Bulletin Board Magazine 2019 Volume 2

Legal/Legislative

CAFRA – JUDICIAL DEFERENCE I/M/O Lacey Township CAFRA Permit This case is another example of judicial deference based on “agency expertise”. The court affirmed DEP’s issuance of a CAFRA permit issued to Lacey Township for post-Sandy restoration and reconstruction of Bayfront Park. Lacey Township applied for a CAFRA permit in November 2015 to restore Bayfront Park by adding a gabion wall for shore protection, and public amenities including a gazebo, walking path, playground, and stormwater management. The Project improvements were completed in 2017. Appellant, Save Barnegat Bay, objected arguing against installation of a gabion wall to prevent erosion and instead advocated for a living shoreline without any structural measures. After addressing concerns submitted by many parties, the permit was issued. Appellant did not request a hearing, but instead filed a notice of appeal with the Superior Court of New Jersey, Appellate Division, presumably to avoid issues relating to limits on third-party hearing requests. Appellant claimed that the CAFRA permit was improperly granted by DEP because: 1) DEP should have required Lacey Township to utilize “nonstructural means” of protecting the shoreline; 2) the Project would negatively affect diamondback terrapin nesting habitat and other endangered species; 3) DEP violated public trust doctrine; and 4) DEP deprived Appellant of due process by delaying publication of notice of the decision. The Court found each of these claims to be meritless, and affirmed DEP’s approval of the permit with little probing into DEP’s reasoning, stressing the importance of agency expertise and judicial deference to DEP on matters within its purview. The court noted the suggested use of a living shoreline was not mandated by the rules; the municipality revised

Piscitelli objected to the application, claiming a disqualifying conflict of interest due to the relationship between members of the Conte family and certain Zoning Board members. The Board voted unanimously to approve the application, and Piscitelli filed suit claiming the approval was null and void due to two potential conflicts: 1) the physician-patient relationship between the Conte Family and Zoning Board members, and 2) the influence of Dr. Kenneth’s position as President of the Board of Health on Zoning Board members. The trial court rejected the challenge, and the Appellate Division affirmed. The Supreme Court disagreed with the lower courts, stressing the importance of public confidence in the integrity of public proceedings. A public official is disqualified due to a conflict when that official has a conflicting interest that may interfere with her impartiality. The focus is on the potential for conflict, rather than the subjective motives or dishonesty of the official. A conflict is present when the board member is tugged in opposing directions by contradictory desires. The Supreme Court reversed and remanded to the lower court for assessment of whether Dr. Kenneth had decision-making power as president or a member of the Board of Education that related to the employment any Zoning Board members or their immediate family have a meaningful patient-physician relationship with any of the three Conte doctors. An affirmative answer to either would constitute a disqualifying conflict, and require vacation of the approval. This decision could have broad implications beyond the context of this case, especially in small towns with close knit communities. of any Zoning Board members or their immediate family members, and whether

the Project based on comments to mitigate impacts and DEP concluded there were no adverse impacts; public access was maintained and the public trust doctrine was not implicated; and Appellant suffered no prejudice in DEP’s delay in publication of notice of its decision. Thus, the court refused to substitute its judgment for that of the agency. While a favorable outcome in this instance, the decision demonstrates yet again the difficult burden developers must overcome when challenging a DEP permit denial. CONFLICTS OF INTEREST - ZONING BOARD Piscitelli v. Garfield Zoning Board On March 27, 2019, the Supreme Court of New Jersey remanded the Piscitelli case to the trial court to determine whether any Zoning Board member has a disqualifying conflict of interest regarding the Conte Family’s application due to: 1) a meaningful physician- patient relationship between the Zoning Board members or their immediate families and the applicant, and 2) the influence of applicant’s position on the Board of Education on Zoning Board members and their immediate families employed by the Board of Education. The case involved application to the Garfield Zoning Board for site plan approval with multiple variances to construct a four-bay gas station, car wash, and quick lube on three lots. Applicant was a trust(s) owned and controlled by members of the Conte family. Dr. Kenneth S. Conte practiced medicine for decades in the municipality along with his brother, Dr. Daniel P. Conte, Jr., and his nephew, Dr. Daniel P. Conte, III. He was an involved community member and a long-time member and then- President of the Garfield Board of Education. Dr. Kenneth appeared at every related hearing, greeted Zoning Board members, and personally testified in favor of the application.

Legal/ Legislative By Michael J. Gross, Esq., Steven M. Dalton, Esq., and Carmella M. Gubbiotti, Esq. Mr. Gross is a Partner & Chair, Mr. Dalton is a Partner, and Ms. Gubbiotti is an Associate of Giordano, Halleran & Ciesla, P.C.

PUBLIC TRUST DOCTRINE – PUBLIC ACCESS

under the public trust doctrine. In this context, DEP is required to consider the scale of any proposed change in footprint or use of the subject property, the demand for public access, and aspects of any DEP approved municipal public access plan. The law becomes applicable to individual permit applications starting 60 days after the May 3, 2019 effective date. For applications involving other approvals, such as general permits, general permits by certification, or permits by rule, DEP has 18 months to adopt regulations identifying activities for which no public access is required, and also to identify activities for which public access is required but no individual review is necessary. With respect to the later, the absence of an individual review as expressly provided in the law directly conflicts with principles of the public trust doctrine as established by the courts. It will be interesting to monitor whether applicants for general permits for which DEP determines public access is required, without an individual review, seek to challenge the public access requirement on grounds that the absence of an individual review to determine whether the public access condition is reasonable, taking into account fact specific circumstances is inconsistent with the public trust doctrine. Interested parties should also carefully review DEP’s rule making activity to assess how DEP proposes to amend its Coastal Zone Management regulations, which currently include a lengthy (18 page) public access rule recently adopted September 2018, to address the requirements of the new law.

Michael J. Gross

Summer is around the corner and beach access issues are once again in the news. Senate Bill 1074, an “Act Concerning Public Access to Certain Public Trust Land”, was signed into law by the Governor on May 3, 2019. The law is also being referred to as the public trust doctrine / public access law. Whether the law is truly a codification of the common law public trust doctrine principles that have developed through the courts over many years, or something less than that, is debatable. However, the law includes some concrete requirements that parties who own or are developing beachfront land or other land along tidal waters must consider. The public trust doctrine is a common law doctrine tracing back to English law and Roman civil law and long recognized by New Jersey. The recent public access law requires DEP permitting decisions to be consistent with the public trust doctrine and it encourages municipalities to include public access plan elements in their master plans. DEP is required to protect the public right of access to tidally flowed waters and adjacent shorelines to the greatest extent practicable. To achieve this objective, the law provides that for any application submitted to DEP involving change in the existing footprint of a structure or a change in use of property, DEP shall review the availability of existing public access and make a determination as to whether additional public access to tidal waters and adjacent shorelines is necessary consistent with principals established

Steve Dalton

Carmella M. Gubbiotti

Developers must be vigilant to avoid potentially disqualifying conflicts.

Bulletin Board | 41 | www.shorebuilders.org

Bulletin Board | 42 | www.shorebuilders.org