SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-3498-99T3
IN THE MATTER OF THE PROTEST
OF COASTAL PERMIT PROGRAM RULES
IN THE MATTER OF THE CHALLENGE A-3606-99T3
BY THE NEW JERSEY ASSOCIATION
OF REALTORS TO AMENDMENTS OF
THE COASTAL PERMIT PROGRAM RULES
AND THE COASTAL ZONE MANAGEMENT
RULES.See footnote 11
IN THE MATTER OF COASTAL PERMIT A-3852-99T3
PROGRAM RULES AND COASTAL ZONE
MANAGEMENT RULES PROMULGATED BY
NEW JERSEY DEPARTMENT OF
ENVIRONMENTAL PROTECTION,
N.J.A.C. 7:7E.
IN THE MATTER OF COASTAL A-3853-99T3
PERMIT PROGRAM RULES AND
COASTAL ZONE MANAGEMENT RULES
PROMULGATED BY NEW JERSEY
DEPARTMENT OF ENVIRONMENTAL
PROTECTION, N.J.A.C. 7:7E.
IN THE MATTER OF AMENDMENTS A-4250-00T3
TO THE COASTAL PERMIT PROGRAM
RULES AND COASTAL ZONE
MANAGEMENT RULES.
Argued April 29, 2002 - Decided May 31, 2002
Before Judges Braithwaite, Coburn and Weissbard.
On appeal from the New Jersey Department of
Environmental Protection.
Paul H. Schneider argued the cause for
appellant New Jersey Builders Association,
Appeal No. A-3498-99T3 (Giordano, Halleran &
Ciesla, attorneys; Michael J. Gross, of
counsel; Mr. Schneider and Steven M. Dalton,
on the brief).
Richard M. Hluchan argued the cause for
appellant, New Jersey Association of
Realtors, Appeal No. A-3606-99T3 (Ballard
Spahr Andrews & Ingersoll, attorneys; Mr.
Hluchan and Richard S. Morrison, on the
brief).
Thomas A. Borden argued the cause for
appellants, Association of New Jersey
Environmental Commissions and New Jersey
Conservation Foundation, Appeal No. 3852-99T2
(Rutgers Environmental Law Clinic, attorneys
(Marjorie Fox, on the brief).
Columbia Environmental Law Clinic, attorneys
for appellants, American Littoral Society,
New Jersey Environmental Federation,
Pinelands Preservation Alliance and Sierra
Club - New Jersey Chapter, Appeal No. A-3853-
99T3 (Edward Lloyd, on the brief).
Rutgers Environmental Law Clinic, attorney
for appellants American Littoral Society,
Sierra Club - New Jersey Chapter, Pinelands
Preservation Alliance, and New Jersey
Environmental Federation, Appeal No. A-4250-
00T3 (Thomas A. Borden, on the brief).
Szaferman, Lakind, Blumstein, Watter, Blader,
Lehmann & Goldshore, attorneys for amicus
curiae, New Jersey State League of
Municipalities, Appeal No. 3853-99T3 (Lewis
Goldshore, on the brief).
Rachel Horowitz, Deputy Attorney General,
argued the cause for respondent, New Jersey
Department of Environmental Protection,
Appeal Nos. A-3498-99T3, A-3606-99T3, 3852-
99T3 (David Samson, Attorney General,
attorney (Patrick DeAlmeida, Deputy Attorney
General, of counsel; Ms. Horowitz, on the
brief).
David Samson, Attorney General, attorney for
respondent, New Jersey Department of
Environmental Protection, Appeal Nos. 3853-
99T3 and A-4250-00T3 (Patrick DeAlmeida,
Deputy Attorney General, of counsel; Rachel
Horowitz, Deputy Attorney General, on the
brief).
Introduction ...................................................3
I. Background ................................................5
A. History of the CAFRA Legislation .....................5
B. History of the CAFRA Regulations ....................10
C. The Regulations at Issue ............................13
1. The Upland Waterfront Development Area .........15
2. The CAFRA Area .................................17
3. The State Plan, DEP, and Designated Boundaries .21
II. Discussion ...............................................30
A. N.J.S.A. 7:7-1.4(b) .................................30
B. Sector Permit Program ...............................38
1. Introduction ...................................38
2. Sector Permit Municipality .....................39
3. Sector Permit Procedure ........................40
4.Standards for Issuing a Sector Permit .............42
C. Impervious Cover Regulations ........................57
1. Definition Not Arbitrary .......................57
2. Adequacy of Numeric Limitations on Impervious
Cover ..........................................59
3. Lack of Coordination with State Plan ...........64
4. APA Violations .................................66
D. Overall Coordination with State Plan ................68
1. Appellants' Contentions ........................68
2. Too Little Coordination with State Plan ........69
3. Too Much Coordination with State Plan ..........70
4. Lack of Technical or Factual Support for Coastal
Centers' Delineation ................................75
5. Coastal Centers and the Fair Housing Act .......76
6. Violations of the APA ..........................77
E. Deed Restrictions ...................................84
The opinion of the court was delivered by
BRAITHWAITE, J.A.D.
These five appeals, consolidated for purposes of this opinion,
involve challenges by appellants New Jersey Association of Realtors
("Realtors"), New Jersey Builders Association ("Builders"),
American Littoral Society, New Jersey Environmental Federation,
Pinelands Preservation Alliance, Association of New Jersey
Environmental Commissions, Sierra Club - New Jersey Chapter, and
New Jersey Foundation ("Environmental appellants") to the validity
of regulations promulgated recently by respondent Department of
Environmental Protection ("DEP") pursuant to the Coastal Area
Facility Review Act ("CAFRA"), N.J.S.A. 13:19-1 to -21.
Appellants challenge a new permit program, the Sector Permit
Program, N.J.A.C. 7:7-9.1 to -9.11, established by DEP in the
Coastal Permit Program (CPP) Rules. The appeals also challenge
DEP's changes to the location policies of the Coastal Zone
Management ("CZM") Rules, N.J.A.C. 7:7E1.1 to -8.21, and the
specific sub-chapters pertaining to "development intensity."
Development intensity determines the allowable limits of impervious
cover (structures and paving) that may be placed on a development
site, and of vegetative cover (trees, shrubs, and grasses) that
must be preserved or planted on a development site. The appeals
also focus on DEP's repealing Subchapter 5 (General Land Areas) of
N.J.A.C. 7:7E and its rewriting a new Subchapter 5 (Requirements
for Impervious Cover and Vegetative Cover for General Land Areas
and Certain Special Areas) and adding Subchapter 5A (Impervious
Cover Limits and Vegetative Cover Percentages in the Upland
Waterfront Development Area) and Subchapter 5B (Impervious Cover
Limits and Vegetative Cover Percentages in the CAFRA Area).
Essentially, although there are other individual claims raised
by the appellants that we will address, appellants' claims can be
divided into four major themes:
. WHETHER N.J.A.C. 7:7-1.4(b) CONFLICTS WITH
N.J.S.A. 13:19-10 BECAUSE IT ALLOWS DEP TO
AVOID MAKING THE SPECIFICALLY ENUMERATED
FINDINGS REQUIRED BY THE STATUTE BEFORE
ISSUING A CAFRA PERMIT (raised by the
Environmental appellants).
. WHETHER DEP'S SECTOR PERMIT PROGRAM, N.J.A.C.
7:7-9.1 to -9.11, IS ULTRA VIRES (raised by
the Environmental appellants).
. WHETHER THE IMPERVIOUS COVER PERCENTAGES IN
N.J.A.C. 7:7E-5B.4 ARE ARBITRARY, CAPRICIOUS
OR UNREASONABLE, OR WERE ADOPTED IN VIOLATION
OF THE ADMINISTRATIVE PROCEDURE ACT (APA),
N.J.S.A. 52:14B-1 to -15 (raised by Builders,
Realtors and Environmental appellants).
. WHETHER DEP ERRED BY USING THE STATE PLAN'S
CENTERS OR BY CREATING ITS OWN COASTAL CENTERS
(raised by Builders, Realtors and
Environmental appellants).
Our careful review of the record convinces us that the
regulations are valid with the exception of N.J.A.C. 7:7-1.4(b),
and the sector permit rules, N.J.A.C. 7:7-9.1 to -9.11, to the
extent that these regulations obviate the necessity of DEP making
the findings required by N.J.S.A. 13:19-10 before issuing a permit.
DEP is ordered to amend these regulations to make clear that it
must make the necessary findings pursuant to N.J.S.A. 13:19-10
before it issues a permit.
In order to put the issues raised in perspective, we set forth
the procedural history and statement of facts.
A. HISTORY OF THE CAFRA LEGISLATION
In 1973, the Legislature enacted CAFRA "to protect the unique and fragile coastal zones of the State." In re Egg Harbor Assocs. (Bayshore Centre), 94 N.J. 358, 364 (1983). See L. 1973, c. 185. That statutory framework first withstood constitutional attack in Toms River Affiliates v. Department of Envtl. Prot., 140 N.J. Super. 135 (App. Div.), certif. denied, 71 N.J. 345 (1976). It was originally designed to control new large-scale residential development, energy facilities, commercial and industrial developments and certain types of public works projects.
Ten years later after CAFRA's enactment, the Supreme Court explained:
Through CAFRA, the Legislature intended to reverse "serious adverse environmental effects . . . that would preclude or tend to preclude those multiple uses which support diversity and are in the best long-term, social, economic, aesthetic and recreational interests of all people of the State." N.J.S.A. 13:19- 2. To achieve this goal, the Legislature determined that
all of the coastal area should be dedicated to those kinds of land uses which promote the public health, safety and welfare, protect public and private property, and are reasonably consistent and compatible with the natural laws governing the physical, chemical and biological environment of the coastal area.
[Id.]
. . . .
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.
[Egg Harbor Assocs., supra, 94 N.J. at 364.]
In 1993, the Legislature significantly amended CAFRA, expanding its jurisdiction. L. 1993, c. 190. Those amendments substantially changed the thresholds for the issuance of development permits in order to better accommodate urban redevelopment and to provide for greater protection for the sensitive coastal areas at the water's edge. See committee statement at the end of N.J.S.A. 13:19-2 (West Supp. 2002).
The jurisdictional expansion was also noted by DEP when it readopted and revised its regulations in response to the Legislature's amendments. 26 N.J.R. 2934-90 (July 18, 1994). As part of that adoption, N.J.A.C. 7:7-2.1 was amended to state in pertinent part:
(b) The Department interprets its obligation and responsibility to regulate development as defined by CAFRA to include review of the potential impacts of any development, if at least part of that development is located within the area in which a CAFRA permit is required. Therefore, if any development requires a CAFRA permit, the Department will review all the components of the development, not just those that triggered the regulatory thresholds of CAFRA . . . .
At its heart, CAFRA requires that any proposed development within the State's "coastal area" that meets the initial construction and development thresholds articulated in N.J.S.A. 13:19-5 must obtain a permit from DEP before the commencement of that construction unless otherwise expressly exempted. N.J.S.A. 13:19-5, 13:19-5.2, and 13:19-5.3. CAFRA's "coastal area" is defined in N.J.S.A. 13:19-4 as generally extending along the State's coast from Cheesequake Creek along Raritan Bay south along the Atlantic Ocean to Cape May and then north along the Delaware Bay and River to the Kilcohook National Wildlife Center in Salem County. "It ranges in width from as little as about 100 feet to as much as about 20 miles." See 31 N.J.R. 2042 (August 2, 1999).
In enacting and amending CAFRA, the Legislature declared in part in N.J.S.A. 13:19-2
that the coastal area and the State will suffer continuing and ever-accelerating serious adverse economic, social and aesthetic effects unless the State assists, in accordance with the provisions of this act, in the assessment of impacts, stemming from the future location and kinds of developments within the coastal area, on the delicately balanced environment of that area.
The Legislature further recognizes the legitimate economic aspirations of the inhabitants of the coastal area and wishes to encourage the development of compatible land uses in order to improve the overall economic position of the inhabitants of that area within the framework of a comprehensive environmental design strategy which preserves the most ecologically sensitive and fragile area from inappropriate development and provides adequate environmental safeguards for the construction of any developments in the coastal area.
[Emphasis added.]
The Legislature also gave DEP power to promulgate new regulations to "effectuate the purposes of this act." N.J.S.A. 13:19-17(a).
In the 1993 amendments, the Legislature added N.J.S.A. 13:19-17(b), which requires that DEP adopt regulations in consultation with the State Planning CommissionSee footnote 22 and local governments, and that the CAFRA regulations be "closely coordinated" with the provisions of the State Plan. N.J.S.A. 13:19-17(b) states:
Within one year of the enactment date of P.L. 1993, c. 190 (C. 13:19-5.1 et al.), the department, in consultation with the State Planning Commission and county and municipal governments located in the coastal area . . . shall adopt new rules and regulations to implement P.L. 1993, c. 190 . . . . Any rules or regulations adopted pursuant to this subsection shall be closely coordinated with the provisions of the State Development and Redevelopment Plan adopted pursuant to P.L. 1985, c. 398 (C. 52:18A-196 et seq.) and the federal "Coastal Zone Management Act of 1972," 16 U.S.C. §1451 et seq.
[Emphasis added.]
At the same time, the Legislature also authorized the State Planning Commission to adopt the coastal planning policies of DEP's regulations as the State Plan for the coastal area. N.J.S.A. 52:18A-206(b) of the State Planning Act states, in part: The State Planning Commission may adopt . . . the coastal planning policies of the rules and regulations adopted pursuant to . . . [CAFRA], the coastal planning policies of the rules and regulations adopted pursuant to . . . [N.J.S.A. 13:19-17(b)] and any coastal planning policies of rules and regulations adopted pursuant to [CAFRA] thereafter as the State Development and Redevelopment Plan for the coastal area. . . .
[L. 1993, c. 190, § 19.]
Additionally in 1993, the Legislature repealed a CAFRA statute that directed DEP to develop a long-term environmental management strategy for the coastal area. This repealed provision had required the Commissioner of DEP to prepare an environmental inventory, an estimate of the capability of the coastal area to absorb and react to manmade stresses, and an environmental design strategy for the coastal area. N.J.S.A. 13:19-16, repealed by L. 1993, c. 190, § 2 (effective July 19, 1994).
B. HISTORY OF THE CAFRA REGULATIONS
DEP executes its statutory authority under CAFRA through the Coastal Permit Program (CPP) Rules at N.J.A.C. 7:7, and the Coastal Zone Management (CZM) Rules at N.J.A.C. 7:7E. Both sets of regulations implement CAFRA, as well as the Wetlands Act of 1970, N.J.S.A. 13:9A-1 to -10, and the Waterfront Development Law, N.J.S.A. 12:5-3 to -11. N.J.A.C. 7:7-1.1 and 7:7E-1.1.
The CPP Rules contain the procedures for reviewing coastal permit applications and for enforcing violations. In contrast, the CZM Rules contain the substantive standards for determining development acceptability and the environmental impact of projects for which coastal permits are submitted.
In December 1997, in response to the Legislature's 1993 CAFRA amendments, DEP released the text of draft rules for new sweeping amendments to N.J.A.C. 7:7 and 7:7E; this was referred to as the Interested Party Review, and DEP asked for even further public comment. 29 N.J.R. 5041 (December 1, 1997).
In December 1998, DEP published a reproposal of its new CAFRA regulations. 30 N.J.R. 4167-203 (December 7, 1998). DEP received many comments, and it held four formal public hearings throughout the State. See 31 N.J.R. 2045 (August 2, 1999) (recounting the history of the regulations). DEP again extended the public comment period and held additional meetings with the building community, environmental groups, county planning offices, and municipalities in the affected areas. Ibid.
DEP did not adopt those rules as proposed. Instead, in August 1999, DEP again substantially modified and republished its proposal in response to concerns and issues raised during the comment periods. 31 N.J.R. 2042-99 (August 2, 1999) (proposal). On February 7, 2000, DEP adopted those proposals with modifications. 32 N.J.R. 503-95 (February 7, 2000) (adoption).
At this time, DEP adopted the Sector Permit Program at N.J.A.C. 7:7-9.1 to -9.11. 32 N.J.R. 503-95 (February 7, 2000) (adoption). DEP's goals for adopting the program were to: "(1) establish a more timely and predictable regulatory process; (2) ensure that plans and regulations are compatible between local, regional and State agencies; (3) ensure that planning precedes and guides regulatory activities; and (4) eliminate duplication in planning and regulatory activities." 31 N.J.R. 2046 (August 2, 1999).
However, additionally on February 7, 2000, DEP proposed new amendments to the rules that it had just promulgated on that day. 32 N.J.R. 352-63 (February 7, 2001) (proposal). These amendments expanded the scope of the program to all CAFRA-development within an entire "sector permit municipality" and updated the certification and re-certification process for qualifying municipalities. Id. at 352. On March 5, 2001, DEP adopted those proposals with substantive and technical changes not requiring additional public notice and comment. 33 N.J.R. 843-69 (March 5, 2001) (adoption).
Pursuant to the Sector Permit Program, "a CAFRA-regulated development shall be authorized through the municipal approval process, subject to concurrent [DEP] review and oversight, if the development meets the requirements of N.J.A.C. 7:7-9.3 and if the applicant seeking authorization for the development fulfills the notification requirements at N.J.A.C. 7:7-9.7." N.J.A.C. 7:7-9.1(c) (purpose and scope). In other words, the sector permit municipality authorizes the development in lieu of a separate DEP CAFRA permit, while DEP concurrently reviews and oversees the process. DEP has described the procedure as follows:
Under the sector permit, the municipal government does not conduct a "CAFRA review." It reviews a CAFRA-regulated development application for consistency with its land use ordinances, which, in accordance with N.J.A.C. 7:7-9.4, must regulate the development to the same extent it would be regulated under CAFRA and the rules. Also, the Department will concurrently review each CAFRA application to ensure that it meets the requirements of the sector permit.
[ 33 N.J.R. 846.]
Meanwhile, in October 2000, DEP had (1) adopted further amendments to the definitions, jurisdiction and application procedures in its regulations, (2) added various new types of permits, and (3) changed the rules concerning various coastal zone areas. 32 N.J.R. 3784-828 (October 16, 2000) (adoption); 32 N.J.R. 864-932 (March 20, 2000) (proposal).
In May 2001, DEP adopted amendments to certain specified land boundaries in Appendix 2 of N.J.A.C. 7:7E. 33 N.J.R. 1371-77 (May 7, 2001) (adoption); 33 N.J.R. 156-59 (January 16, 2001) (proposal).
In November 2001, the Commissioner of DEP published his intent to amend and readopt various regulations in the CZM Rules, N.J.A.C. 7:7. 33 N.J.R. 3566 (October 1, 2001). In fact, in January 2002, DEP published proposed amendments to various regulations, including many in N.J.A.C. 7:7 and 7:7E. 34 N.J.R. 74-170 (January 7, 2002) (proposal). The comment period closed on March 8, 2002, and no adoption has yet been published in the New Jersey Register. The Commissioner published his intent to have the adoption completed in April 2002. 34 N.J.R. 322 (January 7, 2002). C. THE REGULATIONS AT ISSUE
In 2000, DEP substantially amended its regulations in N.J.A.C.
7:7 and 7:7E by repealing Subchapter 5 of N.J.A.C. 7:7E and
rewriting the entire section in addition to adding Subchapters 5A
and 5B.
31 N.J.R. 2042;
33 N.J.R. 843. DEP stated that its
primary objective was "to replace a site-by-site decision-making
process for developments within the CAFRA area with a permit
decision-making process that reflects an inclusive planning
effort."
31 N.J.R. 2043.
These subchapters apply to all development on the general land
areas and to all development on some of the special land areas,
unless otherwise stated in the specific special-land-area
regulations. N.J.A.C. 7:7E-5.1(c). Subchapters 5, 5A and 5B,
however, do not affect single-family-home or duplex developments or
those situations when a developed site will be redeveloped at its
legally existing coverage. N.J.A.C. 7:7E-5.1(d).
Under the new regulations in Subchapter 5, DEP first makes a
distinction between the "upland waterfront development area" and
the "CAFRA area." In fact, the methodologies for determining the
percentages of impervious cover and vegetative cover are based on
this initial distinction.
DEP defines the "CAFRA area" as the "coastal area" defined in
N.J.S.A. 13:19-4. N.J.A.C. 7:7E-5.2 (definitions). The "upland
waterfront development area" includes all lands inland of the CAFRA
area extending from the mean high water line of a tidal water body
to the first paved public road, railroad or surveyable property
lines existing on September 1980, but no less than 100 feet and no
more than 500 feet from the mean high water line. N.J.A.C. 7:7E-
5.2 (definitions).
N.J.A.C. 7:7E-1.5 states that "impervious cover"
means any structure, surface, or improvement
that reduces and/or prevents absorption of
stormwater into land. Porous paving, paver
blocks, gravel, crushed stone, crushed shell,
elevated structures (including boardwalks),
and other similar structures, surfaces, or
improvements are considered impervious cover.
Grass, lawns, or any other vegetation are not
considered impervious cover.
1. The Upland Waterfront Development Area
The methodology for determining impervious cover and
vegetative cover percentages for sites in the "upland waterfront
development area" is found in new Subchapter 5A, N.J.A.C. 7:7E-5A.1
to -5A.10, and it has not substantially changed from the historical
methodology used to determine "development intensity" for all sites
in the prior regulations. That is, three specific regulatory
factors _ growth rating, environmental sensitivity, and development
potential _ are first ascertained for the site in the upland
waterfront development area. N.J.A.C. 7:7E-5A.1 to -5A.7. Once
those factors are determined, DEP plugs them into tables found at
N.J.A.C. 7:7E-5A.8 to determine the acceptable "development
intensity" (high, medium or low) for that site or smaller parts of
that site. Thereafter, DEP plugs the development intensity into
the applicable tables in N.J.A.C. 7:7E-5A.9 and -5A.10 to ascertain
the impervious cover and vegetative cover percentages for a site,
forested or unforested, in the upland waterfront development area.
The main difference between the new and old regulations is that the
percentages themselves have changed in N.J.A.C. 7:7E-5A.9 and
-5A.10.
In the end, maximum impervious cover percentages and minimum
vegetative cover percentages for proposed developments in the
upland waterfront development area are still based on the final
combination of three separate indices to determine development
intensity and on whether the site is forested or unforested:
Development
Intensity
Impervious Cover (max. amt.) Vegetative Cover (min. amt.) Tree Preservation
Development Intensity
Impervious Cover
(max. amt.)See footnote 44
Vegetative Cover
(min. amt.)
Tree Preservation
and/or New
Planting
High (in urban area)
90%
5%
High (not in urban area)
80%
Medium
40%
20%
Low
5%
5%
2. The CAFRA Area
The methodology for determining impervious cover and
vegetative cover percentages for sites in the "CAFRA area" is found
in new Subchapter 5B, N.J.A.C. 7:7E-5B.1 to -5B.5, and is
completely different from the old methodology and from the
methodology for sites in the upland waterfront development area.
For a site in the CAFRA area, both the impervious cover and
vegetative cover percentages are solely based on where the site is
located on the CAFRA Planning Map; that is, in which one or more of
the following four specific categories or centers: (1) a coastal
center; (2) a Coastal Planning Area; (3) a CAFRA center, CAFRA core
or CAFRA node; or (4) a military installation. N.J.A.C.
7:7E-5B.1(a); N.J.A.C. 7:7E-5.1(a)(2). A site in the CAFRA area
may include land in more than one category, and the cover
percentages appropriate to each category apply to those particular
portions of the site. N.J.A.C. 7:7E-5B.3(I).
In other words, rather than determining the acceptable
intensity of development on a site by considering a complex of
factors such as patterns of existing development, natural and
cultural resources, environmental sensitivity, existing
infrastructure, and soil type, the new rules establish impervious
cover limits and vegetative cover requirements for development
sites that reflect where a site is located. The State Planning
Commission's centers that DEP has accepted as its CAFRA centers on
the CAFRA Planning Map are listed in Appendix 4 of N.J.A.C. 7:7E.
33 N.J.R. 869.
In its 1998 reproposal of the CAFRA regulations, DEP created
its own interim "coastal centers".
30 N.J.R. 4167-203 (December 7,
1998). "Coastal centers" are defined in N.J.A.C. 7:7E-5.2 as
a center in the CAFRA area with a boundary
delineated by the Department for the purpose
of applying the requirements for impervious
cover and vegetative cover at N.J.A.C. 7:7E-5
and 5B until such time as, in accordance with
N.J.A.C. 7:7E-5B.3, the coastal center expires
or is superseded by the CAFRA center.
[Emphasis added.]
DEP explained the purpose of delineating its own coastal
centers as follows:
Coastal centers were included in the
Coastal Zone Management rules to facilitate on
an interim basis the permitting of CAFRA-
regulated development in a manner consistent
with the goals of the State Development and
Redevelopment Plan. However, coastal centers
generally do not meet the criteria established
in the State Plan for size, density, dwelling
units, population and other factors. Although
coastal centers may not meet those State
Development and Redevelopment center criteria,
coastal centers were established to
accommodate planned, imminent development
identified by local officials. . . .
The Department expects that municipalities
will examine the coastal center delineations
in relation to their own planning efforts and
development and redevelopment issues, and in
many cases, seek a different community
development boundary and formal center
designation or plan endorsement by the State
Planning Commission. Under the Coastal Zone
Management rules, the State Planning
Commission approved boundaries are then
subject to Department review for consistency
with the CAFRA statute and rules. If the
Department accepts the State Planning
Commission approved boundaries, then the
center is incorporated into the Coastal Zone
Management rules and CAFRA Planning Map as a
CAFRA center.
[
33 N.J.R. 1375 (May 7, 2001).]
DEP also sought input from coastal municipalities and
counties, asking them to identify coastal areas in their own
boundaries. In fact, DEP extended its February 1999 deadline to
April 1999 for CAFRA area communities to identify themselves as
candidates to become eligible for delineation as a "coastal
center."
31 N.J.R. 93 (January 19, 1999).
Previously, in December 1998, DEP published a public notice
that listed a procedure by which municipalities could identify to
DEP places that should be considered as Coastal centers.
30 N.J.R. 4283-84 (December 7, 1998). DEP stated that it would only consider
delineating a Coastal center for a community if that community had
existing development and was listed in a report that had been filed
with the State Planning Commission.
30 N.J.R. 4283.
The other specific CAFRA area categories are defined in
N.J.A.C. 7:7E-5.2, as follows:
"Center" means a compact form of development
which may have one or more cores and
residential neighborhoods. A center may be
[one of five types: (1)] an urban center,
[(2)] regional center, [(3)] town, [(4)]
village, or [(5)] hamlet, based on factors
such as comparative size, population density,
total population, transportation access,
infrastructure, and employment base.
. . . .
"Core" means a pedestrian-oriented area of
commercial and civic uses serving the
surrounding municipality or center, generally
including some housing and access to public
transportation.
. . . .
"Node" means a concentration of facilities and
activities which are not organized in a
compact form.
"Planning area" means an area of greater than
one square mile that shares a common set of
conditions such as population density,
infrastructure systems, level of development,
or environmental sensitivity. The five types
of planning areas are [(1)] Metropolitan
Planning Area, [(2)] Suburban Planning Area,
[(3)] Fringe Planning Area, [(4)] Rural
Planning Area, and [(5)] Environmentally
Sensitive Planning Area.
Once the specific location of a site is determined, the gross
or net land area of that site is multiplied by the percentages
listed in the tables at N.J.A.C. 7:7E-5B.4 and -5B.5 to compute the
impervious cover and vegetative cover percentages.
N.J.A.C. 7:7E-5B.3 defines the boundaries of the various land
area categories. To determine the boundaries of coastal planning
areas, CAFRA centers, CAFRA cores and CAFRA nodes, DEP rejected its
existing coastal Growth Ratings Maps and created a CAFRA Planning
Map. DEP accepted in total the boundaries of the Planning Areas,
Centers, Cores and Nodes approved by the State Planning Commission
as the boundaries of its Coastal Planning Areas, CAFRA centers,
CAFRA cores and CAFRA nodes. N.J.A.C. 7:7E-5B.3(a).
3. The State Plan, DEP, and Designated Boundaries
In 1992, the State Planning Commission adopted the State Plan
and delineated the entire State using five main and distinct
"Planning Areas," which are large masses of land (greater than one
mile) that share a common set of conditions.See footnote 55 See N.J.A.C. 17:32-
1.4 (definition of Planning Area). Smaller sections in these
Planning Areas were conceived of as "Centers," wherein new and old
growth could be organized into compact development and surrounded
by carefully controlled environs. There are five types of
"centers" ranging in scale: urban centers, regional centers,
towns, village and hamlets. See N.J.A.C. 17:32-1.4 (definition of
Center). Inside centers are "Cores" (the commercial, cultural and
civic heart of a center, generally including housing and access to
public transportation) and "Nodes" (a concentrated area of
facilities and activities, which is not organized in a compact
form). See N.J.A.C. 17:32-1.4 (definitions of Core and Node).
By way of a brief summary, the five Planning Areas of the
State Plan are: (1) the Metropolitan Planning Area, which consists
of urban centers and older suburbs with little vacant land, and
where growth would be in the form of redevelopment even outside
designated Centers; (2) the Suburban Planning Area, which provides
for most of the future development, which can take place even
outside designated Centers; (3) the Fringe Planning Area, which
provides a buffer between the more developed Planning Areas and the
less developed Planning Areas, and where development is restricted
to Centers; (4) the Rural Planning Area, which consists of
countryside or farmland with large areas of cultivated or open land
surrounding sparse residential, commercial and industrial sites,
and where all development is restricted to Centers; and (5) the
Environmentally Sensitive Planning Area, which contains large
contiguous land areas with valuable resources, and where all
development is restricted to Centers.
Under the State Plan, however, centers, cores and nodes are
not initially delineated by the State Planning Commission.
Instead, through a "voluntary" or "recommended" process, which was
called "center designation" and is now called "Plan Endorsement"
(
34 N.J.R. 285See footnote 66), only municipal and county governing bodies and
regional and state agencies may petition or bring their plans,
which include boundaries of these areas, to the Commission for
endorsement. N.J.A.C. 17:32-7.2(a).See footnote 77 Endorsement is a regulatory
process that includes public notice, public hearings, meetings and
comment periods. N.J.A.C. 17:32-7.3 to -7.8. Petitions to amend
endorsed plans may be submitted only by counties, municipalities,
and regional and state agencies. N.J.A.C. 17:32-7.12(b).
After endorsement, the designated boundaries in an endorsed
plan are incorporated onto the State Planning Commission's State
Plan Policy Map. Thereafter, during the actual application of the
endorsed plan, private citizens and organizations, in addition to
governmental entities, may petition for amendments or minor
amendments to that map. N.J.A.C. 17:32-8.2; N.J.A.C. 17:32-8.3;
N.J.A.C. 17:32-8.7.
The boundaries of the "coastal centers" that DEP has already
delineated are specifically listed in Appendices 2 and 3 of
N.J.A.C. 7:7E, and are not influenced by the State Planning
Commission. Appendix 2 lists boundaries of seventy-eight mainland
coastal centers in the CAFRA area not located on barrier islands,
oceanfront spits, or peninsulas, and Appendix 3 lists boundaries of
twenty-three coastal centers in the CAFRA area that are located on
barrier islands, oceanfront spits, or peninsulas. The boundaries
of the coastal centers in Appendix 2 will expire in February 2005,
and those areas will be treated as the other land categories in the
State Plan. N.J.A.C. 7:7E-5B.3(g).
DEP explained its use of the State Plan's boundaries as
follows:
The Department's planning in the CAFRA
area has historically relied on broad,
regional boundaries to distinguish rural and
environmentally sensitive areas from developed
and potential growth areas in order to
determine appropriate impervious cover and
vegetative cover requirements. Similarly, the
State Planning Commission has established
boundaries for Planning Areas, which are large
masses of land distinguished by certain
overall characteristics such as population
density, land use, and environmentally
sensitive features. The State Planning
Commission also approves community development
boundaries for centers, which are areas into
which development is already or should be
directed and concentrated, and recognizes
cores and nodes as areas of already
concentrated development either as part of
centers or in the more heavily developed areas
of the State. The factors that the State
Planning Commission uses to formally approve
centers, cores, and nodes are not unlike the
factors which the Department has historically
relied on to determine a site's development
intensity under the existing Coastal Zone
Management rules. Most significantly, the
State Plan boundaries for Planning Areas,
centers, cores and nodes were drawn after a
lengthy public process that extended over a
five-year period, included hundreds of
meetings among municipal, county, and State
officials, and involved the submittal of
thousands of documents from public officials
and private organizations and individuals.
[
31 N.J.R. 2044.]
[T]he Department carefully examined those
boundaries, the purposes for which they were
established, and the factors that determined
how the lines were drawn in order to determine
whether the Department could utilize the
boundaries under CAFRA. Based on its
examination, the Department has determined
that the boundaries drawn by the State
Planning Commission were established and drawn
to serve many of the same purposes as the
Department's boundaries under the Coastal Zone
Management rules for the CAFRA area. The
State Planning Commission boundaries are in
keeping with the purposes of the CAFRA
statute, which include the "encourage[ment of]
the development of compatible land uses in
order to improve the overall economic position
of the inhabitants of [the CAFRA] area within
the framework of a comprehensive environmental
design strategy which preserves the most
ecologically sensitive and fragile area from
inappropriate development and provides
adequate environmental safeguards for the
construction of any developments in the
[CAFRA] area." (See N.J.S.A. 13:19-2.)
Therefore, by virtue of its authority under
the CAFRA statute, the Department has
determined to substitute the State Planning
Commission boundaries for its own in the CAFRA
area, by incorporating by reference into these
proposed rules the State Plan structure of
Planning Areas and designated centers. The
Department has determined that this is an
appropriate way to closely coordinate the
standards for CAFRA permitting with the State
Plan.
[
30 N.J.R. 4168. Accord
31 N.J.R. 2044.]
When the State Planning Commission formally approves any new
or changed boundary to the State Plan, N.J.A.C. 7:7E-5B.3 requires
that DEP evaluate the boundary to determine whether it is
consistent with the purposes of CAFRA, and then publish a notice of
its intention to accept it, reject it, or subsequently promulgate
a revised boundary in the CAFRA Planning Map.See footnote 88 The standards
governing DEP's review are set forth in N.J.A.C. 7:7E-5B.3(b):
The Department shall not reject or reject and
revise a boundary unless it finds that
accepting the State Planning Commission
approved boundary would result in unacceptable
harm to the coastal ecosystem or the resources
of the built or natural environment, or would
otherwise be clearly inconsistent with the
purposes of the Coastal Area Facility Review
Act, N.J.S.A. 13:19-1 et seq., or this
chapter. For those new or changed community
development boundaries or new or changed core
or node boundaries which are located within
the Pinelands National Reserve, the Department
shall also, in consultation with the New
Jersey Pinelands Commission, determine whether
the boundaries are consistent with the intent,
policies and objectives of the National Parks
and Recreation Act of 1978, P.L. 95-625,
section 502, creating the Pinelands National
Reserve, and the State Pinelands Protection
Act of 1979 (N.J.S.A. 13:18A-1 et seq.).
N.J.A.C. 7:7E-5B.3(e) states that DEP may reject or chose to
modify the State Planning Commission's formally approved new or
changed boundary "by promulgating an amendment to this chapter in
accordance with the Administrative Procedure Act ["APA"], N.J.S.A.
52:14B-1 [to -15]." In any case, DEP must publish in the New
Jersey Register a notice of its determination to accept, reject, or
reject and revise the boundary "[w]ithin 90 calendar days after the
date on which the State Planning Commission formally approves such
boundary." N.J.A.C. 7:7E-5B.3(b).
On March 1, 2001, the State Planning Commission readopted the
State Development and Redevelopment Plan and a new State Plan
Policy Map to replace the prior map. See
33 N.J.R. 2347 (July 2,
2001). In response to that action, in a July 2001 public notice,
DEP declared that it had accepted some and rejected some of the
planning area boundary changes that had been formally approved by
the State Planning Commission.
33 N.J.R. 2347-48 (July 2, 2001).
The bottom line for sites in the CAFRA area is that impervious
cover and vegetative cover percentages for a proposed development
are based on where the site is located on the CAFRA Planning Map.
By way of summary:
A. For impervious cover (see N.J.A.C. 7:7E-5B.4):
If a site is located in a CAFRA center, CAFRA
core or CAFRA node _ take the higher amount of
(1) the acreage of the total land area
multiplied by the percentage listed on the
following table or (2) the amount of existing
cover.
If the site is located in the Coastal
Metropolitan Planning Area or in a coastal
center _ take the higher amount of (1) the
acreage of the net land area (i.e., land
remaining after subtracting any "special
areas" such as wetlands or habitat for
threatened or endangered species) multiplied
by the percentage listed on the following
table or (2) the amount of existing cover.
If the site is not located in a CAFRA center,
CAFRA core, CAFRA node, Coastal Metropolitan
Planning Area, or coastal center __ take the
higher amount of (1) the acreage of the net
land area multiplied by the percentage listed
on the following table or (2) the amount of
existing cover.
B. For vegetative cover (see N.J.A.C. 7:7E-5B.5):
Determine the location of the site on the
following table and then multiply the acreage
of the net land area by the percentages listed
on the following table.
Site Location
Impervious
Cover
(max. amt.)
Vegetative Cover (min. amt.)
Tree
Preservation
for forested
portion
Tree
Preservation
and/or New
Planting for
unforested
portion
CAFRA urban center
90%
10%
0
CAFRA regional center
80%
10%
0
Coastal regional center
70%
10%
0
CAFRA core/
CAFRA node
70%
10%
0
CAFRA town/
Coastal town
70%
25%
0
Military installation
70%
10%
0
CAFRA village/
Coastal village
60%
30%
5%
CAFRA hamlet/
Coastal hamlet
50%
40%
5%
Coastal Metropolitan
Planning Area
80%
10%
0
Coastal Suburban
Planning Area, within a
sewer service area
30%
35%
5%
Coastal Suburban
Planning Area, outside
a sewer service area
5%
70%
5%
Coastal Fringe Planning
Area
5%
70%
5%
Coastal Rural Planning
Area
3%
70%
5%
Coastal Environmentally
Sensitive Planning Area
3%
70%
5%
In general, higher impervious cover limits are allowed for
sites within a CAFRA center, CAFRA core, CAFRA node, or coastal
center than for those areas outside of a center. Moreover, as
indicated by the CAFRA Planning Map, Metropolitan Planning Areas
are only located in the coastal area within Monmouth County and
Atlantic County, Suburban Planning Areas extend into Monmouth and
Ocean Counties and portions of Atlantic and Salem Counties (and
many of those lack sewer service), and the balance of the coastal
area comprises Fringe, Rural and Environmentally Sensitive Planning
Areas.
By way of example, DEP estimated that a site in an impervious
cover zone of thirty percent would yield one home per half-acre
lot, whereas that same home in an impervious cover zone of five
percent would need a lot of three to five acres, and in an
impervious cover zone of three percent would need a lot of six to
ten acres.
32 N.J.R. 546.
It is noted that DEP recently proposed amendments to, among
other things, the impervious cover limits in N.J.A.C. 7:7E-5B.4.
34 N.J.R. 322 (January 7, 2002) (schedule);
34 N.J.R. 74-170
(proposal). Specifically, DEP proposed to amend the impervious
cover requirement for CAFRA centers, CAFRA cores and CAFRA nodes
located in the Coastal Metropolitan Planning Area, to provide that
the impervious cover limit is the higher amount of: (1) the
acreage of the total land area on site multiplied by the impervious
cover percentage in the table for the type of CAFRA center, CAFRA
core or CAFRA node in which the site is located; or (2) the amount
of existing impervious cover located on the site; or (3) the
acreage of the net land area on the site multiplied by the
impervious cover percentage in the table for the Coastal
Metropolitan Planning Area, which is eighty percent.
34 N.J.R. 104. DEP explained that, under this proposal, "the impervious
cover limit for a CAFRA village located outside of the Coastal
Metropolitan Planning Area would be 60 percent of the total land
area or the amount of legal, existing impervious cover located on
the site, while the impervious cover limit for a CAFRA village
located in a Coastal Metropolitan Planning Area would be 60 percent
of the total land area, or the amount of legal, existing impervious
cover located on the site, or 80 percent of the net land area, if
that were higher."
34 N.J.R. 104.
Environmental appellants contend that DEP's regulations allow
it to avoid compliance with the requirements mandated by the
Legislature in CAFRA. Specifically, appellants object to newly
adopted N.J.A.C. 7:7-1.4(b). They argue that the regulation
conflicts with N.J.S.A. 13:19-10 because it allows DEP to avoid
making the specifically enumerated findings required by the statute
before issuing a CAFRA permit.
N.J.A.C. 7:7-1.4(b) states:
The Department shall not issue a permit
under CAFRA unless the application complies
with all of the policy and substantive
standards of N.J.S.A. 13:19-2 and 13:19-10 as
expressed in the Coastal Zone Management rules
at N.J.A.C. 7:7E.
Appellants argue that N.J.A.C. 7:7-1.4(b), by cross-
referencing N.J.A.C. 7:7E, and using the limiting language "as
expressed in," allows DEP to circumvent making the findings
pursuant to N.J.S.A. 13:19-10 when it grants a CAFRA permit.
DEP maintains that the CZM Rules at N.J.A.C. 7:7E implement
N.J.S.A. 13:19-10, and therefore the statute will be met
automatically when any CAFRA permit is approved in accordance with
the CZM Rules. DEP lists the eight subchapters of regulations in
the CZM Rules, claiming that those rules in their totality obtain
the results envisioned by the findings required in N.J.S.A. 13:19-
10.
Appellants argue that the specific standards expressed in
N.J.S.A. 13:19-10 are "simply not in the regulations at N.J.A.C.
7:7E" and that DEP cannot maintain that it is complying with the
statutory requirements merely through implementation of the CZM
Rules. Appellants cite various examples to show that the standards
in the CZM Rules are allegedly less stringent than the standards in
N.J.S.A. 13:19-10. Appellants, however, do not object to these
regulations per se. Rather, they use these regulations merely as
illustrations to show that the "words" of the standards in the
regulations do not mirror those in the statute. Thus, appellants
insist that, to ensure compliance with the CAFRA statutes, DEP must
apply the rules at N.J.A.C. 7:7E and, additionally, must make the
mandatory findings under N.J.S.A. 13:19-10 for each issued permit.
Consequently, appellants assert that DEP has two options: (1)
adopt a regulation which cross-references the specific standards in
N.J.S.A. 13:19-10 and requires an agency to make the findings under
the statute, or (2) amend the CZM Rules to include the specific
standards in N.J.S.A. 13:19-10.
On February 7, 2000, DEP proposed N.J.A.C. 7:7-1.4(b).
32 N.J.R. 352 (February 7, 2000). It declared that
[t]his provision, in which the Department is
proposing to include language that specifies
the standards under which a CAFRA permit may
be granted, is being proposed in response to
concerns that the newly adopted rules do not
reference all of the purposes of CAFRA and all
of the standards contained in the CAFRA
legislation for reviewing development
applications. This proposed amendment will
continue to ensure that CAFRA-regulated
developments cause minimal environmental
impacts and are consistent with CAFRA goals.
It also emphasizes that approved permits are
consistent with the policies and intent of
CAFRA.
[
32 N.J.R. 353.]
DEP received various comments on this regulation, specifically
from appellants, who presented the same arguments they make here.
33 N.J.R. 844. In its response, DEP answered:
The adopted rule provides at N.J.A.C.
7:7-1.4(b) that a permit applicant's failure
to comply with the policy and the standards
for permit issuance in the CAFRA statute at
N.J.S.A. 13:19-2 and N.J.S.A. 13:19-10 as
expressed in the Coastal Zone Management rules
will result in permit denial. The Department
complies with N.J.S.A. 13:19-10 through
implementation of the Coastal Zone Management
rules, as well as through implementation of
other regulatory programs, such as the water
allocation program. The water allocation
permit review process evaluates whether there
is sufficient groundwater supply, considers
all applicable rules on groundwater withdrawal
and water diversion privileges, and addresses
issues related to salt water intrusion and
aquifer recharge.
N.J.A.C. 7:7-1.4(b) does not allow the
applicant to determine if its application
meets these standards. The Department reviews
the application and supporting documentation
and then determines whether the application
meets the standards. The section expressly
incorporates into the rules the statutory
mandate that the Department already
implements, that is, ensuring that issued
permits are consistent with the relevant
policies and substantive standards in
N.J.S.A. 13:19-2 and 10.
[
33 N.J.R. 844.]
Administrative regulations are presumed to be valid. New
Jersey State League of Municipalities v. Department of Cmty.
Affairs,
158 N.J. 211, 222 (1999). They are also accorded a
presumption of reasonableness. A.A. Mastrangelo, Inc. v.
Commissioner of Dep't of Envtl. Prot.,
90 N.J. 666, 683 (1982). A
finding of ultra vires action is disfavored. New Jersey Guild of
Hearing Aid Dispensers v. Long,
75 N.J. 544, 561 (1978).
Furthermore, our courts ordinarily recognize that an agency's
specialized expertise renders it particularly well-equipped to
understand the issues and enact the appropriate regulations
pertaining to the technical matters within its area. New Jersey
State League of Municipalities, supra, 158 N.J. at 222. Deference
to an administrative agency is especially appropriate when new and
innovative legislation is being put into practice. Newark
Firemen's Mut. Benevolent Ass'n, Local No. 4 v. City of Newark,
90 N.J. 44, 55 (1982). Thus, in general, if procedurally regular, a
regulation may be set aside only if it is proved to be arbitrary or
capricious, or if it plainly transgresses the statute it purports
to effectuate, New Jersey Guild of Hearing Aid Dispensers, supra,
75 N.J. at 561, or if it alters the terms of the statute or
frustrates the policy embodied in it. New Jersey State Chamber of
Commerce v. New Jersey Elec. Law Enforcement Comm'n,
82 N.J. 57, 82
(1980). The party challenging the validity of a regulation bears
the burden of establishing that it is arbitrary, capricious, or
unreasonable. New Jersey State League of Municipalities, supra,
158 N.J. at 222.
We reject DEP's assertion that N.J.A.C. 7:7-1.4(b) is valid
and that it does not have to review a permit application
specifically applying the criteria set forth in N.J.S.A. 13:19-10.
Our reading of the CZM Rules does not reveal that the specific
findings re