NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0043-07T10043-07T1

DONALD McGOVERN,

Plaintiff-Appellant,

v.

BOROUGH OF HARVEY CEDARS,

BOARD OF COMMISSIONERS OF THE

BOROUGH OF HARVEY CEDARS, and

JOHN GERKENS, In His Official

Capacity,

Defendants-Respondents.

_______________________________

Argued May 19, 2008 Decided

Before Judges S.L. Reisner, Gilroy and Baxter.

On appeal from the Superior Court of New Jersey,

Law Division, Ocean County, L-3222-06.

Arthur Stein argued the cause for appellant (Stein

& Supsie, attorneys; Mr. Stein, of counsel and on

the brief; Angela M. Velnich, on the brief).

Robert L. Cerefice argued the cause for respondents (Dowell & Wintrode, attorneys; Mr. Cerefice, on the brief).

The opinion of the court was delivered by

S.L. REISNER, J.A.D.

Plaintiff Donald McGovern appeals from a July 20, 2007 order of the Law Division dismissing his complaint in lieu of prerogative writs against defendants Borough of Harvey Cedars, the Borough's Board of Commissioners, and its Zoning Officer John Gerkens. We affirm, concluding that a municipal ordinance banning construction close to the water's edge on Long Beach Island is constitutional and is not preempted by the Coastal Area Facilities Review Act (CAFRA), N.J.S.A. 13:19-1 to -21.

I

These are the most pertinent facts. Following a disastrous storm in 1962 which devastated Long Beach Island, the Borough of Harvey Cedars adopted an ordinance (ordinance 10-2.2 or the building line ordinance) precluding any construction east of a defined geographic line adjacent to the ocean-side perimeter of the town. Borough of Harvey Cedars Ordinances, Chapter 10-2.2, Waterfront Regulations. See Spiegle v. Beach Haven, 46 N.J. 479 (1966)(Spiegle I); Spiegle v. Beach Haven, 116 N.J. Super. 148, 154-55 (App. Div. 1971)(Spiegle II). The ordinance, which was adopted by virtually all of the other towns on Long Beach Island as well, was intended "to protect the health and safety of residents, as well as the protection of property." By its terms, the ordinance was to be enforced by the Borough's building inspector. Waterfront Regulations