In re Truesdale, A-5696-18
| Decision Date | 29 July 2021 |
| Docket Number | A-5696-18 |
| Parties | IN RE GEORGE TRUESDALE C/O POINT PLEASANT PROPERTIES, INC., CAFRA INDIVIDUAL PERMIT NO. 1524-05-0005.1 CAF 150001 CHALLENGED BY PETER GAPP AND LISA PERRETTO. |
| Court | New Jersey Superior Court — Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 22, 2021
On appeal from the New Jersey Department of Environmental Protection.
Ira E Weiner argued the cause for appellants .
Michael J. Gross argued the cause for respondent George Truesdale c/o Point Pleasant Properties, Inc. (Giordano, Halleran &Ciesla, attorneys; Michael J. Gross and Afiyfa H. Ellington, on the brief).
Patrick S. Woolford, 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; Patrick S. Woolford, on the brief).
Before Judges Messano and Suter.
In November 2015, Point Pleasant 847 Properties, Inc. (the Developer), applied to the New Jersey Department of Environmental Protection (DEP) for an individual permit under the Coastal Area Facility Review Act (CAFRA), N.J.S.A 13:19-1 to -51. The application sought a permit for "the reconstruction of an existing one-story structure with a new two-story banquet hall facility" at Clark's Landing Marina in Point Pleasant (the Project).
Appellants Peter Gapp and Lisa Perretto own residential property in the nearby Clark's Landing Condominium complex. They retained Thonet Associates, Inc. (Thonet), an engineering firm that filed a lengthy report objecting to the issuance of the permit. The report noted that while the new facility would be built essentially on the footprint of an existing structure, it would result in a three-story, not two-story, building. Among numerous other objections, Thonet explained that the Project's ground floor would be below the regulatory "100-year flood" levels set by regulations issued under the Flood Hazard Area Control Act (the FHA), N.J.S.A. 58:16A-50 to -103.
In May 2016, DEP issued the CAFRA permit (the Permit) and on June 1, 2016, published public notice of its issuance. Appellants did not file an appeal to this court, but rather filed a request for an adjudicatory hearing. See N.J.A.C. 7:7-28.1(a) and (b) (permitting a person to request an adjudicatory hearing "to contest a Department decision to approve or deny a coastal permit" within "[thirty] calendar days after public notice of the decision published in the DEP Bulletin"). Appellants' request included additional comments made by Thonet that included the substance of emails between DEP reviewers and the Developer's experts, which appellants obtained through OPRA. Thonet again noted that the Project anticipated a three-story structure with its ground floor below regulatory flood-area levels.
There were additional submissions to DEP by the Developer which were not provided to appellants. In February 2019, nearly three years after the issuance of the Permit, DEP's Division of Land Use issued a written "Amplification and Supplementation of the Record "(the Amplification). DEP noted that in "[t]he . . . application, [the Developer] represented . . . a proposed renovation of the ground floor of the building was not a 'substantial improvement.'"[1] DEP noted that appellants had challenged that characterization of the Project in their request for an adjudicatory hearing and, as a result, DEP "requested additional information from the [Developer] . . . to supplement the public record." The Amplification further stated that the Developer "still did not present enough information for [DEP] to determine if the project is a 'substantial improvement, '" and therefore the agency was applying "the more stringent regulations assuming the [P]roject is a 'substantial improvement.'"
The Amplification then considered FHA regulations in existence at the time of the application, specifically N.J.A.C. 7:13-11.5(g)(4) (2013). Those provided that the applicant demonstrates "it is not feasible to construct the lowest floor of any or all portions of the building at least one foot above the flood hazard area design flood elevation[, ]" and "the lowest floor . . . is constructed as close as feasible to one foot above the flood hazard area design flood elevation." N.J.A.C. 7:13-11.5(g)(4)(i) and (ii) (2013).
Based solely upon the Developer's submissions, DEP concluded the estimated costs to raise the building several feet was approximately $1.4 million, making regulatory compliance "infeasible." DEP concluded that the Project complied with FHA regulations, whether viewed as "a substantial improvement of a lawfully existing building, . . . or a modification of a lawfully existing building that does not result in a substantial improvement."
More than five months later, on July 25, 2019, DEP's Commissioner issued an order denying appellant's request for an adjudicatory hearing. Citing N.J.A.C. 7:7-28.1(e) and decisions from the Supreme Court and our court, the Commissioner concluded appellants "failed to make the requisite showing to establish their right to a hearing or to demonstrate what particularized property interest entitles them to an adjudicatory hearing in this matter." She noted that appellants "due process rights have been well protected by the repeated opportunities afforded to present written objections and reports from their consultants."
Appellants filed this appeal, challenging both the denial of their request for an adjudicatory hearing and DEP's 2016 issuance of the Permit. They contend they were entitled to an adjudicatory hearing under CAFRA, the Public Trust Doctrine, and because the unusual procedural circumstances denied them the right to participate in the review process. Appellants also advance several arguments that DEP's grant of the Permit was arbitrary, capricious, and unreasonable.
The Developer and DEP counter by arguing appellants were not entitled to an adjudicatory hearing because they lacked a "particularized property interest sufficient to require a hearing on constitutional or statutory grounds. "N.J.S.A. 52:14B-3.2(c). DEP argues appellants' challenge to the Permit should be rejected as untimely. The Developer contends DEP properly evaluated its application and granted the Permit.
We have considered these arguments in light of the record and applicable legal standards. We affirm DEP's denial of an adjudicatory hearing. However, "[i]t should go without saying that turning . . . square corners is minimally what citizens should be able to expect from their government." Klumpp v. Borough of Avalon, 202 N.J. 390, 413 (2010). We conclude that DEP did not do so in this matter. We therefore remand the matter to DEP for further proceedings consistent with this opinion.
Pursuant to the Administrative Procedure Act (the APA), N.J.S.A. 52:14B-1 to -31, no State agency may promulgate a regulation "that specifically allows a third party to appeal a permit decision," unless "otherwise required by federal law or by . . . statute." N.J.S.A. 52:14B-3.3(a). A third party is defined as any person other than:
As a result, the Court has clearly held that non-applicants are entitled to an adjudicatory hearing only where they can demonstrate: (1) a right to a hearing under an applicable statute; or (2) a "particularized property interest of constitutional significance that is directly affected by an agency's permitting decision." In re NJPDES Permit No. NJ0025241, 185 N.J. 474, 481 -82 (2006). "[T]hird parties generally are not able to meet the stringent requirements for constitutional standing in respect of an adjudicatory hearing." Id. at 482.
These limitations are "intended to prevent the processing of permit applications by State agencies from being bogged down by time-consuming and costly formal hearings" that "consume substantial public and private resources." In re Riverview Dev., LLC, 411 N.J.Super. 409, 424 (App. Div. 2010). The Legislature found that giving third parties the right to hearings would "give rise to a chaotic unpredictability and instability that would be most disconcerting to New Jersey's business climate and would cripple economic development." N.J.S.A. 52:14B-3.1(c).
"[L]andowners objecting to the development of neighboring property" do not, by proximity alone, "have a particularized property interest warranting an adversarial hearing before an administrative law judge." In re Freshwater Wetlands Gen. Permits, 185 N.J. 452, 470 (2006) (citing Spalt v. DEP, 237 N.J.Super. 206, 208-11 (App. Div. 1989)). Collateral economic impacts, traffic, views, quality of life, recreational interest, and property values, are insufficient to establish a third-party right to an adjudicatory hearing. Ibid.
Given these compelling precedents, nothing in appellants' arguments supporting their right to an adjudicatory hearing warrants discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm DEP's final decision denying appellants an adjudicatory hearing.
Under the particular facts presented, we do not agree with DEP or the Developer that our consideration of the merits of appellants' challenge to the Permit is procedurally barred. We acknowledge that our Court Rules require any appeal from a final agency decision must be filed within forty-five days "from the date of service of the decision or notice of the action taken." See R. 2:4-1(b). DEP contends that despite...
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