

the MLUL.

7 We note that the Legislature anticipated that a master plan could designate private property for anticipated public use, and the Planning Board could reserve those locations for one year, subject to just compensation to an affected developer. See N.J.S.A. 40:55D-44.

27 A-1752-12T3 We do agree with appellants that the creation of municipal

Public Access Funds by which participating municipalities may,

pursuant to the Rules, receive monetary contributions from

permit applicants is, absent a specific legislative grant of

authority, ultra vires. In New Jersey Shore Builders Ass'n v.

Township of Jackson, 199 N.J. 449 (2009), the Court concluded

that the municipal appellants lacked the authority to promulgate

ordinances that required developers to set aside open space or

make payments in lieu thereof. Id. at 452. The Court

recognized that the "statutory authority that permits a

municipality to require contributions for off-tract improvements

is limited." Id. at 453 (citing N.J.S.A. 40:55D-42 ("referring

to contributions for off-tract improvements to water, sewer,

drainage, and street improvements only")).

DEP cites no statutory authority by which municipalities

may accept monetary contributions from permit applicants simply

by adopting an MPAP, and no such authority is provided by the

MLUL or any other statute that we located. Those provisions of

the Rules that empower a municipality to create a Public Access

Fund lack any statutory authority and are ultra vires.

III.

In sum, we conclude that absent a specific legislative

grant of authority, DEP was not authorized by the public trust

28 A-1752-12T3 doctrine to promulgate the Rules. We further conclude that

CAFRA's permitting provisions might implicitly authorize limited

portions of the Rules, but it is not our task to identify which

limited portions of the Rules could be so authorized. Given

their 1) application beyond CAFRA's territorial limits, and 2)

their extensive scope, the Rules exceed any implied grant of

legislative authority under the statute. Lastly, we conclude

that the creation of a municipal Public Access Fund would be an

ultra vires exercise of municipal power, and, while the MLUL

could authorize adoption of a MPAP as part of a municipal master

plan, the provisions of the MLUL that govern amendment of the

master plan leave no room for DEP's pervasive involvement in the

process as set forth in the Rules.

We therefore conclude that the Rules must be stricken, and

we invalidate N.J.A.C. 7:7-9.48, the public trust rights rule,

and N.J.A.C. 7:7-16.9, the public access rule, as well as any

other provisions of the regulations that rely upon those two

sections.

29 A-1752-12T3