NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon an y court."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-3173-16T3
IN THE MATTER OF LACEY TOWNSHIP CAFRA PERMIT. ___________________________
Argued December 10, 2018 – Decided April 26, 2019
Before Judges Sabatino and Haas.
On appeal from the New Jersey Department of Environmental Protection.
Aaron Kleinbaum argued the cause for appellant Save Barnegat Bay (Eastern Environmental Law Center, attorneys; Aaron Kleinbaum, of counsel; Raghu Murthy, on the briefs).
Lauren R. Staiger argued the cause for respondent Township of Lacey (Gilmore & Monahan, PA, attorneys; Lauren R. Staiger, on the brief).
Jason Brandon Kane, Deputy Attorney General, argued the cause for respondent New Jersey Department of Environmental Protection (Gurbir S. Grewal, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Jason Brandon Kane, on the brief).
PER CURIAM Appellant Save Barnegat Bay appeals from a decision by the Department
of Environmental Protection (DEP) to issue a Coastal Area Facility Review Act,
N.J.S.A. 13:19-1 to -21, (CAFRA) permit to the Township of Lacey (Township)
to restore and reconstruct Bayfront Park, a Township-owned site that was
destroyed by Superstorm Sandy. We affirm.
I.
Bayfront Park (Park) is located on Beach Boulevard in the Township. The
Park covers approximately 5.5 acres, and is bordered by Barnegat Bay (Bay) to
the east, Forked River to the north, a private beach to the south, and private
residential properties to the west. Prior to Superstorm Sandy making landfall in
New Jersey on October 29, 2012, the Park was mainly sand. As a result of
frequent high-wave action on the shore of the Park, the natural sandy beach
eroded over time, sometimes at the rate of three feet per year. In an effort to
stem the tide of this erosion, the Township installed "rip-rap"1 along the
perimeter of the shoreline. Residents wishing to access the Bay were able to do
so by walking over the rip-rap, or by simply entering the water at either end of
the rip-rap.
1 "Rip-rap" is a shore protection structure composed of loose stones and boulders. A-3173-16T3 2 Superstorm Sandy dislodged the rip-rap, destroyed a small gazebo, and
caused other significant damage to the Park. As a result, the Township applied
for, and received, a $1,239,196.75 Community Development Block Grant for
Disaster Relief from the New Jersey Economic Development Authority. With
these funds, the Township planned to restore the Park so it could again be
enjoyed by the public. In order to protect the beach in the future, the Township
decided to build a "gabion" 2 wall along the shoreline, and add stormwater
management basins at the site. The Township also sought to provide amenities
to the public by providing a gazebo, a walking path, a playground area, and an
observation deck overlooking the Bay.3
In November 2015, the Township applied for a CAFRA Individual Permit
for permission to take these shore protection measures and make the
improvements described above. During the thirty-day public comment period
that followed, DEP received nine written comments, including a nine-page letter
2 A "gabion" is a "shore protection structure that is comprised of wire mesh basket(s) or mattress(es) filled with rock and used in multiples as a structural unit installed to withstand the forces of waves and currents." N.J.A.C. 7:7 -1.5. 3 The Township also proposed providing twenty-six paved parking spaces for Park visitors.
A-3173-16T3 3 from appellant.4 Appellant primarily objected to the installation of the gabion
wall in lieu of a "living shoreline" that would not include any structural measu res
to prevent the erosion of the shoreline. Appellant also noted that the beach
provided habitat for terrapins, birds, and other species. After submitting this
letter, appellant took no further action regarding the Township's permit
application while DEP was reviewing it.
Another commenter, Dr. John Wnek, the Research Coordinator of Project
Terrapin at the Marine Academy of Technology and Environmental Science,
Ocean County Vocational Technical School, recommended that the Township
include a "turtle garden"5 at the site to enhance the nesting habitat for terrapins,
and plant sand-tolerant, native vegetation to stabilize the nesting area and
protect any terrapin hatchlings. Unlike appellant, Dr. Wnek continued to work
with the Township and DEP as the application proceeded through the review
process.
4 Appellant attached two photographs of a diamondback terrapin to the letter. 5 A "turtle garden" is a patch of sandy soil above the high water line that provides a nesting habitat for diamondback terrapins.
A-3173-16T3 4 Other commenters included homeowners who lived near the Park, as well
as a few other area residents.6 One homeowner voiced her concerns with the
proposed development in front of adjacent homes, but emphasized that "the
recreational plan for the northern section of the [B]ayfront [P]ark is well -
planned and will be an asset to the community." This individual was the only
commenter besides Dr. Wnek to express continued interest in the project during
the time between the expiration of the public comment period and DEP's final
decision on the permit.
At the end of the public comment period, DEP issued a deficiency letter
to the Township, citing the application's shortcomings in demonstrating
compliance with some CAFRA and stormwater regulations. On April 15, 2016,
the Township submitted a revised application addressing each of DEP's
concerns.
In the ninety days 7 that followed, DEP staff consulted with Dr. Wnek, the
interested Township resident, and the Township's engineering consultants. As
6 The Sierra Club of Ocean County submitted a short e-mail to DEP, and noted that a gabion wall might "cut off" the terrapins' access to the Park beach. 7 Upon submission of a revised CAFRA individual permit application after public comments are received, DEP has ninety days to issue a decision on the revised application. N.J.A.C. 7:7-26.6(d). A-3173-16T3 5 a result, the Township agreed to build a turtle garden in the Park, with thirty-six
"turtle transit tunnels" along the entire length of the gabion wall. These tunnels
would permit the terrapins to continue to access and nest along the beach and
waterfront.
On July 13, 2016, DEP staff issued a thorough written report,
recommending approval of the Township's permit application. For the reasons
set forth in this report, the staff found that the project complied with all of DEP's
applicable regulations, including those governing coastal engineering, N.J.A.C.
7:7-15.11; coastal high hazard areas, N.J.A.C. 7:7-9.18; beaches, N.J.A.C. 7:7-
9.22; riparian zones, N.J.A.C. 7:7-9.26; endangered or threatened wildlife or
vegetation species habitat, N.J.A.C. 7:7-9.36; and critical wildlife habitats,
N.J.A.C. 7:7-9.37. On that same date, DEP approved the permit.
N.J.A.C. 7:7-26.6(g) states that DEP "shall provide notice of the decision
on an application for authorization under a . . . CAFRA individual permit in the
DEP Bulletin[8 (Bulletin)] and to any person who specifically requested notice
of the decision on a particular application." Unfortunately, DEP did not publish
notice of its approval of the Township's application in the Bulletin until February
8 DEP publishes the Bulletin on a semi-monthly basis and it contains a list of environmental and construction permit applications recently filed or acted upon by DEP. A-3173-16T3 6 15, 2017. DEP states in its appellate brief that the delay in publishing the notice
was due to an inadvertent oversight.
Although there was a delay in publishing this notice, the permit
specifically stated that "any person who is aggrieved by this decision or any of
the conditions of this permit may request a hearing within 30 days after notice
of the decision is published in the . . . Bulletin." In spite of this, appellant did
not request a hearing. Although it thereafter filed a timely notice of appeal,
appellant also did not seek a stay of the construction of the shoreline and terrapin
protection project, or the Park amenities, from either DEP or this court. Thus,
the entire project has already been completed, and the Park reopened to the
public in August 2017.
II.
On appeal, appellant argues that DEP improperly granted the permit
because: (1) it should have required the Township to employ a "non-structural"
means of protecting the shoreline; (2) the Township's project would "devastate
a diamondback terrapin nesting habitat"; (3) the project threatened the habitat
of other endangered wildlife; (4) DEP violated the public trust doctrine; and (5)
DEP deprived appellant of "due process" by delaying the publication of the
permit's approval in the Bulletin. All of these contentions lack merit.
A-3173-16T3 7 "Established precedents guide our task on appeal. Our scope of review of
an administrative agency's final determination is limited." Capital Health Sys.
v. N.J. Dep't of Banking & Ins., 445 N.J. Super. 522, 535 (App. Div. 2016),
(citing In re Stallworth, 208 N.J. 182, 194 (2011)). We decide only whether the
findings made could reasonably have been reached on sufficient credible
evidence present in the record, considering the proofs as a whole. In re Taylor,
158 N.J. 644, 656 (1999). We will not upset the ultimate determination of an
agency unless it is shown it was arbitrary, capricious, or unreasonable, or that it
violated legislative policies expressed or implied in the statutes governing the
agency. Seigel v. N.J. Dep't of Envtl. Prot., 395 N.J. Super. 604, 613 (App. Div.
2007).
"In reviewing agency action, the fundamental consideration is that a court
may not substitute its judgment for the expertise of an agency 'so long as that
action is statutorily authorized and not otherwise defective because arbitrary or
unreasonable.'" Williams v. Dep't of Human Servs., 116 N.J. 102, 107 (1989)
(quoting Dougherty v. Dep't of Human Servs., 91 N.J. 1, 12 (1982)). Thus, our
appellate review does not encompass whether the agency's decision was wise,
only whether it was lawful.
"[J]udicial deference to administrative agencies stems from the recognition that agencies have the
A-3173-16T3 8 specialized expertise necessary to . . . deal[] with technical matters and are 'particularly well equipped to read and understand the massive documents and to evaluate the factual and technical issues . . . .'" "'[W]here there is substantial evidence in the record to support more than one regulatory conclusion, it is the agency's choice which governs.'" . . . The court "may not vacate an agency determination because of doubts as to its wisdom or because the record may support more than one result," but is "obliged to give due deference to the view of those charged with the responsibility of implementing legislative programs."
[In re Adoption of Amendments to Water Quality Management Plans, 435 N.J. Super. 571, 583-84 (App. Div. 2014) (alterations in original) (citations omitted).]
Where an agency's expertise is a factor, we will defer to that expertise,
particularly in cases involving technical matters within the agency's special
competence. In re Freshwater Wetlands Prot. Act Rules, 180 N.J. 478, 489
(2004). This deference is even stronger when the agency, like DEP, "has been
delegated discretion to determine the specialized and technical procedures for
its tasks." City of Newark v. Natural Res. Council, 82 N.J. 530, 540 (1980).
Moreover,
[w]hen an administrative agency interprets and applies a statute it is charged with administering in a manner that is reasonable, not arbitrary or capricious, and not contrary to the evident purpose of the statute, that interpretation should be upheld, irrespective of how the forum court would interpret the same statute in the absence of regulatory history.
A-3173-16T3 9 [Reck v. Dir., Div. of Taxation, 345 N.J. Super. 443, 448 (App. Div. 2001) (quoting Blecker v. State, 323 N.J. Super. 434, 442 (App. Div. 1999)), aff’d o.b., 175 N.J. 54 (2002).]
Applying these principles, we discern no reason to disturb DEP's decision
to grant the permit to the Township.
A.
Contrary to appellant's first contention, DEP did not violate its Coastal
Engineering Rule, N.J.A.C. 7:7-15.11, by permitting the Township to use a
gabion wall to protect the shoreline. As appellant correctly points out, this
regulation establishes a hierarchy in shore protection and storm damage
reduction projects. In this hierarchy, DEP prefers that the permit applicant first
consider the use of non-structural means of protecting the shore. N.J.A.C. 7:7-
15.11(b)(1).
However, if non-structural measures are "not feasible or practicable[,]"
the agency's next preference is that the permittee employ a "hybrid" combination
of structural and non-structural elements, such as the gabion wall and vegetation
A-3173-16T3 10 measures DEP approved in the present case. N.J.A.C. 7:7-15.11(b)(2). 9 In
evaluating whether hybrid shore protection measures may be used instead of
entirely non-structural measures, DEP evaluates "the type of waterway on which
the site is located, the distance to the navigation channel, the width of waterway,
water depth at the toe of bank, the bank orientation, shoreline slope, fetch, [10]
erosion rate, the amount of sunlight the site receives, substrate composition, and
presence of shellfish habitat." Ibid.
In its revised application, the Township's engineers explained that
[i]n order to best protect the park with the least amount of disturbance area, the low gabion wall was selected. This methodology provides the best means of wave attenuation, especially towards the narrow, southerly end of the park, closest to the houses. An earthen berm would need to be elevated above the Flood Hazard Area Elevation to be effective. A berm built below the Flood Hazard Elevation would erode in flood events. A berm built above the Flood Hazard Elevation would have roughly a 65 foot wide footprint and be aesthetically unpleasing. A 25 foot wide berm would be required with 5:1 side slopes resulting in a 65 foot footprint. It would also encroach upon the residential properties adjacent to the site since the area
9 If a hybrid combination is neither feasible or practicable, the permittee may exclusively use structural measures to protect the shoreline. N.J.A.C. 7:7 - 15.11(b)(3). 10 A "fetch" is the "distance across water that wind blows unimpeded. The greater the fetch, the greater the wind and wave forces." Hatt 65, LLC v. Kreitzberg, 658 F.3d 1243, 1245 n.3 (11th Cir. 2011). A-3173-16T3 11 in between the property lines and edge of rip-rap varies from 25 feet to 60 feet. Also, there is no berm to tie into on adjacent properties which would cause erosion and washouts at the ends of the berm.
After considering the Township's expert's findings, DEP reasonably
concluded that the non-structural measures, such as the living shoreline now
advocated by appellant, were neither feasible nor practicable under N.J.A.C.
7:7-15.11(b)(2). In its comprehensive report, DEP staff noted that the Park was
"experiencing significant erosion." Although the staff recognized that
"vegetative methods of shoreline stabilization are the preferred methods over
structural solutions" under N.J.A.C. 7:7-15.11(b)(1), a hybrid solution was
necessary because "[b]ased on information submitted by the [Township's
engineers], given the limited beach width, open fetch from the west and
recurrent tidal erosional forces, this area is a high energy zone and is subject to
highly erosive forces." Moreover, DEP staff found that the Park "has no
developed dune system and/or any form of structural protective structure. The
lack of protection has led to flooding and damage in past storm events."
Based upon the uncontradicted expert engineering evidence submitted by
the Township, and DEP's recognized expertise in this esoteric area, we discern
no basis for disturbing DEP's conclusion that the use of solely non-structural
A-3173-16T3 12 shore protection measures was not feasible, and that the hybrid methods chosen
by the Township were both appropriate and necessary.
B.
Appellant's argument that the project would "devastate" a terrapin nesting
habitat also lacks merit. Pursuant to N.J.A.C. 7:7-9.37(b),
development that would directly or through secondary impacts on the relevant site or in the surrounding region adversely affect critical wildlife habitats is discouraged,[11] unless: (1) [m]inimal feasible interference with the habitat can be demonstrated; (2) [t]here is no prudent or feasible alternative location for the development; and (3) [t]he proposal includes appropriate mitigation measures.
Here, the Township's project clearly includes appropriate mitigation measures
to offset any interference with the terrapin habitat at the Park.
By working with Dr. Wnek, the Township was able to modify the gabion
wall design to provide the terrapins better access to nesting sites by adding
thirty-six "turtle transit tunnels" through the wall. These tunnels enable the
terrapins to travel from the shoreline to the Park. The Township also included
11 "Discouraged" is defined in N.J.A.C. 7:7-1.5 to mean that the proposed project is "likely to be rejected or denied" unless "mitigating or compensating measures can be taken so that there is a net gain in quality and quantity of the coastal resource of concern" and the proposed use is in the public interest.
A-3173-16T3 13 a "turtle garden" away from the playground and other amenities for the terrapins.
To further protect this habitat, DEP imposed seasonal restrictions on any work
involving construction equipment along the waterfront, and required the
Township to maintain the vegetation in the turtle garden. 12 In addition, Dr.
Wnek agreed to consult with the Township throughout the completion of the
project.
With these modifications to the Township's original proposal, we are
satisfied that DEP properly found that the requirements of N.J.A.C. 7:7-9.37
were met. Therefore, we reject appellant's contrary contention.
C.
Appellant next claims that DEP violated the Endangered or Threatened
Species Habitat regulation, N.J.A.C. 7:7-9.36, by allowing development in a
12 On October 15, 2018, we granted appellant's motion to supplement the record on appeal to include information that the Township had mowed some of the vegetation at the Park after June 1, 2018 in violation of the seasonal work restrictions set forth in its permit. On July 26, 2018, DEP issued a notice of violation to the Township for violating this condition. This post-permit violation is not relevant to the present appeal, which involves the question of whether DEP properly issued the permit to restore and protect the Park. DEP addressed the violation appellant brought to our attention and, if appellant was dissatisfied with that resolution, it could have taken action to challenge it. Appellant did not do so. A-3173-16T3 14 habitat "essential for survival" of six endangered and threatened bird species.
We disagree.
Pursuant to N.J.A.C. 7:7-9.36,
[d]evelopment of endangered or threatened wildlife or plant species habitat is prohibited unless it can be demonstrated, through an endangered or threatened wildlife or plant species impact assessment, . . . that endangered or threatened wildlife or plant species habitat would not directly or through secondary impacts on the relevant site or in the surrounding area be adversely affected.
During its review of the Township's application, DEP staff determined that the
State's Landscape Maps13 identified six endangered and threatened species
which may live in Ocean County, including the Bald Eagle, Northern Harrier,
Osprey, Black Skimmer, Roseate Tern, and Black-Crowned Night Heron.
However, after reviewing these maps, and documentation submitted by
the Township, DEP staff found that the "proposed work locations do not feature
suitable State- or Federally-listed threatened or endangered species habitat." In
addition, the staff concluded that "no adverse impact to suitable open water
habitat that occurs for protected avian species foraging along Barnegat Bay is
13 The New Jersey Division of Fish and Wildlife's Endangered and Nongame Species Program is responsible for documenting imperiled species and their habitats in New Jersey by preparing these Landscape Maps. A-3173-16T3 15 anticipated through the proposed project." DEP staff's findings are fully
supported by the record developed during the permit review process. Therefore,
we discern no principled basis on this record for disturbing DEP's determination
that the application complied with N.J.A.C. 7:7-9.36.
D.
We also disagree with appellant's contention that DEP violated the "public
trust doctrine" by permitting the Township to "cut off" the public's access to the
Bay by building a gabion wall to protect the Park's shoreline from erosion. The
public trust doctrine "derives from the ancient principle of English law that land
covered by tidal waters belonged to the sovereign, but for the common use of
all the people." Borough of Neptune City v. Borough of Avon-By-The-Sea, 61
N.J. 296, 303 (1972); see also Matthews v. Bay Head Improvement Ass'n, 95
N.J. 306, 312 (1984) (noting that "[t]he public trust doctrine acknowledges that
the ownership, dominion and sovereignty over land flowed by tidal waters,
which extend to the mean high water mark, is vested in the State in trust fo r the
people").
DEP codified these principles in N.J.A.C. 7:7-16.9(a) which, in pertinent
part, states:
[p]ublic access to the waterfront is the ability of the public to pass physically and visually to, from, and
A-3173-16T3 16 along tidal waterways and their shores and to use such shores, waterfronts and waters for activities such as navigation, fishing, and recreational activities including, but not limited to, swimming, sunbathing, surfing, sport diving, bird watching, walking, and boating.
However, "no public access is required if there is no existing public access
onsite[,]" but "[a]ny existing public access shall be maintained or equivalent
onsite public access shall be provided." N.J.A.C. 7:7-16.9(k)(3)(i).
Contrary to appellant's contention, DEP's approval of the gabion wall did
not violate the public trust doctrine or N.J.A.C. 7:7-16.9. Before Superstorm
Sandy destroyed the Park, it was mainly sand, with rip-rap imperfectly
protecting the shore. The Township did not fund any specific access route to
the Bay, but residents could walk over the rip-rap to get into the water.
The construction of the gabion wall did not deprive the public of access
to the Bay any more than the rip-rap previously had. Indeed, the public can walk
on top of the gabion wall along the shoreline, and step off of it into the Bay at
any point because the top of the wall is no more than two feet above the surface
of the water. Because the public has the same access to the Bay that it had before
A-3173-16T3 17 Superstorm Sandy,14 we conclude that DEP fully complied with the public trust
regulation, N.J.A.C. 7:7-16.9.
It is also important to note that the restored Park now provides increased
public access to the Bay through the addition of a walking path, recreational
activities, a playground, and a small parking lot. The shoreline is also better
protected. Thus, the present factual circumstances are plainly distinguishable
from the cases appellant relies upon to claim that the construction of a gabion
wall, which citizens can walk along as they access the Bay, violates the public
trust doctrine. See Van Ness v. Borough of Deal, 78 N.J. 174, 180 (1978)
(barring a municipality from roping off an area of beach in front of a casino and
reserving it for the use of casino members only); Borough of Neptune City, 61
N.J. at 298, 310 (striking a financial barrier to public water access); Matthews,
238 N.J. Super. at 312, 332 (voiding a regulation prohibiting public water
access).
14 In addition, the public continues to have the option, as it did while there was only rip-rap at the shoreline, of accessing the Bay by walking around the wall and rip-rap to the northern and southern boundaries of the Park to enter the water. A-3173-16T3 18 E.
Finally, appellant argues that DEP "violated its constitutional due process
obligations" by failing to publish notice of its July 13, 2016 approval of the
Township's permit until February 15, 2017, when it appeared in the Bulletin.
Again, we disagree.
The record does not disclose a specific explanation for the delayed
publication of the approval of the permit, although DEP has stated that it was
caused by an inadvertent oversight. 15 Regardless of the reason for the delay,
however, it is clear that appellant suffered absolutely no prejudice as a result of
it.
DEP published notice of the filing of the Township's application in the
Bulletin, and thereafter provided a thirty-day public comment period. During
the comment period, appellant submitted a letter in opposition to the proposed
project. Unlike several other commenters, appellant then took no further action
prior to the permit's approval. When it was issued, the permit specifically stated
that "any person who is aggrieved by this decision or any of the conditions of
15 In its appellate brief, appellant speculates that DEP may have delayed publishing notice of the approval of the permit so the public would lose interest in it, thereby ensuring there would be less opposition to any d ecision to grant the permit. However, nothing in the record supports this assertion.
A-3173-16T3 19 this permit may request a hearing within 30 days after notice of the decision is
published in the DEP Bulletin." Thus, appellant had thirty days after the
publication of the February 15, 2017 Bulletin to request a hearing. It did not do
so.16
Because DEP provided notice to appellant of the filing of the application,
allowed appellant to submit written comments addressing the application, and
afforded appellant the right to request a hearing, DEP provided appellant with
all of the process due it under the circumstances of this case.
F.
In sum, we conclude that DEP's decision to approve the Township's
application for a CAFRA permit to restore and protect the Park for the public's
use was neither arbitrary, capricious, or unreasonable. DEP followed all of the
governing regulatory policies, and its findings supporting its approval of the
project are fully supported by the administrative record.
Affirmed.
16 As previously noted, appellant also had the opportunity to seek a stay of construction pending appeal from DEP and this court. However, it did not pursue this remedy. A-3173-16T3 20