Bulletin Board Magazine 2021 V4

economic interests. As set forth in Seigel v. DEP, every DEP action under CAFRA must address the “delicate balance” established by the Legislature. Additionally, pursuant to DEP v. Stavola, 103 N.J. 425 (1986), DEP must adhere to rules of fundamental fairness when determining how to best effectuate public policy taking into consideration administrative due process. Acknowledging the typical substantial deference given by the courts and agency’s final decisions, the Appellate Division nonetheless reversed, finding that multiple issues of material fact existed such that summary decision was inappropriate. The extent the regulated dune area on the property was in dispute. Likewise, the question of disparate treatment with other parcels within a two-mile vicinity also an open issue. Regarding the dune question, the court admonished DEP for its determination that development on a separate parcel is a viable alternative to the proposed project. The court previously addressed such arguments in Seigel noting that the alleged alternative proposed by DEP were neither practical nor feasible. The Court also noted that DEP’s interpretation of the rules would result in “apparent unfairness” on Colen if the rules were strictly applied. The Court chastised DEP, assuming the property were a dune, for not appropriately considering the lack of viable alternatives consistent with Seigel. The court rejected DEP’s argument that the Dragon decision precluded the agency from approving Colen’s application. In Dragon, the court held that “DEP cannot use its litigation settlement process to waive strict compliance with its substantive coastal rules in order to circumvent CAFRA permitting requirements.” Notwithstanding Dragon, citing its decision in SMB Associates v. NJDEP, 264 N.J. Super. 38, 59 (App. Div. 1993), the court noted that “in appropriate cases, we have recognized the persuasiveness of the argument that an agency has an inherent power to waive de minimis violations of objective standards”. Here, while the infill exception imposes 100-foot distance

Bulletin Board | 8 | www.shorebuilders.org During public hearings before Princeton’s Planning Board (“Board”), Princeton’s This case examined the authority of a municipality to interpret and implement its master plan in the context of an affordable housing development. Defendant Princeton introduced a rezoning ordinance to create a new affordable housing zone to permit development with a maximum of 65 affordable housing units. The proposed ordinance rezoned one vacant lot (“Property”). criteria, the rules do not specially address whether areas such as the ROW in question are to be calculated as part of such area. Accordingly, the court found that Dragon did not preclude DEP from reasonably interpreting its rules and taking action to issue the approval if on remand Colen demonstrates that that the stated underlying reasons for the 100-foot limitation (the safety of first responders or occupants during storm events) would not be negatively affected by the proposed 135-foot distance, or that the proposed project will have equal or lesser impacts than development at an alternative location. The court also provided that Colen would be permitted to amend his application should he prevail on remand. DEP must apply coastal rules implementing CAFRA fairly taking into account the delicate balance between protection of the environmental resources and reasonable economic interests. To carry out this Legislative mandate and achieve fundamental fairness consistent with the goals and purposes of CAFRA, DEP has the ability to reasonably interpret its rules such that variation from express, objective standards established the rules may be authorized. The Dragon decision does not preclude such reasonable agency action. ZONING ORDINANCE; AFFORDABLE HOUSING Old Orchard v. Princeton

Planning Director and the Board’s attorney opined that the Ordinance was consistent with Princeton’s Master Plan and the goal of providing affordable housing to the community. After hearing extensive public comment, the Board unanimously adopted the rezoning ordinance (“Ordinance”). The Board found that the Ordinance was consistent with the land use element of the Master Plan and to the extent it was “inconsistent with other goals and provisions of the Master Plan, such inconsistencies [were] outweighed by the opportunity to create a substantial number of safe and attractive affordable housing units in an appropriate location and in furtherance of Princeton’s constitutional obligation.” Plaintiff Old Orchard Village Homeowners Association (“Old Orchard”) was a homeowner’s association that owned property adjacent to the Property. Old Orchard challenged Princeton’s adoption of the Ordinance arguing, amongst other things, that the Ordinance was inconsistent with the Master Plan. Following a bench trial, the trial court dismissed Old Orchard’s case with prejudice. The Appellate affirmed finding that under the relevant law, only “substantial” and not “absolute” consistency between a master plan and zoning ordinance was required. The court determined that the Ordinance was substantially consistent with the Master Plan. The court noted that throughout the Master Plan, Princeton “repeatedly describe[d] itself as a community dedicated to offering a variety of housing to meet the needs of citizens from diverse socio-economic backgrounds and affirm[ed] again and again its commitment to the development of affordable housing.” The Court further recognized the significant deference provided to a local board’s actions

and factual findings as long as they are supported by substantial evidence in the record and are not arbitrary, unreasonable, or capricious.

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