NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2570-22
IN THE MATTER OF DENIAL OF THIRD PARTY HEARING REQUEST OF P.T. JIBSAIL FAMILY LIMITED PARTNERSHIP FILE NO. 1515-06-0012.1 WFD 170001; WFD 180001; OFFICE OF LEGAL AFFAIRS FILE NO. 19-06. _______________________________
Argued January 22, 2025 – Decided May 13, 2025
Before Judges Gilson, Firko and Augostini.
On appeal from the New Jersey Department of Environmental Protection.
Michael G. Sinkevich argued the cause for appellant Janine Morris Trust (Lieberman Blecher & Sinkevich, PC, attorneys; Michael G. Sinkevich, of counsel and on the briefs).
Zachary A. Klein argued the cause for respondent P.T. Jibsail Family Limited Partnership (Cullen and Dykman, LLP, attorneys; Amie C. Kalac and Neil Yoskin, of counsel and on the brief).
W. Conor Kennedy, Deputy Attorney General, argued the cause for respondent New Jersey Department of Environmental Protection (Matthew J. Platkin, Attorney General, attorney; Sookie Bae-Park, Assistant Attorney General, of counsel; W. Conor Kennedy, on the brief).
PER CURIAM
On May 19, 2017, the New Jersey Department of Environmental
Protection (DEP) issued a Waterfront Development Permit (2017 WFD Permit)
to defendant P.T. Jibsail Family Limited Partnership (Jibsail), in part, to build
an extension to its existing recreational dock. In 2018, Jibsail built the extension
several inches beyond the scope of the permit. In March 2019, Jibsail applied
for and was granted a technical permit modification (2019 Modification Permit).
On April 23, 2019, a neighboring property owner, Janine Morris Trust (JMT),
filed an adjudicatory hearing request regarding the 2019 Modification Permit.
The DEP denied JMT's request, finding that JMT lacked standing. The
DEP also rejected JMT's adjudicatory hearing request regarding the 2017 WFD
Permit as time barred. On April 28, 2023, JMT appealed the DEP's decision.
On December 18, 2024, JMT filed a motion seeking to amend its notice of appeal
to "clarify" that its appeal included a direct challenge to the issuance of the 2019
Modification Permit.
Based upon our holding in Musconetcong Watershed Ass'n v. N.J. Dept.
of Env't Prot., 476 N.J. Super. 465 (App. Div. 2023), the DEP's determination
A-2570-22 2 became a final agency decision when it denied JMT's request for an adjudicatory
hearing to challenge the DEP's decision. Thus, on this appeal, we address the
DEP's decision denying JMT's adjudicatory hearing request as to both the 2017
WFD Permit, and the 2019 Modification Permit as well as the merits of the 2019
Having reviewed the administrative record and applicable law, we affirm
the DEP's determination that JMT was not entitled to an adjudicatory hearing to
challenge either the 2017 WFD Permit or the 2019 Modification Permit. We
also affirm the DEP's final determination granting Jibsail its 2019 Modification
Permit.
I.
Jibsail and JMT are neighboring waterfront property owners in the
Borough of Lavallette. In 2017, Jibsail applied for a waterfront development
permit to build "a 4' x 185' pier dock extension from an existing permitted 128'
pier dock" and to "install two 12' x 12' open type boat lifts and remove one boat
lift located at the end of the [current] pier dock." The DEP regulates
development on "any waterfront upon any navigable water" pursuant to the
Waterfront Development Act, N.J.S.A. 12:5-1 to -11. Under N.J.S.A. 12:5-3(a),
A-2570-22 3 any "construction or alteration of a dock" requires a DEP permit, unless one of
the enumerated exemptions applies.
As required, on March 28, 2017, Jibsail sent notices to its neighboring
property owners to advise them of the proposed construction to the dock and
alert them to the procedure and timeframe for objecting. Jibsail sent the required
notice to JMT detailing the proposed application and attaching a copy of the
survey. The record is void of JMT filing any objection to Jibsail's application.
After reviewing Jibsail's application, the DEP required two revisions of
the application, which resulted in the length of the dock being shortened by
approximately twenty feet. On May 19, 2017, the DEP approved Jibsail's
application and granted the 2017 WFD Permit, as modified, allowing for a 4' x
163.7' dock extension, two 12' x 12' open-type boat lifts and the removal of one
boat lift. On June 7, 2017, the DEP published the notice of approval in the DEP
Bulletin. The United States Army Corps of Engineers also approved Jibsail's
2017 WFD Permit, as modified.
On June 26, 2018, the DEP sent a notice of violation to Jibsail because the
newly constructed dock extension did not comply completely with the permit
specifications and was 1.7 feet out of compliance with the approved plan. As
A-2570-22 4 constructed, the dock was 1.7 feet further away from JMT's property than
originally planned.
On October 30, 2018, Jibsail applied for a modified permit authorizing the
1.7 foot discrepancy and other technical deficiencies. In support of its
application, Jibsail attached a policy compliance statement examining whether
the proposed permit application complied with the Coastal Zone Management
(CZM) Rules. On March 20, 2019, the DEP approved Jibsail's 2019
Modification Permit, a copy of which was forwarded to JMT.
On April 23, 2019, JMT filed an adjudicatory hearing request regarding
both the 2017 WFD Permit and the 2019 Modification Permit. On March 14,
2023, the DEP's Office of Legal Affairs denied JMT's adjudicatory hearing
request, appealing both the 2017 WFD Permit and the 2019 Modification Permit.
With regard to the 2017 WFD Permit, which JMT contended it had timely
objected to, the DEP determined that JMT filed its objection "several years" late
and did not demonstrate "substantial compliance within the statutory time
frame" to request a hearing. Thus, the DEP concluded that Jibsail's request for
a hearing as to the 2017 WFD Permit was time barred.
Regarding the 2019 Modification Permit, the DEP concluded that JMT
lacked standing because it failed to "demonstrate: (1) a right to a hearing under
A-2570-22 5 the applicable statute, or (2) a 'particularized property interest' of constitutional
significance." N.J.S.A. 52:14B-3.2.
JMT presents two arguments for our consideration on appeal: (1) the
DEP's denial of an adjudicatory hearing was arbitrary, capricious, and
unreasonable; and (2) the DEP's issuance of the 2019 Modification Permit was
also arbitrary, capricious, and unreasonable and lacked the support of credible
evidence in the record.
II.
Appellate review of an agency's decision is limited. Pub. Serv. Elec. &
Gas Co. v. N.J. Dep't of Env't Prot., 101 N.J. 95, 103 (1985). Reversal is not
warranted unless the agency's decision is: "(1) . . . arbitrary, capricious, or
unreasonable; (2) . . . violated express or implied legislative policies; (3) . . .
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. N.J. Dep't of Env't Prot., 191 N.J. 38,
48 (2007).
Moreover, "[i]n reviewing an administrative agency's decision, we will
grant considerable deference to the agency's expertise, where such expertise is
a relevant factor." In re Petition of S. Jersey Gas Co., 447 N.J. Super. 459, 480
A-2570-22 6 (App. Div. 2016); In re Freshwater Wetlands Prot. Act Rules, 180 N.J. 478, 489
(2004). A reviewing court "may not second-guess those judgments of an
administrative agency which fall squarely within the agency's expertise." In re
Stream Encroachment Permit, 402 N.J. Super. 587, 597 (App. Div. 2008).
"Where the determination of the operational facts is committed to the expert
discretion of the administrative tribunal, the judicial authority cannot substitute
its judgment for that of the administrative tribunal." Bailey v. Driscoll (Bailey
II), 19 N.J. 363, 375 (1955) (quoting In re Plainfield-Union Water Co., 11 N.J.
382, 396 (1953)).
"Ordinarily, [the] DEP is given great deference when it applies its
considerable expertise and experience to the difficult balance between
development and conservation." Stream Encroachment Permit, 402 N.J. Super.
at 597 (quoting Crema v. N.J. Dep't of Env't Prot., 192 N.J. Super. 505, 510
(App. Div. 1984)). "However, '[w]hile [a reviewing court] must defer to the
agency's expertise, we need not surrender to it.'" Pinelands Pres. All. v. State,
Dep't of Env't Prot., 436 N.J. Super. 510, 524 (App. Div. 2014) (quoting N.J.
Chapter of Nat'l Ass'n of Indus. & Off. Parks v. N.J. Dep't of Env't Prot., 241
N.J. Super. 145, 165 (App. Div. 1990)). "The party who challenges [the] DEP's
decision to permit development of a certain location has the 'burden of
A-2570-22 7 demonstrating, not that the agencies' action was merely erroneous, but that it
was arbitrary.'" Stream Encroachment Permit, 402 N.J. Super. at 597 (quoting
Crema, 192 N.J. Super. at 510).
Furthermore, although deference must be given "to the agency's findings
of facts, and some deference to its interpretation of statutes and regulations
within its implementing and enforcing responsibility, [the appellate court is] in
no way bound by the agency's interpretation of a statute or its determination of
a strictly legal issue." Utley v. Bd. of Rev., Dep't of Lab., 194 N.J. 534, 551
(2008) (internal citations and quotation marks omitted).
A. Right to an Adjudicatory Hearing.
JMT contends that the DEP's denial of its request for an adjudicatory
hearing was arbitrary, capricious, and unreasonable. JMT argues that it has a
particularized property interest sufficient to entitle it to an adjudicatory hearing.
The Administrative Procedure Act (the Act) "define[s] and
circumscribe[s]" a third-party's right to object and request a formal
administrative hearing to challenge the issuance of a permit that may infringe
upon their property rights. In re Riverview Dev., LLC, 411 N.J. Super. 409,
424-25 (App. Div. 2010). The Act provides "third-party objectors" with the
opportunity "to present their concerns about proposed permits to agency
A-2570-22 8 decision-makers before they reach a final determination" by affording "all
interested persons . . . [a] reasonable opportunity to submit data, views or
arguments, orally or in writing, during any proceedings involving a permit
decision . . . ." Id. at 425 (alteration in original) (citing N.J.S.A. 52:14B-3.1(a)).
Once a final agency decision is made, the Act construes more narrowly a
third-party's right to an adjudicatory hearing and "strictly limits [those]
situations . . . ." Id. at 424. Under the Act, a third-party is defined as any person
other than:
a. An applicant for any agency license, permit, certificate, approval, chapter, registration or other form of permission required by law;
b. A State agency; or
c. A person who has particularized property interest sufficient to require a hearing on constitutional or statutory grounds.
[N.J.S.A. 52:14B-3.2.]
By limiting a third-party's right to an adjudicatory hearing, "the Legislature
unmistakably intended to prevent the processing of permit applications by State
agencies from being bogged down by time consuming and costly formal
hearings in the [Office of Administrative Law.]" In re Riverview Dev., 411 N.J.
Super. at 424; see also N.J.S.A. 52:14B-3.1(c). Thus, to warrant an adjudicatory
A-2570-22 9 hearing, a third-party must demonstrate a "particularized property interest"
based upon either constitutional or statutory grounds. N.J.S.A. 52:14B-3.1(c).
The CZM Rules establish the procedure and timeframe for submitting an
objection and requesting an adjudicatory hearing. Specifically, a third-party
objector must submit a written request for an adjudicatory hearing to the Office
of Legal Affairs within thirty days after the publication of notice of the DEP's
permit decision in the DEP Bulletin. N.J.A.C. 7:7-28.1(b). A request submitted
after this deadline "shall" be denied. Ibid. If the request is timely, however, the
DEP must respond within thirty days. Musconetcong Watershed Ass'n, 476 N.J.
Super. at 482 (citing N.J.A.C. 1:1-4.1(a)).
1. 2017 WFD Permit.
JMT requests an adjudicatory hearing to challenge the DEP's issuance of
the 2017 WFD Permit, as well as the 2019 Modification Permit. JMT argues
that both applications were "barren" of evidence that JMT's "navigation and
access will not be negatively impacted" by Jibsail's construction of the dock
extension.
The DEP denied JMT's request for a hearing on the 2017 WFD Permit as
untimely. There is no dispute that the record is void of evidence of JMT filing
a timely written request for an adjudicatory hearing challenging the 2017 WFD
A-2570-22 10 Permit. We are satisfied the DEP correctly determined that JMT's request for
an adjudicatory hearing as to the 2017 WFD Permit was time barred by N.J.A.C.
7:7-28.1(b) and therefore was properly and mandatorily denied.
2. 2019 Modification Permit.
We turn next to JMT's challenge to the DEP's denial of an adjudicatory
hearing and decision regarding the merits of the 2019 Modification Permit.
JMT, as a third-party objector, does not have an automatic right to an
adjudicatory hearing. To be entitled to an adjudicatory hearing under the Act, a
third-party must show "a particularized property interest sufficient to require a
hearing on [either] constitutional or statutory grounds." N.J.S.A. 52:14B-3.2.
Neither the Waterfront Development Act nor the CZM Rules provide
third-party objectors with an automatic statutory right to an adjudicatory hearing
to challenge a permit decision. In re Riverview Dev., 411 N.J. Super. at 427;
see also N.J.S.A. 12:5-1 to -11; N.J.A.C. 7:7-28.l(e); N.J.S.A. 52:14B-3.3. JMT
does not identify another statutory provision granting it a right to a hearing. We
are satisfied that the DEP did not err in concluding that JMT failed to identify a
statutory right to an adjudicatory hearing.
If a party cannot identify an express statutory right to a hearing, then the
question becomes whether a party has a "particularized property interest"
A-2570-22 11 sufficient to require a hearing on constitutional grounds. N.J.S.A. 52:14B-3.2.
JMT contends that Jibsail's approved "dock extension angles in a westerly
direction, thereby cutting across [JMT's] access to the navigable channel of
Barnegat Bay," which creates a "navigational hazard" uniquely impacting JMT.
JMT contends its "riparian right to freely navigate to and from the channel
without obstruction" has been infringed upon by Jibsail's extended dock. JMT
further argues that the dock has created a safety hazard not only to JMT when
"maneuver[ing] its watercrafts in or out of its waterfront facilities" but to other
"boaters, kayakers, and paddle boaters . . . ." The DEP determined that JMT's
general "[n]avigational interests . . . do not rise to a particularized property
interest sufficient to create a right to an adjudicatory hearing." We discern no
basis to conclude that the DEP's determination in this regard was arbitrary,
capricious, or unreasonable.
The right to an adjudicatory hearing "turn[s] upon the relative strength of
the property interests" of the third-party. In re Riverview Dev., 411 N.J. Super.
at 425. As the Court in In re Fresh Wetlands Statewide Gen. Permits noted, our
analysis must begin by "identify[ing] the nature of the property interest at stake."
185 N.J. 452, 464 (2006). "The more general and attenuated [the] property
A-2570-22 12 interest is, the less likely that it will be sufficient to trigger a hearing under the
statute." In re Riverview Dev., 411 N.J. Super. at 425-26.
As we addressed in our prior decision involving the parties' first appeal
pertaining to Jibsail's dock and the grant of a tidelands license to Jibsail, In re
P.T. Jibsail Fam. Ltd. P'ship, No. A-0699-22 (App. Div. May 8, 2024), Barnegat
Bay is considered the tidelands area, which is owned by the State. The State
issued licenses to both Jibsail and JMT, allowing them to make reasonable use
of the water surrounding their property. Panetta v. Equity One, Inc., 190 N.J.
307, 318 (2007). Thus, as we explained, a "licensee's riparian right to use
adjacent water . . . is no stronger on water outside of the license box than the
riparian right of any other member of the public and is likewise subject to the
influence of neighboring structures . . . ." In re P.T. Jibsail, slip. op. at 20.
Additionally, JMT argued that Jibsail's dock extension was dangerous to
other area residents and boaters. This argument undercuts JMT's assertion of a
particularized property interest; rather, it supports the DEP's conclusion that
JMT has only shown a generalized property interest. Further, at the time of
Jibsail's 2017 application, JMT submitted letters expressing their concerns to
the DEP, and other neighboring property owners expressed similar concerns.
A-2570-22 13 The DEP considered these concerns before issuing the 2017 WFD Permit to
Jibsail.
As we explained in Spalt v. N.J. Dept. of Env't Prot., 237 N.J. Super. 206,
212 (App. Div. 1989), "[f]ear of damage to one's recreational interest or
generalized property rights with other property owners is insufficient to
demonstrate a particularized property right or other special interest." Moreover,
"[f]ear of damage to one's . . . generalized property rights shared with other
property owners is insufficient to demonstrate a particularized property right[.]"
In re AMICO/Tunnel Carwash, 371 N.J. Super. 199, 211 (2004). Thus, the
DEP's determination that JMT failed to establish a particularized property right
entitling it to an adjudicatory hearing is supported by the record and is not an
arbitrary, capricious, or unreasonable determination.
B. Issuance of the 2019 Permit Modification.
JMT also challenges the merits of the DEP's grant of Jibsail's 2019 Permit
Modification. On December 18, 2024, JMT filed a motion seeking to amend its
notice of appeal nunc pro tunc to clarify its intent to challenge the merits of the
DEP's issuance of the 2019 Modification Permit to Jibsail. Jibsail filed
opposition, claiming the relief sought is untimely and prejudicial. The DEP does
not oppose JMT's application.
A-2570-22 14 Generally, a party is limited to appeal from the order identified in its
notice of appeal. See R. 2:5-1(f)(2)(ii); Sikes v. Twp. of Rockaway, 269 N.J.
Super. 463, 465-66 (App. Div. 1994). We, however, have discretion to allow a
party to address an issue not directly identified in its notice of appeal. JMT's
case information statement (CIS) identifies its challenge to the merits of the
DEP's final decision granting the 2019 Modification Permit. See Synnex Corp.
v. ADT Sec. Servs. Inc., 394 N.J. Super. 577, 588 (App. Div. 2007) (holding
that an issue identified on appellant's CIS but not on notice of appeal is properly
before the appellate court); see also Fusco v. Bd. of Educ. of Newark, 349 N.J.
Super. 455, 461 (App. Div. 2002) (finding that an order included in CIS may be
addressed on appeal even though not listed in notice of appeal). Moreover,
Jibsail addresses in its merits brief JMT's substantive challenges to the DEP's
issuance of Jibsail's 2019 Modification Permit. Thus, we discern no prejudice
in granting JMT's motion to amend its notice of appeal, and thus, will consider
the arguments of the parties challenging the merits of the 2019 Modification
JMT contends the DEP's issuance of the 2019 Modification Permit was
arbitrary, capricious, and unreasonable and not supported by the credible
evidence because Jibsail failed to demonstrate (1) a "need" for the modification
A-2570-22 15 permit, and (2) that its dock would not hinder navigation or access to adjacent
waters. We are satisfied the DEP's decision to grant Jibsail the 2019
Modification Permit was not unreasonable, arbitrary or capricious, and is well-
grounded in the substantial evidence in the record.
The DEP, the agency with expertise and authority to regulate development
on "any waterfront upon any navigable water," approved Jibsail's 2019
Modification Permit "because the alternative solution of requiring Jibsail to
move and resecure its dock to bring it" in compliance with the approved 2017
WFD Permit would cause far more environmental disturbances to the subaquatic
vegetation habitat. JMT fails to point to any substantive evidence in the record
to the contrary.
The DEP regulates development consistent with the CZM Rules, N.J.A.C.
7:7-1.1 to -29.10, which includes the Recreational Docks and Piers Rule (Docks
Rule), N.J.A.C. 7:7-12.5(a), which prohibits development that would hinder
navigation or access to adjacent moorings, water areas, docks and piers, and the
Submerged Vegetation Habitat (SVH) Rule, N.J.A.C. 7:7-9.6, which governs
the placement of docks and mooring area in a submerged aquatic vegetation
habitat. In evaluating permit applications, the DEP endeavors to protect "the
A-2570-22 16 coastal ecosystem, an area rich in natural features . . . ." Tumino v. Long Beach
Tp., 319 N.J. Super. 514, 523 (App. Div. 1999).
The record supports the DEP's decision to approve the de minimis
modification by granting the 2019 Modification Permit as more consistent with
these long-standing regulations. The Docks Rule requires an applicant to
demonstrate that the proposed construction will not interfere with navigation.
N.J.A.C. 7:7-12.5(b)(9). While JMT contends that the 2019 Modification
Permit interferes with navigation, and therefore, violates the CZM Rules,
following its issuance of the permit violation and review of the matter, the DEP
found that the de minimis extension of Jibsail's dock caused no such
interference. JMT provided no expert testimony to support its contrary
contention or refute the opinion of Jibsail's Professional Engineer.
Moreover, the U.S. Army Corps of Engineers reviewed the application
and did not identify any issues related to navigability or access. It is also worth
noting that the 1.7 foot mislocation of Jibsail's dock is to the south—farther
away from JMT's property. While we are not reviewing the original 2017 WFD
Permit, it is also worth noting that JMT fails to mention that the DEP required
Jibsail to revise its original construction plan and reduce the length of the dock
from 185 feet to 167.3 feet.
A-2570-22 17 According to the SVH Rule, docks must extend into water that is at least
"four feet at mean low water . . . where the boats will be moored" in depth to
protect the habitat. N.J.A.C. 7:7-9.6(b)(6)(vi). As the DEP points out,
"sufficient water depths protect[] SAV," and the DEP determined that granting
the 2019 Modification Permit complied with the SVH Rule. The DEP further
concluded that the "needs portion" of the Docks Rule was satisfied because the
dock extension not only complied with the SAV Rule but also the de minimis
extension did not "result in new or additional impacts to any special area."
N.J.A.C. 7:7-27.5(d). Thus, the DEP concluded that a "technical modification"
was a more appropriate and less disruptive resolution to the deviation and would
"not result in new or additional impacts to any special area." N.J.A.C. 7:7-
27.5(d). Based upon our review of the record, those conclusions are reasonable,
are not arbitrary or capricious, and are supported by credible evidence.
For all these reasons, we affirm the DEP's decision denying JMT an
adjudicatory hearing on the 2017 WFD Permit and the 2019 Modification
Permit. We also affirm the final agency determination granting Jibsail's 2019
Modification Permit. Any remaining arguments raised by JMT are without
sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-2570-22 18