JSTAR, LLC v. N.J. Dep't of Envtl. Prot.
| Decision Date | 27 April 2020 |
| Docket Number | DOCKET NO. A-4483-17T2 |
| Parties | IN THE MATTER OF JSTAR, LLC, Appellant, v. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION -LAND USE REGULATION PROGRAM, and OSBORN SEA BAY CONDOMINIUM ASSOCIATION, NOS. 15006-04-0203.7 CAF 17001, Respondents. |
| Court | New Jersey Superior Court — Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
Before Judges Rothstadt, Moynihan and Mitterhoff.
On appeal from the New Jersey Department of Environmental Protection, Agency No. 1506-04-0203.7 CAF 170001.
R.C. Shea & Associates, attorneys for appellant (Robert C. Shea, of counsel and on the briefs; Dina M. Vicari and Robert C. Shea, II, on the briefs).
Giordano, Halleran & Ciesla, PC, attorneys for respondent Osborn Sea-Bay Condominium Association (Adam Garcia, on the brief).
Gurbir S. Grewal, Attorney General, attorney for respondent New Jersey Department of Environmental Protection (Melissa H. Raksa, Assistant Attorney General, of counsel; Jason Brandon Kane, Deputy Attorney General, on the brief).
JSTAR LLC (JSTAR) appeals from the New Jersey Department of Environmental Protection's (DEP) April 11, 2018 final agency decision, granting a Coastal Area Facility Review Act (CAFRA), N.J.S.A. 13:19-1 to -21, Individual Permit to Osborn Sea-Bay Condominium Association (OSBCA). The permit was issued in connection with OSBCA's proposal to reconstruct a portion of a residential development in Brick Township which lies north of JSTAR's property, that was commonly known as "Camp Osborn," and had been destroyed by Superstorm Sandy.
On appeal, JSTAR contends that (1) OSBCA's notice of its CAFRA application was defective because its project description failed to include a portion of a road abutting OSBCA's property; (2) JSTAR and other members of the public, were not afforded adequate procedural due process in voicing their concerns about the project; (3) the DEP's grant of the CAFRA permit wasarbitrary, capricious, or unreasonable; and (4) OSBCA should be precluded from filing a modification of its CAFRA permit. We affirm, as we conclude that the DEP's grant of the permit was not arbitrary, capricious or unreasonable and JSTAR's arguments to the contrary are without merit.
OSBCA's site for Camp Osborn is comprised of 3.49 acres, designated by Brick Township as Block 36, Lots 13, 18, 22, and 24, and are situated alongside State Route 35. JSTAR owns the property on Lots 11.06 and 11.07 in the same block. To the north of Camp Osborn lies the Ocean Club Condominiums (OCC), to the south is undeveloped land in Lot 12,1 to the west is Route 35, and to the east is the United States Army Corps. of Engineers (Army Corps.) dune project adjacent to the beach.
Two internal roads—Shell Road and Elder Road—provide access to Camp Osborn. To the immediate south of OSBCA's site, on Block 36, Lot 12, lies Cummings Street, which runs east-west from Route 35.2 The road was alsodestroyed by Superstorm Sandy. The property on the other side of Cummings Street on Lot 12 is owned by RTS IV, LLC (RTS).3
The proposed development consists of sixty-seven residential units, access roads, and beach-access walkways for the community's members as well as the general public. As part of the redevelopment, OSBCA would reconstruct Shell and Elder roads and create an additional portion of Cummings Street running north-south within OSBCA's property, perpendicular to the existing street, to connect Shell and Elder roads to the east-west portion of Cummings Street running along the south side of OSBCA's property.
On October 27, 2017, OSBCA filed an application for a CAFRA Individual Permit, which included site photographs, an Environmental Impact Statement (EIS), a Compliance Statement, and a Stormwater Management Summary. As part of its application, OSBCA secured various easements allowing it to build over the sand dunes to the east and traverse the property to the south.
The DEP published receipt of OSBCA's application in its November 15, 2017 Bulletin.4 For its part, OSBCA mailed notice of its application to the Brick Township clerk, construction official, and planning board, the Ocean County planning board and its soil conservation district, and to neighboring property owners within 200 feet of OSBCA's site as determined by a list prepared by Brick Township officials. OSBCA also published notice of its application in a local newspaper.
On November 27, 2017, after an initial review and consideration of OSBCA's proposal under the applicable Coastal Zone Management (CZM) Rules, N.J.A.C. 7:7-1.1 to -29.10, the DEP sent engineering comments toOSBCA so that OSBCA could modify its plan and application to conform to the DEP's Stormwater Management rules, N.J.A.C. 7:8-1.1 to -6.3, and Flood Hazard Area Control Act (FHACA) rules, N.J.A.C. 7:13-1.1 to -24.11. The DEP required OSBCA to amend its submission to add additional information, including the flood hazard area elevation within the site's AO zone,5 the minimum elevation of the finished floors of the dwellings in each flood zone, the flood hazard elevation for each flood zone, and notes about garages, foyers, and basements. OSBCA was also required to explain, with a "detailed demonstration," why the internal roadways could not be constructed at least one foot above the regulatory flood hazard area elevation. Finally, the DEP required signage indicating the area was subject to flooding.
In another DEP Bulletin, the DEP published that the public comment period for OSBCA's proposed development began on December 20, 2017, and ran until January 29, 2018. By December 14, 2017, OSBCA had mailed notices to all municipal entities and neighboring property owners within 200 feet of the development site indicating the public comment period was beginning. OSBCAalso published notice of the start of the public comment period in the local newspaper.
In response to the notice about the public comment period, the DEP received three objections. The OCC objected both to the wooden walkways that would be used to provide beach access and to the proximity of the northern beach access to its property line. The Presutti family, who were members of OSBCA, objected to the OSBCA design plan, the proximity of road setbacks to proposed units, the number of beach access points for the development, the lack of access to the homes identified on Cummings Street, and they explained a dispute they had with OSBCA's board.
The third objection came from JSTAR. JSTAR objected to the location of the beach access walkways, stating they encroached on the Army Corps's dune construction initiative, and they requested Army Corps approval of the walkways. JSTAR also had concerns about the proposed construction of the north-south Cummings Street extension and its alleged non-compliance with flood hazard regulation. JSTAR further stated the size and configuration of OSBCA's development exceeded any "reasonable use" for the property and that the construction might impact the integrity of the sand dunes to the east. Last,JSTAR stated the "light, air and space" of the adjacent residential homes would be significantly impacted if OSBCA were permitted to build.
On March 8, 2018, OSBCA submitted a revised plan and application, adding the notes required by the DEP and submitting an addendum to its compliance statement, in which OSBCA explained it could not raise the internal roadways one foot above the flood hazard elevation because the site abutted Route 35 to the west. Since Route 35 is within an AO zone and is only elevated to five feet, there was no way to raise the project's roads one foot above the flood hazard elevation and still provide vehicular access off the island. OSBCA also complied with a request from the DEP that it use I-5 aggregate material and split-rail fencing instead of the timber for the beach access walkways that OCC objected to in its submission.
The DEP reviewed OSBCA's revised submission and reviewed its own environmental and engineering reports. The environmental report confirmed that OSBCA's modified plan conformed with all applicable regulations, including the CZM rules pertaining to impervious coverage limits, development near sand dunes, vegetative cover percentages, secondary impacts, public access, and CAFRA policies. The engineering report indicated OSBCA'sproposal complied with the engineering requirements of the FHACA rules, including those about elevation of dwellings and roadways.
On April 11, 2018, the DEP granted the CAFRA Individual Permit, authorizing OSBCA to reconstruct Camp Osborne under and in compliance with the CZM rules. This appeal followed.
At the outset, we observe that our review of a final administrative agency decision is limited. Stein v. Dep't of Law & Pub. Safety, 458 N.J. Super. 91, 99 (App. Div.) (citing In re Stallworth, 208 N.J. 182, 194 (2011)), cert. denied, 238 N.J. 425 (2019). We will uphold an agency's decision "unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." J.B. v. N.J. State Parole Bd., 229 N.J. 21, 43 (2017) (quoting In re Herrmann, 192 N.J. 19, 27-28 (2007)). "The burden of demonstrating that the agency's action was arbitrary, capricious or unreasonable rests upon the [party] challenging the administrative action." In re Adoption of Amendments to Ne., Upper Raritan, Sussex Cty. & Upper Del. Water Quality Mgmt. Plans, 435 N.J. Super. 571, 582 (App. Div. 2014) (alteration in original) (quoting In re Arenas, 385 N.J. Super. 440, 443-44 (2006)).
In our review we are bound by an agency's findings of fact "when supported by adequate, substantial and credible evidence." In re Taylor, 158 N.J. 644, 656 (1999) (quot...
To continue reading
Request your trial