Bulletin Board Magazine 2021 V4

Legal/Legislative

Legal/Legislative by Michael J. Gross, Esq., Steven M. Dalton, Esq. and Linda M. Lee, Esq. Mr. Gross is a Partner & Chair, Mr. Dalton is a Partner, and Ms. Lee is an Associate of Giordano, Halleran & Ciesla, P.C.’s Environmental Practice Group

Bulletin Board | 7 | www.shorebuilders.org satisfy the infill exception of the Coastal High Hazard rule. That rule precludes expansion of residential development in a V-Zone unless it constitutes “infill”. To qualify as infill, the development must be on a lot created prior to July 19, 1993, served by municipal public COASTAL INFILL RULE – DEP’s AUTHORITY TO REASONABLY INTERPRET Its RULES POST- DRAGON Colen v. DEP In an unpublished decision, the Appellate Division reversed DEP’s denial of an application for a CAFRA Permit to expand a beachfront single-family home and remanded the matter for further adjudicatory hearings. The case calls into question DEP’s usual practice subsequent to the decision of Dragon v. DEP, 405 N.J. Super 478 (App. Div. 2009) of refusing to issue CAFRA approval absent strict compliance with the Coastal Rules. Instead, the court recognized that DEP has authority to flexibly apply the Coastal Rules taking into account particular factual circumstances not expressly addressed in the Rules. The matter involved an application to renovate a single-family home through enclosure of an existing elevated deck of a parcel in Long Beach Island. The dwelling is within the Coastal V-Zone roughly 475 feet from the mean high-water line. The applicant, Colen, owned the property since 1970 and proposed to renovate the dwelling for use in retirement. DEP denied the application taking the position that the property constituted a regulated dune. DEP found the applicant failed to

sewer, and be located between residential or commercial buildings that are within 100 feet of each adjacent property line perpendicular to the MHWL. The lot in question met the infill requirement on one side, however, the nearest adjacent home south of the lot was approximately 135 feet away. The two structures were also separated by an undeveloped lot and a 50-foot public right of way. Colen argued the ROW area should not be counted, but DEP denied the GP 5 application on grounds that the 135-foot separation exceeded the 100-foot infill criteria of the rules. The denial was upheld on summary decision through adjudicatory hearing, and Colen appealed to the Appellate Division. DEP argued that under Dragon, it lacked discretion to waive the requirements of any of its rules, including the infill exception. DEP took the position that excluding the 50 ROW from way from the calculation infill distance would constitute such a waiver. Colen posited that he merely sought a reasonable interpretation of the rules by DEP and not a waiver of the 100-foot criteria of the infill exception. The regulations do not address the specific facts of the case, and Colen took the position that DEP had discretion to interpret the rules to exclude the 50-foot ROW width from the infill calculation. Colen also made substantive due process claims based on disparate treatment. In ruling for Colen, the Appellate Division noted the Legislative mandate under CAFRA for balancing of environmental protection and

Michael J. Gross

Steve Dalton

Linda M. Lee