NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3381-17T4
IN THE MATTER OF RICARDO MORA AND KELLI KENNY, WATERFRONT DEVELOPMENT PERMIT NO. 1517-12-0005.1 WFD 160001, CHALLENGED BY JAMES BODENHEIMER. _______________________________
Argued September 25, 2019 - Decided October 30, 2019
Before Judges Koblitz, Gooden Brown, and Mawla.
On appeal from the New Jersey Department of Environmental Protection, Permit No. 1517-12- 0005.1 WFD 160001.
Neil Yoskin argued the cause for appellant James Bodenheimer (Cullen and Dykman, LLP, attorneys; Neil Yoskin, of counsel and on the briefs).
Kevin J. Coakley argued the cause for respondents Ricardo Mora and Kelli Kenny (Connell Foley LLP, attorneys; Kevin J. Coakley, on the brief).
David Andrew Tuason, Deputy Attorney General, argued the cause for respondent New Jersey Department of Environmental Protection (Gurbir S. Grewal, Attorney General, attorney; Jason W. Rockwell, Assistant Attorney General, of counsel; David Andrew Tuason, on the brief).
Spector Gadon & Rosen, PC, attorneys for respondents Paul Rosen, Wendy Rosen, and the Wendy Rosen Trust (Johan Ashrafzadeh-Kian, on the brief).
PER CURIAM
James Bodenheimer appeals from the January 10, 2018 final agency
decision of the Department of Environmental Protection (DEP), denying his
December 1, 2016 request for an adjudicatory hearing to challenge a permit
issued to his neighbors, Ricardo Mora and Kelli Kenny (Mora/Kenny), under
the Waterfront Development Act (WDA), N.J.S.A. 12:5-3, and implementing
Coastal Zone Management Rules (CZM Rules), N.J.A.C. 7:7. The permit,
issued on October 12, 2016, approved the construction of a four-foot by 267-
foot fixed dock on Mora/Kenny's adjacent property located on Long Beach
Boulevard in Long Beach Township.
On appeal, Bodenheimer raises the following points for our consideration:
I.1 [BODENHEIMER] HAS STANDING TO BRING AN ADMINISTRATIVE APPEAL, AND THE DEPARTMENT INCORRECTLY DENIED HIS REQUEST FOR A HEARING AND A STAY PENDING THIS APPEAL.
1 We have eliminated the point heading describing the standard of review and renumbered the remaining points accordingly. A-3381-17T4 2 II. THE ISSUANCE OF THE PERMIT . . . WAS IN DIRECT VIOLATION OF THE DEPARTMENT'S OWN REGULATIONS DESIGNED TO PROTECT THE ENVIRONMENT AND MUST BE REVERSED.
A. THE DEPARTMENT'S SHELLFISH HABITAT RULE REQUIRES THAT THE LOCATION AND SIZE OF THE PROPOSED DOCK BE ADJUSTED TO MINIMIZE THE AREA OF PROTECTED SHELLFISH HABITAT.
B. THE DEPARTMENT'S SUBMERGED VEGETATION HABITAT RULE REQUIRES THAT THE LOCATION AND SIZE OF THE DOCK BE ADJUSTED TO MINIMIZE THE TOTAL AREA OF PROTECTED HABITAT COVERED BY THE STRUCTURE.
C. THERE IS NO DE MINIMIS EXCEPTION FROM THE REQUIREMENT THAT THE SIZE OF THE PROPOSED DOCK BE MINIMIZED TO PROTECT THE MARINE ENVIRONMENT.
We affirm.
We glean the following facts from the record. Bodenheimer owns
property located at lot 28, and Mora/Kenny own the adjacent lot immediately
north of Bodenheimer's at lot 30. Both lots front Barnegat Bay, but
Mora/Kenny's property has 125 feet of frontage while Bodenheimer's frontage
is significantly narrower. In November 2015, Mora/Kenny submitted
A-3381-17T4 3 applications to DEP for a waterfront development (WD) permit and a riparian
license to construct a four-foot by 289-foot fixed dock on their property,
projecting into Barnegat Bay. On December 3 and 12, 2015, Bodenheimer
submitted letters to DEP, objecting to "the location and the length" of
Mora/Kenny's proposed dock.
In his letters, Bodenheimer explained that he did not object to a prior
permit, granted in 2012 to Mora/Kenny's predecessor in interest, because the
permit approved a 165-foot dock "located approximately [sixty] feet north" of
their shared boundary. However, according to Bodenheimer, Mora/Kenny's
application located the dock "[sixteen] feet [n]orth" of their shared property line,
which would only provide "[thirty-two] feet" of distance between Mora/Kenny's
proposed dock and a dock Bodenheimer anticipated constructing on his property
in the future, rendering navigation "in close proximity" to the two docks
"difficult and possibly unsafe." Additionally, Bodenheimer asserted that
Mora/Kenny's 289-foot proposed dock would "block the [n]orth/[s]outh
channel" used by "boat owners in the neighborhood" to access "the inter-coastal
waterway."
A-3381-17T4 4 Bodenheimer's southerly neighbors, Paul and Wendy Rosen, owners of lot
26,2 similarly objected to the location and length of Mora/Kenny's proposed
dock, asserting that it would "exceed by over [forty] or [sixty] feet any dock on
the coastal area of Barnegat Bay," including theirs. In letters to DEP dated
November 25 and December 8, 2015, the Rosens objected to "the proposed
dock's excessive length, hindrance of navigation or access to adjacent water
areas, (which would violate N.J.A.C. 7:7-12.5), hindrance of existing
navigational channels (which implicates N.J.A.C. 7:7-9.7), and the general loss
of use and enjoyment that would be suffered by the inhabitants." They requested
"a hearing to prevent the construction" of the proposed dock, and "as a nearby
property owner within the class of persons enumerated in N.J.A.C. 7:7-
24.3(b)(6), . . . notice of any revision, amendment, or other communication
between the applicants and [DEP] in connection with [the] applications."
On February 10, 2016, DEP approved the application and issued a WD
permit to Mora/Kenny, subject to certain pre-construction conditions. The
permit allowed "any person . . . aggrieved by [the] decision" to "request a
hearing within [thirty] days" after publication of the decision "in the DEP
2 The owners of lot 26 are Paul Rosen, Wendy Rosen, and the Wendy Rosen Trust. A-3381-17T4 5 Bulletin." In a March 14, 2016 e-mail, the Rosens' attorney, Johan Kian,
communicated with Eric M. Virostek, DEP's Environmental Specialist in the
Division of Land Use Regulation, requesting that DEP "reconsider its decision
short of [the Rosens] filing a request for an adjudicative hearing." To support
the request, Kian submitted a March 2, 2016 soundings plan for Mora/Kenny's
proposed dock prepared by an engineering firm the Rosens retained. The
Rosens' soundings plan purportedly showed that by relocating the proposed dock
to the northern side of the property, "a [four-foot] depth could be attained using
a substantially shorter dock than the one requested[.]" On March 24, 2016,
Virostek responded that after comparing the Rosens' soundings plan with the
engineering plan submitted with Mora/Kenny's application, he agreed that "if
the dock was relocated to the opposite side of the property, it could have been
slightly shorter, but only by approximately [ten to fifteen feet]."
On June 30, 2016, Mora/Kenny submitted a revised application to DEP,
reducing the length of the proposed dock by twenty-two feet. Specifically, the
application sought a permit for the construction of a four-foot by 267-foot dock
with a four-foot by twenty-foot "'L' section at the waterward end." The
supporting engineering plan confirmed that the proposed construction complied
with all regulations, including the Shellfish Habitat Rule, N.J.A.C. 7:7-9.2, the
A-3381-17T4 6 Submerged Vegetation Rule, N.J.A.C. 7:7-9.6, and the Navigation Channels
Rule, N.J.A.C. 7:7-9.7. The plan stated that the proposed dock would "not result
in a loss of navigability[,]" nor "extend into a navigation channel[,]" as "[t]he
nearest authorized navigation channel [was] approximately [500 feet] water
ward of the end of the proposed dock."
On October 12, 2016, DEP approved the revised application subject to
certain pre-construction conditions, including Mora/Kenny's payment of
$6,927.80 to "[DEP's] account for Shellfish Habitat Mitigation" in accordance
with N.J.A.C. 7:7-9.2(d), and Mora/Kenny's receipt of "a tidelands grant, lease
or license from the Bureau of Tidelands." As with the February 10, 2016
approval, the WD permit allowed an appeal of an aggrieved person within thirty
days after publication of the decision in the DEP Bulletin in accordance with
N.J.A.C. 7:7-28.1(b). The decision was published in the DEP Bulletin on
November 2, 2016, and within thirty days of publication, Bodenheimer and the
Rosens submitted separate requests for an adjudicatory hearing.
While those requests were pending, on December 7, 2016, the Tidelands
Resource Council (Council) conducted a hearing on Mora/Kenny's application
A-3381-17T4 7 for a riparian license, pursuant to N.J.S.A. 12:3-12.1.3 At the hearing, the
Council considered Mora/Kenny's application for "a [ten]-year revocable
[riparian] license," required as a pre-construction condition of DEP's issuance
of the WD permit, as well as the objections to the application interposed by
Bodenheimer and the Rosens. Attorneys for Mora/Kenny, Bodenheimer, and
the Rosens appeared at the hearing.
Mora/Kenny's attorney, Allyson Kasetta, acknowledged that the Council
was not bound by DEP's issuance of the WD permit. However, she informed
the Council that DEP's determination indicated that all "applicable regulations
have been met" and "should be a strong indicator" that the proposed dock "does
not, in fact, interfere with navigation or property rights, particularly because
[Mora/Kenny] . . . made a good-faith effort to shorten the dock to 267 feet in
light of the objections . . . raised." Specifically referring to the Rosens'
soundings plan and their attorney's email exchange with Virostek, submitted as
exhibits to the Council by the objectors, Kasetta disputed the Rosens' claim that
relocating the dock "to the northern side of the property" could "potential[ly]
3 Under N.J.S.A. 12:3-12.1, the Council "is the public body responsible for the stewardship of the State’s riparian lands[,]" pursuant to which the Council "determine[s] whether applications for the lease, license, or grant of riparian lands are in the public interest[.]" A-3381-17T4 8 . . . shorten the dock significantly." Because the proposed dock had already been
shortened by twenty-two feet under the revised application, Kasetta stressed
"[t]here would be no real difference in the length if it were to be relocated " as
the Rosens requested.
Additionally, referring to the 2012 permit issued to Mora/Kenny's
predecessor in interest for the construction of a 165-foot dock near the center of
the property, according to Kasetta, even the Rosens' soundings plan showed that
"there [was] no longer anywhere near sufficient depth at 165 feet in the center
of the property" because of changes in "the physical circumstances." Kasetta
also specifically refuted Bodenheimer's claim "that the location of the dock
[was] an impediment to his property[,]" by reiterating that Mora/Kenny had
complied with all applicable regulations governing the location, including
ensuring that there was "a minimum of four feet from all property lines" 4 and "a
minimum of eight feet of open water" separating docks. 5
4 N.J.A.C. 7:7-12.5(b)(7)(ii) requires "[c]onstruction and placement" of docks "a minimum of four feet from all property lines[.]" 5 N.J.A.C. 7:7-12.5(b)(7)(i) requires "[a] minimum of eight feet of open water . . . between any docks if the combined width" of any existing or proposed docks "over the water exceeds eight feet." A-3381-17T4 9 In turn, Bodenheimer's and the Rosens' attorneys objected to the
application as "contrary to the public interest." They asserted that "the
Submerged Aquatic Vegetation Rule and the Shellfish Habitat Rule" required
the applicant to "minimize adverse impacts to the maximum extent
practicable[,]" which had not been done by Mora/Kenny. They also claimed the
proposed dock would adversely affect navigability. According to the Rosens'
attorney, if Bodenheimer built a dock on his property, crammed between the
Rosens' and Mora/Kenny's dock, then the three docks would be "very close
together" and would "create a lot of congestion in the area[,]" making it
"difficult for the public to navigate in that area" and "causing conflict amongst
the neighbors." He argued that by Mora/Kenny building their dock "a few feet
north" and "[thirty feet] shorter[,]" these problems would be alleviated. Both
attorneys asked the Council "to table th[e] application" until a determination was
made by DEP on the respective hearing requests filed by both Bodenheimer and
the Rosens.
After confirming that the timeline for Bodenheimer's construction of a
dock on his property was undetermined, a Council member pointed out that the
related objection was "all conjecture" based "on what[ was] going to happen in
the future if . . . Bodenheimer builds a dock." The Council member also stressed
A-3381-17T4 10 that neither of the objectors adequately addressed whether Mora/Kenny's
northern neighbor could lodge the same objections if the proposed dock was
relocated to the northern side of Mora/Kenny's property as both objectors urged.
At the conclusion of the hearing, the Council declined to table the application
pending DEP's decision on the objectors' hearing requests, and voted
unanimously to grant Mora/Kenny the riparian license to construct the proposed
dock in accordance with the October 12, 2016 DEP WD permit.
Responding to Bodenheimer's objection directed to DEP, in a December
21, 2016 letter, Mora/Kenny opposed Bodenheimer's third-party request for a
hearing, asserting Bodenheimer "failed to establish any statutory or
constitutionally-protected property interest that would confer standing to pursue
an adjudicatory hearing." Mora/Kenny also argued that Bodenheimer's
"substantive challenges to the issuance of the [p]ermit [were] without merit."
On January 11, 2017, Bodenheimer reiterated his objections to DEP and
requested a stay of the permit. On January 10, 2018, DEP Commissioner Bob
Martin denied "Bodenheimer's requests for an adjudicatory hearing and a stay,"
determining that Bodenheimer had no "standing" to obtain a hearing and his
arguments opposing DEP's issuance of the WD permit to Mora/Kenny were
A-3381-17T4 11 without merit.6 The Commissioner also found no "good cause" as required under
N.J.A.C. 7:7-28.3(b) to grant a stay.
Regarding standing, the Commissioner noted that DEP was "precluded
from granting an administrative hearing unless Bodenheimer demonstrate[d]
that he ha[d] either a statutory right to a hearing or a constitutionally protected
property interest affected by the permit," neither of which was shown.
According to the Commissioner, "the [WDA] does not provide a statutory right
to a hearing for persons who are not applicants." Further, Bodenheimer "ha[d]
not articulated any claim of a constitutionally protected individual property
interest" affected by DEP's decision to issue the WD permit, "and none [was]
apparent from a review of the hearing request."
The Commissioner explained:
Bodenheimer claims only that the proposed [dock] will hinder navigation and will negatively affect the use and enjoyment of his property. However, "[f]ear of damage to one's recreational interest or generalized property rights shared with other property owners is insufficient to demonstrate a particularized property right or other special interest." Spalt[ v. DEP, 237 N.J. Super. 206, 212 (App. Div. 1989)]. Because Bodenheimer's claimed interests fall into this latter category, he does not have a particularized property interest sufficient to require an adjudicatory hearing.
6 We were advised at oral argument that the Rosens' hearing request is still pending. A-3381-17T4 12 Finding that the proposed dock complied with "all applicable law and
rules[,]" the Commissioner also rejected Bodenheimer's claim on substantive
grounds. As to N.J.A.C. 7:7-12.5(b)(9), requiring that any "proposed structure
not hinder navigation or access to adjacent water areas[,]" the Commissioner
determined Mora/Kenny's application "adequately addresse[d] this criterion
because the end of the approved [dock was] approximately 200 feet from the
nearest authorized navigation channel used to access the neighboring docks and
Barnegat Bay." Therefore, contrary to Bodenheimer's assertion, the
Commissioner concluded the proposed dock was not "a navigation hazard"
because there was "adequate room to navigate and access adjacent water areas."
Further, according to the Commissioner, Bodenheimer's contention that the
approved dock would "act as an impediment to accessing his property" was
"speculative at best" because he "[did] not currently have a [dock] on his
property."7
Turning to Bodenheimer's claims that the proposed dock violated N.J.A.C.
7:7-12.5(b)(2), requiring that the dock be designed to "minimize[] adverse
7 The Commissioner noted that Bodenheimer's August 4, 2017 application for a WD permit to construct a four-foot by 234-foot dock on his property was approved by DEP on October 12, 2017.
A-3381-17T4 13 environmental impact to the maximum extent feasible[,]"8 and N.J.A.C. 7:7-
12.5(c) and (d), requiring compliance with the "shellfish" and "submerged
vegetation rule[s]," respectively, the Commissioner noted that the engineering
plan accompanying the application "demonstrate[d] that the water depths on the
northern portion of the [p]roperty [were] not significantly greater than the d epths
in the proposed location." This fact undermined Bodenheimer's entreaty to
shorten and relocate the dock to the northern side of the Mora/Kenny property
to resolve his concerns.
When dismissing Bodenheimer's claim that the proposed dock violated
N.J.A.C. 7:7-9.6(b)(6), requiring that the proposed dock be constructed in such
a way as to limit "impacts to submerged vegetation habitat at the site[,]" the
Commissioner explained that "the [p]lan depict[ed] the proposed mooring area
at a water depth of greater than [four] feet[,]" and "a shorter [dock] would not
satisfy th[e] rule, as the mooring piles [were] located just outward of a measured
8 In a related context, we explained that the phrase "to the maximum extent practicable[,]" qualifying the protection afforded in N.J.A.C. 7:7E-7.14 "reflects a balanced regulatory sensitivity to the physical, economic, and other pragmatic constraints that affect waterfront construction." In re Riverview Dev., LLC, Waterfront Dev. Permit No. 0908-05-0004.3 WFD 060001, 411 N.J. Super. 409, 435 (App. Div. 2010).
A-3381-17T4 14 water depth of 3.6 feet."9 Thus, the Commissioner concluded that "there [was]
no practicable or feasible way to reduce the length of the [dock] and still satisfy
the [four]-foot depth requirement."
Likewise, in rejecting Bodenheimer's claim that the dock violated
N.J.A.C. 7:7-9.2(d)(3)(i)(2), requiring that the proposed dock be constructed in
a size "to limit . . . adverse impacts" to "shellfish habitat" to the maximum
"extent practicable[,]" the Commissioner explained:
The area of shellfish impacted is [1436] square feet of documented moderate density hard clam area and scallop production area. The [dock] will be constructed of non-polluting materials and no dredging will take place during construction of this project. . . .10 Impact to shellfish habitat, including any impact that results because of the requirements to meet the submerged vegetation habitat rule, is addressed by mitigation of the shellfish habitat impact. Accordingly, the permit requires Mora/Kenny to make a monetary contribution to [DEP's] account for Shellfish Habitat Mitigation in the amount of $6,927.80 in accordance with N.J.A.C. 7:7-17.9.[11] Thus Mora/Kenny's proposed [dock]
9 Under N.J.A.C. 7:7-9.6(b)(6)(vi), "[a] minimum water depth of four feet at mean low water must be present in the area where the boats will be moored[.]" 10 N.J.A.C. 7:7-9.2(d)(3)(i)(1) requires that "[t]he proposed dock" be "[c]onstructed of non-polluting materials[,]" and N.J.A.C. 7:7-9.2(d)(3)(v) prohibits "dredging . . . in conjunction with the construction or use of the dock[.]" 11 In accordance with N.J.A.C. 7:7-17.9, N.J.A.C. 9:7-9.2(m) provides that "mitigation for impacts to shellfish habitat and the marine ecosystem associated
A-3381-17T4 15 minimizes impacts to shellfish habitat to the maximum extent practicable.
Upon concluding that shortening and relocating the dock to the northern
side of the property, as urged by Bodenheimer, would not minimize impacts to
submerged vegetation and shellfish habitats, the Commissioner stressed DEP
did not direct applicants "where to site a [dock] so long as the proposed location
otherwise complie[d] with the CZM Rules[,]" as it did here. This appeal
followed.
Our role in reviewing the Commissioner's decision is limited. We
"review[] a final agency decision with deference," In re Freshwater Wetlands
Gen. Permit No. 16, 379 N.J. Super. 331, 341 (App. Div. 2005), and "will not
reverse . . . unless: (1) it was arbitrary, capricious, or unreasonable; (2) it
violated express or implied legislative policies; (3) it offended the State or
Federal Constitution; or (4) the findings on which it was based were not
supported by substantial, credible evidence in the record." Univ. Cottage Club
with the construction of a dock, . . . include . . . a monetary contribution to [DEP's] dedicated account for shellfish habitat mitigation." "[T]he monetary contribution . . . is based on the area of shellfish habitat covered by planned structures and mooring areas, the documented shellfish density supported by the local habitat, and the commercial value of the resource[,]" and "is intended to ensure that adverse impacts to the shellfish resource are minimized and habitat improvements are promoted in areas outside of the impacted area through the use of the mitigation funds." Ibid. A-3381-17T4 16 of Princeton N.J. Corp. v. N.J. Dep't of Envtl. Prot., 191 N.J. 38, 48 (2007)
(citing In re Taylor, 158 N.J. 644, 656 (1999)). "This deference is even stronger
when the agency, like DEP . . . , 'has been delegated discretion to determine the
specialized and technical procedures for its tasks.'" In re Freshwater Wetlands
Gen. Permits, 372 N.J. Super. 578, 593 (App. Div. 2004) (quoting Newark v.
Nat. Res. Council, Dep't of Envtl. Prot., 82 N.J. 530, 540 (1980)).
"We also extend substantial deference to an agency's interpretation of its
own regulations, reasoning that 'the agency that drafted and promulgated the
rule should know the meaning of that rule.'" In re Orban/Square Props., LLC,
___ N.J. Super. ___ (App. Div. 2019), slip op at 20 (quoting Permit No. 16, 379
N.J. Super. at 341-42). "And, too, we do not reverse an agency's determination
'because of doubt as to its wisdom or because the record may support more than
one result.'" In re Freshwater Wetlands Gen. Permits, 372 N.J. Super. at 593
(quoting In re N.J. Pinelands Comm'n Resolution, 356 N.J. Super. 363, 372
(App. Div. 2003)). Thus, "[a]lthough an appellate court is 'in no way bound by
the agency's interpretation of a statute or its determination of a strictly legal
issue,'" In re Carter, 191 N.J. 474, 483 (2007) (quoting Mayflower Sec. Co. v.
Bureau of Sec., 64 N.J. 85, 93 (1973)), "if substantial evidence supports the
agency's decision, 'a court may not substitute its own judgment for the agency's
A-3381-17T4 17 even though the court might have reached a different result[.]'" Ibid. (quoting
Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992)).
Given these principles, we reject Bodenheimer's contention that the
Commissioner's determination that he was not entitled to an adjudicatory
hearing was "incorrect as a matter of law, and constitute[d] arbitrary and
unreasonable actions." "A third-party objector's right to a formal administrative
hearing is delineated and circumscribed by the Administrative Procedure Act
(APA), N.J.S.A. 52:14B-1 to -25." In re Auth. For Freshwater Wetlands
Statewide Gen. Permit 6, Special Activity Transition Area Waiver For
Stormwater Mgmt., Water Quality Certification, 433 N.J. Super. 385, 406 (App.
Div. 2013). "Although 'the APA does not foreclose such third parties from
seeking judicial review of the merits of a permit once it is issued by an agency,'"
id. at 406-07 (quoting In re Riverview Dev., LLC, 411 N.J. Super. 409, 425
(App. Div. 2010),
the APA expressly prohibits a state agency from promulgating rules or regulations entitling a third party to an administrative appeal as a contested case under the APA unless "specifically authorized to do so by federal law or State statute," or unless a person "has [a] particularized interest sufficient to require a hearing on constitutional or statutory grounds."
[Id. at 407 (quoting N.J.S.A. 52:14B-3.1(d), -3.2(c), -3.3).]
A-3381-17T4 18 Thus, "[t]he rule is firmly settled that a trial-type adjudicatory hearing is
not allowed in such matters except to an applicant who can show a statutory
right or a constitutionally protected property interest." In re Waterfront Dev.
Permit No. WD88-0443-1, Lincoln Harbor Final Dev., Weehawken, Hudson
Cty., 244 N.J. Super. 426, 436 (App. Div. 1990). Here, Bodenheimer agrees
that no provision of the WDA statute affords him any statutory right to a hearing.
See Spalt, 237 N.J. Super. at 212. "Without a statutory right to a trial-type
hearing, . . . objectors must show that they have a 'particularized property
interest sufficient to require a hearing on constitutional . . . grounds. '" Gen.
Permits, 185 N.J. 452, 463-64 (2006) (quoting N.J.S.A. 52:14B-3.1, -3.2).
However, in Spalt, we held that "[f]ear of damage to one's recreational interest
or generalized property rights shared with other property owners is insufficient
to demonstrate a particularized property right or other special interest." 237 N.J.
Super. at 212.
There, DEP refused to grant a hearing to shell fishermen who had a one-
year leasehold in shellfish beds or to neighboring property owners challenging
DEP's issuance of a Coastal Area Facility Review Act (CAFRA) permit to a
corporate entity redeveloping a Barnegat Bay marina. Id. at 208-11. As to the
neighboring property owners, we held that "simply because some of the
A-3381-17T4 19 plaintiffs reside close to the proposed [marina] site and are fearful of resultant
injury to their property, does not mean they are entitled to an adjudicatory
hearing." Id. at 212. Further, because the shell fishermen could not show that
any damage would result to them before the expiration of their shellfish bed
leases, we concluded they did not possess a sufficient property interest to
warrant an adjudicatory hearing. Id. at 212-13.
Similarly, in In re Amico/Tunnel Carwash, 371 N.J. Super. 199, 204 (App.
Div. 2004), we held that adjacent landowners objecting to the construction of a
car wash lacked a "particularized property interest" that triggered the right to a
hearing before the Office of Administrative Law (OAL). There, a Secaucus
service station owner applied to the New Jersey Meadowlands Commission
(NJMC) for three bulk variances needed to construct a car wash on his property.
Ibid. Adjacent landowners, a married couple who had participated in a hearing
on the variances and had submitted expert reports opining that construction of
the car wash would "create unsafe traffic conditions and have an adverse impact
on the surrounding neighborhood[,]" appealed NJMC's approval of t he variance
application. Id. at 205-06.
Finding that any increased traffic congestion in front of their property was
"similar to the impacts commonly experienced by owners of property in the
A-3381-17T4 20 vicinity of any proposed new development[,]" we held that the adjacent
landowners did not have "a particularized property interest in [the service station
owner's] development plan that entitle[d] them to [an adjudicatory] hearing."
Id. at 212. See also Riverview Dev., 411 N.J. Super. at 411 (App. Div. 2010)
(affirming DEP's denial of an adjudicatory hearing to townhouse residents
challenging DEP's issuance of a WD permit to a high-rise developer on the
ground that the residents, who complained that the proposed project would
obstruct their views of the Hudson River and New York City skyline and worsen
traffic near their dwellings, lacked a particularized property interest sufficient
to require a hearing on constitutional grounds).
In General Permits, our Supreme Court reinforced these principles in
upholding DEP's determination that neighboring property owners "had no
statutory or constitutional right" to "a trial-type hearing" before the OAL "as
part of the administrative permitting process." 185 N.J. at 456. There,
Maramark Builders, LLC "intend[ed] to build single-family residences" on a
seven-acre "undeveloped piece of property in Livingston Township . . . ." Id. at
455. "While seeking subdivision approval from the Livingston Township
Planning Board, Maramark applied to [DEP] for a freshwater wetlands permit
to fill a portion of 'isolated' wetlands on that property, pursuant to the Freshwater
A-3381-17T4 21 Wetlands Protection Act (FWPA), N.J.S.A. 13:9B-1 to -30." Gen. Permits, 185
N.J. at 455. "[P]roperty owners and a community organization" objected "to the
issuance of the permit on the ground that the wetlands [were] not 'isolated' and
that filling them [would] exacerbate flooding conditions on their adjoining
properties." Id. at 455-56.
After "extensively examin[ing] the wetlands issue over a two -year
period[,]" DEP "issued Maramark a freshwater wetlands permit[,]" and rejected
the neighbors' demand for an adjudicatory hearing. Id. at 456. On the neighbors'
appeal, the Court applied the three-factor test enunciated in Mathews v.
Eldridge, 424 U.S. 319, 334-35 (1976) in order to assess the constitutionality of
the administrative procedure and determine whether the third-party objectors
lacked the particularized property interest entitling them to an adjudicatory
hearing. In re Freshwater Wetlands Statewide Gen. Permits, 185 N.J. at 467.
The Court explained:
The first Mathews factor is "the private interest that will be affected by the official action;" the second is "the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards;" and the last is "the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail."
A-3381-17T4 22 [Ibid. (quoting Mathews, 424 U.S. at 335).]
The Court concluded that "DEP's administrative review procedures for the
issuance of a freshwater wetlands permit satisfied traditional notions of due
process." Id. at 456. Applying the Mathews factors, the Court "recognize[d]
that the issuance of the freshwater wetlands permit was a preliminary stage of
the approval process for the Maramark development[,]" and "[e]ven if [its]
issuance . . . , by itself, would mean a greater run-off of water from the
Maramark property, the adequacy of the drainage system" which "controlled
whether there would be any additional flooding onto the neighbors' properties "
was "primarily a matter for the Planning Board." Id. at 473. Further, "no
additional procedural safeguards in the DEP's decision-making process were
constitutionally required, particularly when measured against . . . 'the fiscal and
administrative burdens that the additional or substitute procedural requirement
would entail.'" Ibid.
"Last, because the threat to the objectors' properties by the issuance of
[the] permit [was] speculative, the objectors did not possess the type of
'particularized property interest' that entitled them to a trial-type hearing . . . ."
Ibid. See also Permit 6, 433 N.J. Super. at 406-08 (affirming DEP's denial of
neighboring property owners' request for an adjudicatory hearing to challenge
A-3381-17T4 23 DEP's issuance of a freshwater wetlands permit in connection with Care One,
Inc.'s expansion of its assisted living facility, which challenge was "premised on
CareOne's project posing a threat of increased stormwater discharge to their
properties" and failed to demonstrate "a particularized property right" giving
"rise to a constitutional basis for granting a hearing").
Likewise, here, we agree with the Commissioner that Bodenheimer's
claims that the proposed dock will hinder navigation and negatively affect the
use and enjoyment of his property are the type of "generalized property rights
shared with other property owners" that are "insufficient to demonstrate a
particularized property right or other special interest." See Spalt, 237 N.J.
Super. at 212. Further, DEP's decision-making process ensured compliance with
the specific CZM Rules Bodenheimer asserts were violated. Additionally,
because the threat to Bodenheimer's property would only potentially emerge
upon his future construction of a dock on his property, we also agree with the
Commissioner that the threat to Bodenheimer's property by the issuance of the
WD permit was "speculative[.]" In re Freshwater Wetlands Statewide Gen.
Permits, 185 N.J. at 473.
As the Court noted in In re Freshwater Wetlands Statewide Gen. Permits,
"the administrative process provided . . . cannot be viewed in isolation[,]" but
A-3381-17T4 24 should be considered "[i]n the totality of the circumstances . . . ." Id. at 471-72.
Short of a trial-type OAL hearing, "[t]he Legislature has maintained significant
avenues for third-party objectors to present their concerns about proposed
permits to agency decision-makers before they reach a final determination on a
permit application." Riverview Dev., 411 N.J. Super. at 425. Specifically,
under N.J.S.A. 52:14B-3.1(a), "all interested persons are afforded reasonable
opportunity to submit data, views or arguments, orally or in writing, during any
proceedings involving a permit decision[.]" While "such oral presentations and
written submissions are less formal than a contested case tried before an
Administrative Law Judge," they still "provide an effective and efficient means
for third-party objectors to voice their concerns with the State officials who will
make the ultimate permitting decision." Riverview Dev., 411 N.J. Super. at 425.
Here, Bodenheimer availed himself of that opportunity in his written
submissions to DEP objecting to Mora/Kenny's application before the
permitting decision was made. Bodenheimer also participated in the hearing
before the Council, which, while applying admittedly different substantive
standards, considered his specific objections before determining whether the
issuance of a riparian license required as a pre-condition to construction under
the WD permit was "in the public interest[.]" N.J.S.A. 12:3-12.1. Thus, the
A-3381-17T4 25 issuance of the WD permit to Mora/Kenny "was but one step in a larger
permitting process" before Mora/Kenny could begin constructing the dock.
Gen. Permits, 185 N.J. at 472. 12
We also affirm the rejection of Bodenheimer's contentions that "[DEP]
failed to adhere to the CZM Rules" by not requiring the construction of "a
shorter dock" at an "alternative location" in order to "minimiz[e] impacts to
Shellfish and Submerged Vegetation Habitat" for the reasons expressed in the
Commissioner's comprehensive January 10, 2018 decision. We add only that
our thorough review of the record convinces us that the Commissioner's decision
was not "arbitrary, capricious, or unreasonable" and was "supported by
substantial, credible evidence in the record." Univ. Cottage Club of Princeton,
191 N.J. at 48.
Affirmed.
12 Indeed, to satisfy additional pre-conditions to construction of the dock under the WD permit, on October 23, 2017, Mora/Kenny's application to the Army Corps of Engineers, the federal authority charged with issuing permits for construction activities affecting waters of the United States, was granted, and on February 23, 2017, Mora/Kenny granted an easement to DEP to comply with the Shellfish Habitat Rule. A-3381-17T4 26