PINELANDS PRESERVATION ALLIANCE v. STATE OF NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

A-4883-11T2

PINELANDS PRESERVATION ALLIANCE

and MICHAEL PERLMUTTER,

Appellants,

v.

STATE OF NEW JERSEY DEPARTMENT

OF ENVIRONMENTAL PROTECTION and

JAYLIN HOLDINGS, LLC,

Respondents.

_________________________________

IN THE MATTER OF THE DEPARTMENT

OF LAND USE REGULATION ISSUANCE

OF PERMIT NOS. 1500-04-0001.1,

APL080001, FWW090001.

_________________________________

June 3, 2014

 

Argued March 24, 2014 - Decided

 

Before Judges Parrillo, Harris, and Guadagno.

 

On appeal from the New Jersey Department of Environmental Protection, Permit Nos. 1500-04-0001.1, APL080001, FWW090001.

 

Ronald S. Gasiorowski argued the cause for appellants Pinelands Preservation Alliance and Michael Perlmutter (A-4880-11) (Gasiorowski & Holobinko, attorneys; Mr. Gasiorowski and Christie A. Gasiorowski, on the briefs).

 

Aaron Kleinbaum argued the cause for appellants New Jersey Conservation Foundation, American Littoral Society, Sierra Club - New Jersey Chapter, and Save Barnegat Bay (A-4883-11) (Eastern Environmental Law Center, attorneys; Mr. Kleinbaum, of counsel and on the briefs; Alice R. Baker, on the briefs).

 

William F. Harrison argued the cause for respondent Jaylin Holdings, LLC (No. A-4880-11) (Genova, Burns, Giantomasi, Webster, LLC, attorneys; Mr. Harrison, of counsel; Cynthia L.M. Holland and Erin K. Phalon, on the brief).

 

Lewin J. Weyl, Deputy Attorney General, argued the cause for respondent New Jersey Department of Environmental Protection in (A-4880-11 and A-4883-11) (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Jung W. Kim, Deputy Attorney General, on the briefs).

The opinion of the court was delivered by

PARRILLO, P.J.A.D.

In these back-to-back appeals, which we have consolidated for purpose of this opinion, a coalition of environmental interest groups1 and local interested parties2 challenge a permit granted by the New Jersey Department of Environmental Protection (DEP) to respondent, Jaylin Holdings, LLC (Jaylin), under the Coastal Area Facility Review Act (CAFRA), N.J.S.A. 13:19-1 to

-21,3 allowing the construction of a Walmart retail store and related improvements on property Jaylin owns that straddles Toms River Township4 and Manchester Township in Ocean County.

Appellants argue that DEP: (1) improperly waived compliance with its coastal regulations by allowing Jaylin to mitigate any adverse development impacts by using off-site parcels and to use expired impervious cover limits; (2) violated the Administrative Procedure Act (APA), N.J.S.A. 52:14B-1 to 25, by creating a new habitat assessment methodology without proper rulemaking; (3) ignored the requirements of the Pinelands Protection Act, N.J.S.A. 13:18A-1 to -29, and the Pinelands Comprehensive Management Plan (CMP) Rules, N.J.A.C. 7:50-1.1 to 10.35; and (4) allowed inadequate notice to owners near the off-site mitigation parcels.

By way of background, on November 8, 2004, Jaylin submitted an application to DEP's Division of Land Use Regulation (DLUR) requesting a CAFRA individual permit, a stream encroachment permit, and a transition area waiver under the Freshwater Wetlands Protection Act (FWPA), N.J.S.A. 13:9B-1 to -30.5 Jaylin proposed developing its forty-three acre property by constructing a 203,091 square foot Walmart retail store, a 19,884 square foot garden center, 1049 parking spaces, three stormwater basins and access roads, while reserving two outparcels for future use.

Approximately 17.13 acres of the proposed construction site are located in Toms River Township, and approximately 25.87 acres are located in Manchester Township. With the exception of a gas station, the construction site is undeveloped and mostly forested; wetlands are located at the southern end.

The site is located in the coastal zone of the Pinelands National Reserve, and it is bordered by Route 37 to the north; by Northampton Boulevard to the east; by approximately 7300 acres of undeveloped land to the west, which is owned by Heritage Minerals, Inc., and which was previously disturbed by sand mining operations; and by a Conrail right-of-way to the south. There is dense residential development north of Route 37, the Toms River Industrial Park east of Northampton Boulevard, more undeveloped land south of the Conrail right-of-way and an extensive residential development southeast of the right-of-way.

DEP published notice of Jaylin's 2004 application in the DEP Bulletin on December 29, 2004, and Jaylin provided notice to the municipal entities and to the surrounding property owners. On January 27, 2005, DLUR deemed the application complete for final review.

In March 2005, DEP's Division of Fish and Wildlife (DFW) voiced concerns that Jaylin's project would not comply with N.J.A.C. 7:7E-3.38(b), governing endangered or threatened species habitat in the coastal zone, because of the property's proximity to past sightings of the northern pine snake. In Summer 2005, Jaylin's consultant saw northern pine snakes and evidence of pine snake hibernacula on the property. Two adult males were discovered, captured, implanted with radio transmitters and monitored until they settled into their winter hibernacula. One snake wintered on the property; the other snake wintered on the neighboring Heritage Minerals property.

The northern pine snake is listed as a "threatened" species in New Jersey. N.J.A.C. 7:25-4.17 (list providing conservation status of New Jersey's indigenous nongame wildlife species). According to the habitat impact assessment prepared by Jaylin's experts, they are long-lived, large-bodied, non-venomous "constrictors that forage aboveground or in subterranean rodent burrows." DEP's "Status Assessment of the Northern Pine Snake[,]" published in December 2009, notes that their numbers are unknown, and they are "found nowhere else in the world but along a narrow fringe of pinelands habitat that occurs within the eastern [United States]." They isolate themselves from other snakes and even from other pine snake populations. They nest in open areas with loose sandy soils and follow scent trails to overwinter in unique underground hibernacula, beginning in early to mid-October and ending in April. They have specific habitat needs and, according to DEP's report, are "less flexible with [their] ability to use various habitat types."

On June 1, 2006, DLUR denied Jaylin's entire 2004 application, finding noncompliance with, among other regulations, N.J.A.C. 7:7E-3.38, governing endangered or threatened wildlife or plant species habitats.

On June 5, 2006, Jaylin appealed the denial to DEP's Office of Legal Affairs (OLA), requesting an adjudicatory or contested case hearing before the Office of Administrative Law (OAL), N.J.A.C. 7:7-5.1(a), or alternative dispute resolution (ADR) before DEP's Office of Dispute Resolution (ODR), N.J.A.C. 7:7-5.4(a) and N.J.A.C. 7:7A-1.7(e). Initially, on December 8, 2006, the ODR rejected ADR as not appropriate, because no mitigation alternative was available for endangered or threatened species.6 Nonetheless, for reasons not apparent in the record, various DEP divisions and Jaylin engaged in formal ADR but "were unable to reach an agreement" as of September 2007. The ODR told the OLA to transmit the matter to the OAL "for an adjudicatory hearing." However, informal discussions between DLUR and Jaylin continued, resulting in a modified project design.

On July 2, 2009, Jaylin participated with DLUR in a "non-binding" "pre-application conference." DLUR's Assistant Director "noted that the anticipated application would be a new application and would be reviewed under the revised design and the current regulations."

On October 22, 2009, Jaylin submitted an application to DLUR requesting a CAFRA individual permit and a FWPA general permit.7 Reducing the scale of its project, Jaylin proposed constructing an 187,793 square foot retail store, a 5703 square foot garden center, 833 parking spaces, five above-ground and two underground stormwater basins and access roads. Jaylin also proposed shifting its project more onto the Toms River Township portion of the property and away from the existing snake hibernaculum and proposed building a four-foot high linear barrier wall to separate the hibernaculum from the development. Jaylin's counsel characterized the application as "a resubmission[,]" which "represents a significantly revised and reduced project that is proposed as a result of the 2006 denial."

In addition to its project activities, Jaylin proposed purchasing, enhancing, and preserving by dedication to DEP two properties in Manchester Township to mitigate any pine snake habitat disturbance on the construction site: (1) a 21 acre parcel that abutted the southwestern portion of the construction site and would serve as a corridor linking the on-site habitat to other habitats across the Conrail right-of-way; and (2) an 89.29 acre parcel that was not near Jaylin's property, but was adjacent to two mapped existing regional wildlife management areas containing documented northern pine snake habitat. Habitat enhancements on the two properties would include construction of artificial hibernacula and stump/debris piles, selective tree thinning, blocked access, creation of upland forest clearings for nesting and scarifying the ground to benefit existing pine snake habitat.

DEP published notice of the application in the DEP Bulletin on November 18, 2009 and notice of a thirty-day public comment period in the DEP Bulletin on December 16, 2009. Jaylin provided notice to the municipal entities and to the surrounding property owners.

On March 15, 2010, DLUR denied Jaylin's 2009 application request for a CAFRA individual permit, finding noncompliance with, among other regulations, the same regulation that formed the basis of the agency's 2006 denial, namely N.J.A.C. 7:7E-3.38, concerning endangered or threatened wildlife or plant species habitats, as well as N.J.A.C. 7:7E-5B.4, 5B.5 and -5B.6, concerning impervious cover limits and mainland coastal centers. Notice of the permit decision was published in the DEP Bulletin on March 24, 2010.

On April 23, 2010, Jaylin appealed to DEP's OLA, requesting an OAL hearing or ADR, and also offered "to negotiate a settlement." During subsequent settlement negotiations, DEP and Jaylin's consultants conducted "a joint inspection of the sites," and Jaylin offered to discuss additional mitigation measures.8 To that end, on December 1, 2010, Jaylin submitted "a revised permit application" to DLUR "[i]n accordance with the provisions of N.J.A.C. 7:7-5.4, entitled Settlement in Response to a Hearing Request[.]" Similar to its immediately preceding application, Jaylin proposed constructing an 189,797 square foot retail store with a water tower, a 5703 square foot garden center, 833 parking spaces, five above-ground and two underground stormwater basins and access roads, totaling a 22.4 acre development area. As before, the proposed development area straddled both townships; however, most of the activities would again be confined on the Toms River Township portion. Save for an above ground basin, part of the parking lot and part of an access road from Route 37 to be located in Manchester Township, the rest of property in that Township would be dedicated to pine snake habitat.

Jaylin also proposed constructing a 3319-foot-long, four- foot-high snake barrier wall to keep the pine snakes away from the development and proposed leaving a 150-foot buffer around the existing snake hibernaculum. Additionally, Jaylin purchased the two additional parcels planned for habitat preservation and enhancement.

To support its application, Jaylin submitted updated information and reports, including an analysis applying DEP's new Habitat Evaluation Method (HEM) for northern pine snakes to the construction site and the mitigation parcels. Jaylin's experts asserted in these documents that the proposed activities would not negatively affect the pine snake population or habitat because of the proposed mitigation measures.

DEP created the "Conceptual [HEM] for Northern Pine Snakes" in August 2010. Using this methodology, DEP's Division of Fish and Wildlife's Endangered and Nongame Species Program (ENSP) staff and Jaylin's consultants each calculated the HEM for Jaylin's proposal, arriving at "remarkably similar" numbers. That is, they compared pre- and post-development and enhancement values by estimating both the habitat value lost due to Jaylin's project and the habitat value gained by Jaylin's proposed habitat enhancements on the on- and off-site properties.

ENSP staff found that most of Jaylin's improvements to the pine snake habitat would benefit the regional pine snake population, as opposed to the snake population directly on Jaylin's construction site. Nevertheless, ENSP staff concluded that Jaylin's proposed on- and off-site enhancements would substantially improve pine snake habitats in the general area, and the construction would result in "no net loss in habitat value" to the population.

DEP published notices of its intent to settle the permits and of the public comment period in the DEP Bulletin of January 12, 2011. Notice was also provided to the local municipalities and to all persons who had notice of the previous applications, or who had commented on them. Numerous comments were filed during the extended comment period and appellants and others submitted lengthy comments and independent expert reports.

On December 20, 2011, Jaylin and DLUR entered into a stipulation of settlement under which DEP would issue permits for the project. Jaylin was required, among other things, to set aside portions of its construction site in both Toms River and Manchester Townships, totaling 20.9 acres, where no development would occur and to maintain that portion as a "permanent conservation restriction pine snake corridor area." Jaylin also agreed to acquire and grant DEP conservation restrictions on additional parcels in Manchester Township, totaling approximately 192 acres on DEP-mapped areas with multiple pine snake habitats.

There was no requirement, however, that these acres be contiguous to the project site, contiguous to one another, near the site or even within the CAFRA area. In fact, while one mitigation parcel of 21.1 acres is contiguous to the construction site, the other mitigation parcels are "up to 6.5 miles away."

Additionally, Jaylin agreed to install a herpetofauna fence (wire exclusion fence) on the construction site and to "retain a qualified herpetologist who shall conduct daily site inspections . . . and monitor, protect and remove to the habitat side [of the fence] all reptiles found on the construction side of the Herpetofauna Fence and on both sides of the linear barrier wall." And Jaylin also agreed to deposit $70,911 into an escrow account for DEP "to ensure successful project completion and ongoing monitoring and maintenance of the enhanced pine snake habitat, and in a second escrow account, a refundable sum of $15,344 for the completion of the sapling planting costs[.]"

On December 21, 2011, DEP published in the DEP Bulletin a notice of settlement and of another public comment period, during which the settlement agreement was available for public inspection and review. Numerous comments were submitted.

On April 18, 2012, DLUR issued the permit authorizing development activities within an approximate 22.4 acre portion of the original property/construction site, containing various standard, administrative and project-specific permit conditions. DLUR attached to the permit its April 2012 Environmental Report, detailing reasons why the project met the statutory and regulatory criteria and its April 2012 Responses to Public Comments. On May 23, 2012, DEP published notice of its final settlement and permit issuance in the DEP Bulletin. These appeals followed.9

Appellants essentially complain that in granting the CAFRA permit, DEP improperly waived and failed to comply with the substantive regulations concerning endangered or threatened species habitat, N.J.A.C. 7:7E-3.38 and impervious cover limits, N.J.A.C. 7A:7E-5B and thus violated CAFRA's mandate in N.J.S.A. 13:19-10 that DEP issue a permit "only upon a finding that the proposed development . . . [w]ould cause minimal feasible interference with the natural functioning of plant, animal, fish, and human life processes at the site and within the surrounding region." N.J.S.A. 13:19-10(e).

I. GENERAL LEGAL PRINCIPLES

Except for certain construction activities expressly exempted from permitting in N.J.S.A. 13:19-5.2, and not applicable here, CAFRA requires developers and property owners to obtain a coastal permit from DEP before undertaking "the construction . . . of any building or structure and all site preparation therefor, . . . includ[ing] . . . commercial development" in a coastal area. N.J.S.A. 13:19-3 (definition of "development"); N.J.S.A. 13:19-5. DEP exercises its CAFRA permitting authority through various regulations, specifically: (1) the Coastal Permit Program (CPP) Rules, N.J.A.C. 7:7-1.1 to -10.7, which "establish[] the procedures by which [DEP] will review permit applications and appeals from permit decisions," N.J.A.C. 7:7-1.1(a); and (2) the Coastal Zone Management (CZM) Rules, N.J.A.C. 7:7E-1.1 to 8.22, which "present[] the substantive rules . . . regarding the use and development of coastal resources," N.J.A.C. 7:7E-1.1(a). See In re N.J.A.C. 7:1B-1.1 et seq., 431 N.J. Super. 100, 120 (App. Div.) (distinguishing the different groups), certif. denied, 216 N.J. 363 (2013).

In In re Protest of Coastal Permit Program Rules, 354 N.J. Super. 293, 332 (App. Div. 2002), we held that "DEP must make findings under the [general] standards in N.J.S.A. 13:19-10, even if DEP finds that a CAFRA permit application complies with its specific regulations." N.J.S.A. 13:19-10 declares that

[a] permit may be issued pursuant to this act [CAFRA] only upon a finding that the proposed development:

 

. . . .

 

e. Would cause minimal feasible interference with the natural functioning of plant, animal, fish, and human life processes at the site and within the surrounding region.

 

. . . .

 

g. Would result in minimal practicable degradation of unique or irreplaceable land types, historical or archeological areas, and existing public scenic attributes at the site and within the surrounding region.

 

Our role in reviewing an agency's decision is limited. In re Proposed Quest Acad. Charter Sch. of Montclair Founders Grp., 216 N.J. 370, 385 (2013). We will not reverse its decision "because of doubts as to its wisdom or because the record may support more than one result." In re N.J. Pinelands Comm'n Resolution, 356 N.J. Super. 363, 372 (App. Div.), certif. denied, 176 N.J. 281 (2003). To reverse a decision, we must find: "(1) it was arbitrary, capricious, or unreasonable; (2) it violated express or implied legislative policies; (3) it offended the State or Federal Constitution; or (4) the findings on which it was based were not supported by substantial, credible evidence in the record." Univ. Cottage Club of Princeton N.J. Corp. v. N.J. Dep't of Envtl. Prot., 191 N.J. 38, 48 (2007).

Moreover, we must extend substantial deference to an agency's interpretation and application of its own regulations, particularly on technical matters within the agency's special expertise. In re Freshwater Wetlands Prot. Act Rules, 180 N.J. 478, 488-89 (2004). However, "[w]hile we must defer to the agency's expertise, we need not surrender to it." N.J. Chapter of Nat'l Ass'n of Indus. & Office Parks v. N.J. Dep't of Envtl. Prot., 241 N.J. Super. 145, 165 (App. Div.), certif. denied, 122 N.J. 374 (1990).

Furthermore, a court is never bound by an agency's determination of a purely legal issue. In re Stream Encroachment Permit, 402 N.J. Super. 587, 597 (App. Div. 2008) (citing Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992)). When "the issue involves the interpretation of statutes and regulations, it is a purely legal issue, which we consider de novo." Klawitter v. City of Trenton, 398 N.J. Super. 302, 318 (App. Div. 2007).

Before DEP issued the permit in this case, we held in Dragon v. New Jersey Department of Environmental Protection, 405 N.J. Super. 478 (App. Div.), certif. denied, 199 N.J. 517 (2009), that even though DEP has authority to settle disputed issues regarding its issuance of a permit, id. at 491, the agency cannot use its litigation settlement process to waive strict compliance with its substantive CZM Rules in order to circumvent CAFRA's permitting requirements. Id. at 492; see also In re N.J.A.C. 7:1B-1.1, supra, 431 N.J. Super. at 125, 128 (also upholding new universal waiver rules). Accord In re CAFRA Permit No. 87-0959-5 Issued to Gateway Assocs., 152 N.J. 287, 308 (1997); SMB Assocs. v. N.J. Dep't of Envtl. Prot., 264 N.J. Super. 38, 50 (App. Div. 1993), aff'd on other grounds, 137 N.J. 58 (1994).

II. ENDANGERED AND THREATENED SPECIES HABITAT, N.J.A.C.7:7E-3.38

 

N.J.A.C. 7:7E-3.38(a) defines "[e]ndangered or threatened wildlife or plant species habitats" as "areas known to be inhabited" by such species "on a seasonal or permanent basis," or in the alternative, as areas known "to be critical at any stage in the life cycle of any" such species. Also deemed a part of those habitats is "a sufficient buffer area to ensure continued survival of the population of the species as well as areas that serve an essential role as corridors for movement of endangered or threatened wildlife."

These areas have been singled out as deserving of special protection. Thus, N.J.A.C. 7:7E-3.38(b) states:

Development of endangered or threatened wildlife or plant species habitat is prohibited unless it can be demonstrated, through an Endangered or Threatened Wildlife or Plant Species Impact Assessment as described at N.J.A.C. 7:7E-3C.2, that endangered or threatened wildlife or plant species habitat would not directly or through secondary impacts on the relevant site or in the surrounding area be adversely affected.

 

[(emphasis added).]

 

"Applicants for development of sites that contain or abut areas mapped as endangered or threatened wildlife species habitat" shall "[d]emonstrate compliance with [N.J.A.C. 7:7E-3.38] by conducting an Endangered or Threatened Wildlife Species Impact Assessment in accordance with N.J.A.C. 7:7E-3C.2[.]" N.J.A.C. 7:7E-3.38(c)(1). According to N.J.A.C. 7:7E-3C.2(a), the submitted assessment must "demonstrate that the proposed development will not negatively affect the population(s) or habitat of [the] endangered or threatened wildlife species that resulted in identification of the site, or an area abutting the site, as endangered or threatened wildlife species habitat[.]" N.J.A.C. 7:7E-3C.2(c) requires that

[i]mpact assessments [] be conducted for each endangered or threatened wildlife or plant species . . . . The impact assessment shall consider the likely affects of the proposed development on the local populations of the particular species on or abutting the site. The impacts shall be assessed using accepted ecological principles and scientific literature on each species and both direct and indirect impacts of the proposed development shall be considered. This assessment shall be based on habitat requirements and life history of each species, and the manner in which the proposed development may alter habitat, including, but not limited to, vegetation, soils, substrate, bathymetry, salinity, hydrology, wildlife movement corridors, human disturbance, and effects on competitor, parasite, or predator species.

 

In its 2012 Environmental Report, DLUR acknowledged that Jaylin's project would cause the direct loss of pine snake habitat on the construction site and "could result in a number of secondary impacts." However, it found that such impacts would not result "in an overall adverse impact" to the local pine snake population on the property or in the surrounding area. That is, the impacts would cause no net loss due to Jaylin's proposed enhancement activities both on and immediately adjacent to the development, including the barrier wall.10 Furthermore, Jaylin's preservation and enhancement of the additional mitigation parcels would improve pine snake habitat in the surrounding area.11 Thus, DLUR concluded that the project met the requirements in N.J.A.C. 7:7E-3.38(b) based on Jaylin's implementation of protective measures on its construction site, its acquisition of 192 acres of pine snake habitat in the area, the overall increase in habitat value as shown by the HEM, and the existing adjoining contiguous pine snake habitat on the Heritage Minerals lands.

Appellants challenge this determination, specifically arguing that that no development can occur on Jaylin's construction site because: (1) N.J.A.C. 7:7E-3.38 does not allow "net" habitat values, as it prohibits any development that will adversely affect the protected habitat either on the site or in the surrounding area; (2) DEP cannot consider any mitigation generally allowed by N.J.A.C. 7:7E-1.6 to meet the requirements in N.J.A.C. 7:7E-3.38 for a CAFRA permit; (3) in any event, using off-site parcels exhibiting a regional population cannot mitigate impacts to the local habitat on or near the construction site, especially if the off-site parcels are outside DEP's CAFRA jurisdiction; (4) Jaylin and DEP failed to use accepted ecological principles and current scientific literature in developing and applying the HEM; and (5) DEP did not formally consult its own Endangered and Nongame Species Advisory Committee (ENSAC), and did not consider the reports of its highly qualified experts who study northern pine snakes. In support of these arguments, appellants stress that DEP had denied Jaylin's 2009 application because of the adverse impacts to pine snake habitat, but then, without adequate explanation, granted Jaylin's 2010 revised application even though it proposed the same building footprints, parking lot and snake barrier wall. We disagree with all of these contentions.

A. "NET" CALCULATION

In arguing that N.J.A.C. 7:7E-3.38 prohibits a "net" habitat value calculation, appellants read the development prohibition in subsection (b), N.J.A.C. 7:7E-3.38(b), too expansively. Neither the regulation nor CAFRA expressly precludes using a "net" computation for assessing the impact of development.

In adopting CAFRA, the Legislature accepted that coastal management involves the balancing of competing interests and that impacts to special areas and populations are unavoidable in some instances. In N.J.S.A. 13:19-2, the Legislature

recognizes the legitimate economic aspirations of the inhabitants of the coastal area and wishes to encourage the development of compatible land uses in order to improve the overall economic position of the inhabitants of that area within the framework of a comprehensive environmental design strategy which preserves the most ecologically sensitive and fragile area from inappropriate development and provides adequate environmental safeguards for the construction of any developments in the coastal area.

 

This balancing can be seen in one of the findings DEP is required to make before issuing any CAFRA coastal permit; that is, DEP must find that the proposed development "[w]ould cause minimal feasible interference with the natural functioning of plant, animal, fish, and human life processes at the site and within the surrounding region." N.J.S.A. 13:19-10(e) (emphasis added). Thus, we find no error in using a "net" calculation.

B. OFF-SITE MITIGATION

Nor is DEP prohibited from using off-site mitigation to meet N.J.A.C. 7:7E-3.38. There is nothing in that regulation expressly preventing an applicant from proposing mitigation at the development site, in the surrounding area or off-site, in order to reverse the potential impact from its project to an endangered and threatened species habitat. Indeed, N.J.A.C. 7:7E-3.38 is not like other CZM Rules for "Special Areas," such as N.J.A.C. 7:7E-3.15 (intertidal and subtidal shallows) and N.J.A.C. 7:7E-3.27 (wetlands), that expressly require certain specific mitigation proposals.12

Although N.J.A.C. 7:7E-3.38 is silent as to the use of any mitigation techniques, N.J.A.C. 7:7E-1.6 sets forth general mitigation principles for the CZM Rules. N.J.A.C. 7:7E-1.6 states:

(a) Mitigation shall be selectively considered on a case-by-case basis as compensation for the loss or degradation of a particular natural resource. In general, mitigation should be similar in type and location to the resource disturbed or destroyed, that is, replacement in kind within the same watershed. The Department will, however, consider proposals for mitigation that differ in type and/or location from the disturbed or destroyed resource provided the mitigation would provide a major contribution to meeting the coastal goals and supplemental policies at N.J.A.C. 7:7E-1.1(c). Requirements for mitigation of a particular resource are addressed more specifically in each applicable Special Area Rules (N.J.A.C. 7:7E-3.1 through 3.49).

 

(b) Rationale: This rule is intended to conserve those physical and biological values described under applicable Special Area rules, while allowing development consistent with acceptability criteria. Use of this mitigation rule will result in real gain, or no net loss of habitat productivity or resource value.

 

[(emphasis added).]

 

In our view, since N.J.A.C. 7:7E-3.38 is silent as to mitigation, it must be read together and harmonized with the mitigation generally provided for in N.J.A.C. 7:7E-1.6, allowing for mitigation, both on-site and off-site, when reviewing the requirements in N.J.A.C. 7:7E-3.38 for permit issuance. Indeed, "[s]tatutes and regulations in pari materia are to be construed together when helpful in resolving doubts or uncertainties in the ascertainment of legislative intent." Boyle v. Riti, 175 N.J. Super. 158, 165 (App. Div. 1980). "Moreover, 'regulations within the same [regulatory] scheme should, where feasible, be read as consistent with each other.'" Czar, Inc. v. Heath, 398 N.J. Super. 133, 139 (App. Div. 2008) (alteration in original) (quoting Van Orman v. Am. Ins. Co., 608 F. Supp. 13 (D.N.J. 1984)), aff'd as modified on other grounds, 198 N.J. 195 (2009).

Thus, by its very terms, N.J.A.C. 7:7E-1.6 allows mitigation onsite generally or off-site at another location, albeit with conditions. In fact, when the CZM Rules were readopted in 2003, DEP declared as to N.J.A.C. 7:7E-1.6: "the Coastal Zone Management rules recognize that coastal management involves the balancing of competing interests. As such, the rules recognize that in certain situations impacts to special areas are unavoidable. Therefore, mitigation is required as a measure to lessen the impacts of that development." 35 N.J.R. 632(a) (Feb. 3, 2003) (DEP's response to comment #34).

In addition, the coastal regulations define "site" as "the lot or lots upon which a proposed development is to be constructed." N.J.A.C. 7:7-1.3 (emphasis added); N.J.A.C. 7:7E-1.8(a) (emphasis added). In applying the CZM Rules to a site, the CPP Rules require DEP to consider the "[p]roperty as a whole," which means "all property assembled as one investment or to further one development plan[,]" regardless of the number of lots involved. N.J.A.C. 7:7-1.3. Those definitions of "site" and "[p]roperty as a whole" do not specify that the lots on which the "regulated activity" will occur must be contiguous. Harmonized with the prior regulations, the three rules together demonstrate that, unless otherwise expressly required, the lots on which the regulated activity and the mitigation occur do not have to be contiguous to reverse or minimize the potential development impact to a special area, such as an endangered or threatened species habitat.

In arguing specifically that off-site mitigation is precluded by regulation, appellants also define "population" in N.J.A.C. 7:7E-3C.2 too narrowly. While N.J.A.C. 7:7E-3C.2(c) declares that the "[i]mpact assessments" shall consider the "likely" effects on the "local population," N.J.A.C. 7:7E-3C.2(a) does not limit itself to the "local population." Rather, N.J.A.C. 7:7E-3C.2(a) declares that the applicant's submitted information must demonstrate that the proposed development "will not negatively affect the population(s) or habitat of endangered or threatened wildlife species that resulted in identification of the site, or an area abutting the site, as endangered or threatened wildlife species habitat." When there is limiting language in one part of an enactment, but it is left out of another section, the omission is viewed as intentional. In re N.J.A.C. 7:1B-1.1, supra, 431 N.J. Super. at 119 (citing Ryan v. Renny, 203 N.J. 37, 58 (2010)). Thus, although the impact assessment must consider construction impacts on the local snake population, which DEP did in this instance,13 DEP's review of those impacts must be assessed against the entire regional population.

Therefore, even though there is evidence suggesting that the pine snakes on the construction site would likely not interact with the pine snakes on the mitigation sites, we find (1) that DEP did not err by concluding that mitigation can occur in areas on, adjacent to, or off the construction site, N.J.A.C. 7:7-1.3, 7:7E-1.6, and 7:7E-1.8, so long as there are no net direct or secondary negative impacts to the habitat on the site or surrounding area, N.J.A.C. 7:7E-3.38, 7:7E-3C.2(c); and (2) that DEP's assessment of the project's impacts, including any barriers, properly took into account the entire pine snake population, not just the local population, N.J.A.C. 7:7E-3C.2(a). In sum, we conclude that DEP did not err by considering all of the mitigation areas when it reviewed whether Jaylin's proposal met the permitting requirements in N.J.A.C. 7:7E-3.38.14

C. DIFFERENT PERMIT APPLICATION OUTCOMES AND DEP'S HABITAT

EVALUATION METHOD

 

Appellants next point out that DEP denied Jaylin's 2009 application after finding adverse impacts to pine snake habitat from Jaylin's proposal, but then granted its 2010 revised application although those two applications proposed similar building footprints, parking lots and snake barrier walls. We discern no agency inconsistency here because there were two main differences in these applications, which resulted in DEP's disparate outcomes.

First, along with its 2010 revised application, Jaylin agreed to acquire and grant DEP conservation restrictions on 192 additional acres in Manchester Township on DEP mapped areas with multiple pine snake habitats, which, as previously noted, were properly taken into account in the agency's "net" habitat value calculation.

Second, DLUR applied DEP's new HEM for northern pine snakes only to Jaylin's 2010 revised application, finding that the proposed activities would not adversely affect that snake population or habitat. Moreover, contrary to appellants' claims, the record shows that DEP used accepted ecological principles and current scientific literature and species mapping in developing and applying the HEM to Jaylin's 2010 revised application.

That is, according to an August 2010 report detailing the HEM by the DFW, entitled "Conceptual Habitat Evaluation Method for Northern Pine Snakes," DEP solicited, received and incorporated input from various pine snake experts in its preparation of the HEM and utilized current scientific literature and habitat mapping and existing federal methodology for habitat evaluation in both developing and applying the HEM to determine whether Jaylin's project complied with N.J.A.C. 7:7E-3.38.

One of the fundamental considerations in reviewing an agency's policymaking and factfinding is that a court may not substitute its judgment for the agency's expertise. In re Distrib. of Liquid Assets Upon Dissolution of Union Cnty. Reg'l High Sch. Dist. No. 1, 168 N.J. 1, 10-11 (2001). Consequently, DEP's interpretation of scientific data, although not binding, "is entitled to substantial weight." N.J. Chapter of Nat'l Ass'n of Indus. & Office Parks, supra, 241 N.J. Super. at 165. This is particularly true when the matter involves complex scientific methodologies. GAF Corp. v. N.J. Dep't of Envtl. Prot., 214 N.J. Super. 446, 452-53 (App. Div. 1986). Thus, we find that DEP's different decisions on Jaylin's two permit applications were neither improper nor inconsistent. Furthermore, because the HEM methodology involved complex computer-based evaluations and actual field assessments by DEP's ENSP staff, we defer to the agency's expertise as to the ecological principles and scientific literature the DFW used in developing and applying the HEM.

And contrary to appellants' additional claim, DEP did not err by having its DFW and ENSP staff develop and apply the HEM without formal input from the ENSAC, as that Committee has no responsibility to advise the DEP Commissioner on whether endangered and threatened species habitats can be developed under CAFRA, or on how to develop them under CAFRA's policies. Indeed, even EELC concedes that there is "no legal obligation" for DEP to adopt the Committee's recommendations.15

For all these reasons then, we conclude that DEP did not waive or fail to comply with its substantive regulations concerning endangered and threatened species habitat, N.J.A.C. 7:7E-3.38, when it granted the CAFRA permit to Jaylin.

III. RULEMAKING

Appellants also contend that DEP engaged in improper de facto rulemaking in violation of the APA by using the HEM during its permit review process to find Jaylin's application met the substantive requirements in N.J.A.C. 7:7E-3.38. They argue that DEP should have formally promulgated the HEM as a new rule because that methodology: (1) is intended to apply uniformly in the future to all similarly situated permit applicants who find northern pine snakes or other endangered species on their development sites in the CAFRA area; (2) prescribes a new legal and administrative standard not otherwise provided by or inferable from an existing statute, rule, procedure, or policy; and (3) is subject to considerable debate even within the scientific community. We disagree.

An administrative agency possesses wide latitude in selecting the suitable procedures to effectuate its statutory goals and regulatory duties. In re Request for Solid Waste Util. Customer Lists, 106 N.J. 508, 519 (1987); Metromedia, Inc. v. Dir., Div. of Taxation, 97 N.J. 313, 333 (1984). However, the discretion whether to act formally or informally is not absolute. Airwork Serv. Div. v. Dir., Div. of Taxation, 97 N.J. 290, 303-04 (1984), cert. denied, 471 U.S. 1127, 105 S. Ct. 2662, 86 L. Ed. 2d 278 (1985).

"The inquiry whether an agency's actions constitute improper rulemaking is informed by well-settled principles." In re N.J.A.C. 7:1B-1.1, supra, 431 N.J. Super. at 133. The APA defines an administrative rule as "each agency statement of general applicability and continuing effect that implements or interprets law or policy, or describes the organization, procedure or practice requirements of any agency." N.J.S.A. 52:14B-2(e). "If an agency determination or action constitutes an 'administrative rule,' then its validity requires compliance with the specific procedures of the APA that control the promulgation of rules." Airwork, supra, 97 N.J. at 300. "The purpose of the APA rulemaking procedures is 'to give those affected by the proposed rule an opportunity to participate in the process, both to ensure fairness and also to inform regulators of consequences which they may not have anticipated.'" In re Provision of Basic Generation Serv. for Period Beginning June 1[,] 2008, 205 N.J. 339, 349 (2011) (quoting In re Adoption of 2003 Low Income Hous. Tax Credit Qualified Allocation Plan, 369 N.J. Super. 2, 43 (App. Div.), certif. denied, 182 N.J. 141 (2004)).

In Metromedia, supra, 97 N.J. at 328-32, our Supreme Court discussed the distinction between administrative rules and adjudications and outlined six factors to consider when evaluating whether an agency determination, "to be valid, had to comply with the requirements governing the promulgation of administrative rules as provided by the APA." Id. at 328. The Court concluded

that an agency determination must be considered an administrative rule when all or most of the relevant features of administrative rules are present and preponderate in favor of the rule-making process. Such a conclusion would be warranted if it appears that the agency determination, in many or most of the following circumstances, (1) is intended to have wide coverage encompassing a large segment of the regulated or general public, rather than an individual or a narrow select group; (2) is intended to be applied generally and uniformly to all similarly situated persons; (3) is designed to operate only in future cases, that is, prospectively; (4) prescribes a legal standard or directive that is not otherwise expressly provided by or clearly and obviously inferable from the enabling statutory authorization; (5) reflects an administrative policy that (i) was not previously expressed in any official and explicit agency determination, adjudication or rule, or (ii) constitutes a material and significant change from a clear, past agency position on the identical subject matter; and (6) reflects a decision on administrative regulatory policy in the nature of the interpretation of law or general policy. These relevant factors can, either singly or in combination, determine in a given case whether the essential agency action must be rendered through rule-making or adjudication.

 

[Id. at 331-32.]

 

Although these criteria were formulated by the Court in a context that distinguished rulemaking from adjudication, they "provide a test of when rulemaking procedures are necessary in order to validate agency actions or determinations." Woodland Private Study Grp. v. N.J. Dep't of Envtl. Prot., 109 N.J. 62, 68 (1987). They "need not be given the same weight, and some factors will clearly be more relevant in a given situation than others." Doe v. Poritz, 142 N.J. 1, 97 (1995).

Here, during the negotiations between DEP and Jaylin, DEP formulated a new assessment methodology, the HEM, which it used to evaluate the habitat value gained through acquisition and enhancement and the habitat value lost from development, that is, to determine the balance between an applicant's proposed off-site mitigation and proposed on-site habitat destruction.

According to an August 2010 report detailing the HEM by DEP's DFW, and entitled "Conceptual Habitat Evaluation Method for Northern Pine Snakes," the "operating principle" of the HEM "is that [the] implementation should result in 'no net loss' of habitat value for the species of concern and allow for habitat enhancement in one area to offset losses of habitat value in another." The DFW explained in its report that the agency's "use of a habitat evaluation method to help quantify changes in habitat quality and determine if the goal of no-net-loss of habitat value is met [was] loosely based on the habitat evaluation procedures (HEP) developed by the federal government for use in habitat decisions and environmental impact assessment."16 It further stated:

NJDEP's pine snake HEM takes the biological and physical characteristics of a site into consideration and assigns a score (or value) to the site being considered based on guided expert opinion rather than on quantitative models. Improvements to habitat quality based upon future proposed enhancement carried out on a site, to augment habitat or abate threats, are also quantifiable using this method.

 

The northern pine snake HEM is broken down into two broad sections[:] Minimum Standards (threshold variables) and what we are calling "Guided Qualitative Assessment." Minimum Standards are landscape- or patch-level features that must be met in order for a site to be further evaluated in the HEM. Guided Qualitative Assessments are expert evaluations of northern pine snake habitat quality and threats on a scale of 0-10, based upon an agreed set of guiding principles that result in a relative value for a particular site.

The DFW further explained that the minimum (or threshold) standards were whether the site was: (1) located within the State's range of northern pine snake (as defined by the DFW's mapping); (2) contained within a "'meta-population patch'" greater than 607 hectares; and (3) located within "a pine snake habitat patch" with an overall area greater than 200 hectares (as defined by the DFW's mapping), which size was taken from a partial research study of pine snakes in New Jersey's Warren Grove Range. The site has to meet all of these standards "to be considered viable northern pine snake habitat in New Jersey" and to justify applying the "Guided Qualitative Assessment."

The "Guided Qualitative Assessment" is scored based on three categories: (1) remote sensing interpretation, "a computer-based evaluation that assesses the general availability and

spatial arrangement of suitable and critical habitats for pine snakes"; (2) field-based habitat assessment, created by evaluators that visit randomly generated sampling points on the site itself and then use "their professional experience and understanding of what constitutes good pine snake habitat to assign a qualitative rating to the habitat"; and (3) threat assessment, a field- and/or computer-based assessment "to evaluate and score existing or imminent threats" on the site.

Once scores for each of these three assessments have been assigned, evaluators will determine a collective point score (CPS) for each sampling point by drawing from the scores of the three assessment categories. The CPS is not meant to be a mathematical mean or average . . . but rather an over-arching score that takes these three assessments into consideration.

 

Once CPSs have been assigned to each sample point . . . , a total habitat value for the site can be calculated by taking the average of all the CPSs and multiplying it by the number of hectares of northern pine snake habitat . . . . This calculation will provide a qualitative estimate of the relative value of pine snake habitat on the site.

 

In its 2012 Environmental Report, DLUR explained that "[t]he total habitat value that would be added by the enhancement activities has been estimated by ENSP using its HEM and then compared to the estimated value of pine snake habitat that would be lost as a result of the Project." ENSP staff "estimate[d] that a total of 51.8 habitat units (HU) for pine snakes would be lost by the development but the implementation of the mitigation proposal would result in an increase of 53 HUs for pine snakes (for a net increase of 1.2 HUs at this spatial scale)."

Recently, we invalidated "guidance" documents promulgated by administrative agencies, as these provided general standards and procedures amounting to rules that should have been adopted in accordance with the APA's rulemaking procedures. In re N.J.A.C. 7:1B-1.1, supra, 431 N.J. Super. at 135-39; In re Highlands Master Plan, 421 N.J. Super. 614, 629-33 (App. Div. 2011); In re Adoption of Reg'l Affordable Hous. Dev. Program Guidelines, 418 N.J. Super. 387, 391-95 (App. Div. 2011). We also invalidated an agency's web postings and development of standardized submission forms as de facto rulemaking. In re N.J.A.C. 7:1B-1.1, supra, 431 N.J. Super. at 139.

In In re Authorization for Freshwater Wetlands Statewide General Permit 6, 433 N.J. Super. 385, 408-16 (App. Div. 2013), we invalidated DEP's "Nonstructural Strategies Points System" and its "User's Guide," when they were used to assess the nonstructural measures in a stormwater management plan.

The New Jersey NSPS is a Microsoft Excel-based computer spreadsheet program that can be used to demonstrate that sufficient nonstructural stormwater management measures have been incorporated into the design of a major land development project to . . . meet the maximum extent practicable requirement for nonstructural strategies in the Stormwater Management Rules. The NSPS assigns points based upon the existing and proposed conditions at the development site. A specific percentage of existing or pre-developed points must be achieved under proposed or post-developed conditions in order to demonstrate compliance through the NSPS. As described in detail below, the required percentage of existing points varies according to the size of project site and the State Planning Area in which it is located.

 

[Id. at 411 (emphasis omitted).]

 

We found that, under this system, a permit applicant would not have had to comply with all of the regulatory requirements of a stormwater management plan if the NSPS demonstrated that sufficient nonstructural measures were proposed. Id. at 412. We did note, however, that the NSPS had been formally adopted under the APA by another agency. Id. at 416, n.12.

These situations, however, are inapposite as the HEM is unlike those measures and, in our view, does not meet the Metromedia factors. As noted by DEP in its 2012 Responses to Public Comments, the HEM was "developed specifically for evaluating and addressing the impacts of [the instant] project." It was created to assist and be applied only by DEP to the narrow community with a certain threatened or endangered species on their property; here it is northern pine snakes. The HEM is a scientific impact assessment tool, in which the value of each habitat type for each of a series of evaluation species is expressed in terms of habitat units. Also, DFW announced in its August 2010 report entitled "Conceptual Habitat Evaluation Method for Northern Pine Snakes" that DEP will visit each site before assigning baseline habitat values using the HEM; thus, the HEM will be applied on a case-by-case basis.

More importantly, the HEM does not prescribe any legal standard or directive and reflects no administrative regulatory policy. There is nothing novel in DEP's need to review and assess habitats, habitat impact, and habitat mitigation; the federal government has been using habitat assessment tools for many years. We therefore conclude that DEP did not engage in improper de facto rulemaking by using the HEM in its permit review process.

IV. PINELANDS COMMISSION AND APPLICATION OF CMP RULES

Appellants complain that DEP failed to consider the recommendations of the Pinelands Commission (Commission) concerning Jaylin's project and to directly apply the Pinelands Comprehensive Management Plan (CMP) Rules, N.J.A.C. 7:50-1.1 to 10.35, to Jaylin's final application. Specifically, appellants argue that Jaylin's development, including its off-site mitigation parcels, is in the Pinelands National Reserve and within the Commission's jurisdiction, which required DEP to apply the CMP Rules to Jaylin's proposal and also required Commission review and approval. Although appellants acknowledge that the Commission did submit its comments to DEP after its review of Jaylin's permit application under the CMP Rules, they nevertheless argue that DEP failed to address the nonconformities and deficiencies reported by the Commission. As a result, appellants contend the issuance of the CAFRA permit contravened the CMP Rules because it did not avoid "irreversible, adverse impacts" on the habitat of the local population of northern pine snakes. We disagree.

Initially, as conceded by appellants, DEP did receive comments on Jaylin's 2009 application from the Commission in July 2010, which also referred to the Commission's earlier January 2005 comments submitted to DEP on Jaylin's original application. And contrary to appellants' claims, the Commission noted on various relevant issues that it was unable to judge Jaylin's compliance with the CMP standards and, instead, deferred to DEP's determination as to whether the proposed project met the applicable criteria. In any event, for the following reasons, DEP was not required to evaluate whether Jaylin's project met the specific CMP Rules, and it was not required to agree with the Commission's findings.

Jaylin's property is located in the Pinelands National Reserve, which was established by Congress in 1978. See Gardner v. N.J. Pinelands Comm'n, 125 N.J. 193, 198-200 (1991) (providing a detailed history of the Pinelands National Reserve). Subsequently, the Legislature enacted the Pinelands Protection Act, N.J.S.A. 13:18A-1 to -58, creating the Commission, N.J.S.A. 13:18A-4, which was charged with developing the CMP, as mandated by the National Parks and Recreation Act of 1978, 16 U.S.C.A. 471i. The CMP's objective is "to promote orderly development of the Pinelands so as to preserve and protect the significant and unique natural, ecological, agricultural, archaeological, historical, scenic, cultural and recreational resources[.]" N.J.A.C. 7:50-1.3.

The CMP creates different land use areas, or "pinelands management areas," based on an assessment of environmental resources and pressures. N.J.A.C. 7:50-5.11 to 5.19. For example, "the Preservation Area District . . . represents the most critical ecological region," and it "must be protected from development and land use that would adversely affect its long-term ecological integrity." N.J.A.C. 7:50-5.13(a).

Jaylin's project is specifically located in the Pinelands Regional Growth Area, which is an "area[] of existing growth or lands immediately adjacent thereto which [is] capable of accommodating regional growth influences while protecting the essential character and environment of the Pinelands[.]" N.J.A.C. 7:50-5.13(g). The minimum standards governing the distribution and intensity of development allowed in a regional growth area are found in N.J.A.C. 7:50-5.28, which allows, among other things, any "use not otherwise limited pursuant to N.J.A.C. 7:50-6," concerning endangered or threatened species and their habitats.

Nevertheless, as noted, Jaylin's project is also located in the CAFRA area. N.J.A.C. 7:7E-3.44(a)(2) (list of coastal municipalities located within Pinelands National Reserve Area). For properties in this overlap area, that is, located in the CAFRA zone and in the Pinelands National Reserve, but outside of the Pinelands Protection Area, DEP and the Commission coordinate permit review pursuant to a 1988 Memorandum of Agreement (MOA) entered into by the two agencies. N.J.A.C. 7:7E-3.44(b)(2). Pursuant to the MOA, DEP reviews and decides the coastal permit, ensuring that the Commission has an opportunity to comment on the manner in which the CMP Rules apply to the proposal. There is nothing in the MOA, statutes or regulations, however, requiring that DEP agree with the Commission's findings on any one application. Cf. In re Proposed Xanadu Redevelopment Project, 402 N.J. Super. 607, 647-48 (App. Div.) (when statute requires consultation, no requirement that there be unanimity between two agencies), certif. denied, 197 N.J. 260 (2008).

In addition, there is nothing in the MOA requiring DEP to apply the CMP Rules directly to Jaylin's application. In fact, the CMP and CZM Rules are designed to be similar. According to the MOA, the agencies must endeavor to find and prevent any inconsistencies between the CMP and CZM Rules. Paragraph Seven of the MOA states:

Should inconsistencies between the Pinelands Comprehensive Management Plan and DEP's Rules on Coastal Resources and Development Policies be identified, the Pinelands Commission and [DEP] shall work together to make the two sets of policies more complementary . . . . [T]o ensure success of the cooperative application review and comment procedures, [the two agencies] shall meet periodically . . . to discuss permit review coordination, specific policies and their interpretation, and growth area designation inconsistencies. . . .

 

Indeed, the CMP Rules on endangered or threatened wildlife and habitat are similar to those under N.J.A.C. 7:7E-3.38. N.J.A.C. 7:50-6.33 states that "[n]o development shall be carried out unless it is designed to avoid irreversible adverse impacts on habitats that are critical to the survival of any local populations of those threatened or endangered animal species[.]" And N.J.A.C. 7:50-6.34 states that "[a]ll development of other authorized activity shall be carried out in a manner which avoids disturbance of fish and wildlife habitats that are essential to the continued nesting, resting, breeding and feeding of significant populations of fish and wildlife in the Pinelands." Thus, when DEP finds that an application meets the CZM Rules, it is inferable from the MOA's intent that the project also will meet the CMP Rules.

Of course, whether Jaylin will need additional approvals from the Commission for the off-site mitigation parcels, which are within the Pinelands National Reserve and not in CAFRA area, and therefore within the Commission's exclusive jurisdiction, does not bear on whether DEP properly granted the CAFRA permit. Although DEP agreed in its settlement agreement not to seek additional permits for Jaylin's habitat enhancements, DLUR's 2012 Environmental Report states that Jaylin has submitted an application to the Commission for a three-lot subdivision of its 89.3 acre mitigation lot.

We therefore reject appellants' arguments that DEP failed to consider the Commission's recommendations and erred by failing to apply the CMP Rules directly to Jaylin's revised application.

 

V. NOTICE

Appellants also challenge DEP's grant of the CAFRA permit because of deficient public notice, that is, neither the agency nor Jaylin provided any notice of the revised application or the settlement process to the property owners within 200 feet of the mitigation parcels adjacent to the construction parcel or within 200 feet of the off-site mitigation parcels.17 DEP and Jaylin acknowledge that no notice was sent to the property owners near or adjacent to any of the properties planned for mitigation and snake habitat enhancement.

The general test for adequacy of notice in terms of satisfying the due process clause of the Fourteenth Amendment is set forth in Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 657, 94 L. Ed. 865, 873 (1950): "An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections."

In Rinaldo v. RLR Investment, LLC, 387 N.J. Super. 387, 391-92 (App. Div. 2006), we considered whether an applicant for a freshwater wetlands permit, who proposed to mitigate the adverse impacts on the development site with an off-site location, must give notice to the owners of property within 200 feet of the off-site mitigation site. The appellants, landowners within 200 feet of the off-site mitigation site, received no notice of the application. Id. at 402. We concluded that such notice was required if the proposed wetlands mitigation project involved the disturbance of existing wetlands, as that would constitute "regulated activity" for which a permit still was required under the FWPA, even if conducted solely for mitigation purposes. Ibid.

Thereafter, DEP promulgated regulations establishing distinct requirements for all mitigation proposals in N.J.A.C. 7:7A-15.11, and requiring that notice of FWPA permit applications be sent to property owners near off-site mitigation parcels, N.J.A.C. 7:7A-10.8(i).

Rinaldo, however, concerned the FWPA and not CAFRA. CAFRA and the CPP Rules mention no notice requirements for off-site parcels associated with a CAFRA application.

To the extent appellants take issue with notice of the 2009 revised application, suffice it to say that application is not associated with the challenged CAFRA permit. Jaylin submitted a second revised permit application on December 1, 2010, that resulted in the permit issued. That followed a settlement agreement reached by the parties which, in turn, was subject to final review and public notice and comment. In this regard, N.J.A.C. 7:7-5.4(c) and (d) delineate the notice requirements when a subsequent settlement is reached between DEP and an applicant appealing a permit decision:

(c) Notice of a proposed settlement which is arrived at pursuant to this section shall be published in the DEP Bulletin, and shall be provided to the clerk of the municipality in which the proposed development is located and to any interested third party who commented on the project in writing or at the public hearing (if one was held), and any interested person shall have 10 days from the date of publication in the DEP Bulletin to comment on a proposed settlement.

 

(d) The Department shall publish in the DEP Bulletin notice of any settlement, including a permit, which is arrived at pursuant to this section.

DEP published the notice of intent to settle in the DEP Bulletin, and notice was sent to interested parties who had commented on the project, in compliance with the public notice requirements of N.J.A.C. 7:7-5.4. Moreover, comments were submitted on the settlement documents and plans, which included references to all the mitigation (habitat enhancement) properties.

Appellants nevertheless rely on N.J.A.C. 7:7-4.5(g) as "the relevant [notice] provision" governing CAFRA's permitting process to support their claim that the notices failed to reference the habitat enhancement properties and were not sent to property owners within 200 feet of those parcels. To be sure, the permitting process under CAFRA allows for public participation. The statute requires DEP to "provide for a thirty-day comment period and [] provide sufficient public notice as to the commencement of the comment period." N.J.S.A. 13:19-9(a). The CAFRA regulations, N.J.A.C. 7:7-4.5(g), and the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-12, prescribe the manner in which public notice of the public comment period should be provided. N.J.A.C. 7:7-4.5(g) (requiring the applicant to give "public notice of the public comment period pursuant to [N.J.S.A. 40:55D-12.]"). Thus, public notice shall be given by publication in the official newspaper of the municipality and also be provided to owners of all real property within 200 feet in all directions of the property which is the subject of the hearing. N.J.S.A. 40:55-12(a) and (b).

Moreover, N.J.A.C. 7:7-4.5(g)(1)-(2) describes the content of the notice and, in this regard, speaks in terms of "development." In the context of an application under CAFRA, "development," for which a coastal permit is required, means the "construction, relocation, or enlargement of any building or structure and all site preparation therefor, the grading, excavation or filling on beaches or dunes, and shall include residential development, commercial development, industrial development, and public development[.]" N.J.S.A. 13:19-3. Habitat enhancement does not come squarely within that definition, nor does it fit into the CPP Rule governing "Activities for Which a Permit is Required," N.J.A.C. 7:7-2.1.18 As such, it need not have been described in the public notices which otherwise properly identified the commercial "development" comprising Jaylin's 2010 permit application.

For the very same reasons, we conclude that notices were properly provided to the property owners closest to the commercial development. Furthermore, as appellants themselves acknowledge, all but one of the mitigation parcels are "outside of . . . DEP jurisdiction," not regulated by the agency, and therefore not subject to the notice provisions of N.J.A.C. 7:7-4.5. As for the mitigation parcels across the Conrail right-of-way from Jaylin's property and within the Coastal Area governed by CAFRA, as already noted, nothing in the record suggests that the habitat enhancements planned thereon constitute "development" so as to trigger CAFRA's public notice requirements. N.J.A.C. 7:7-1.3; N.J.A.C. 7:7-4.5(g)(1)-(2). In any event, all surrounding property owners of this parcel received written notice.

In sum, appellants and other interested parties fully participated in the public process and had more than sufficient opportunity to voice their objections and contest the merits of Jaylin's application. Indeed, appellants make no claim that they themselves did not receive notice but only now belatedly make that claim on behalf of neighbors of off-site parcels not even within the DEP's regulatory jurisdiction. Of course, if the enhancements required by the permit will in turn require Pinelands Commission approval, then presumably there will be a separate process for such activities and any required notice will be provided. We conclude appellants were afforded all the process due. In re Freshwater Gen. Permit No. 7, 405 N.J. Super. 204, 214 (App. Div.), certif. denied, 199 N.J. 132 (2009).

 

VI. IMPERVIOUS COVERAGE LIMITS, N.J.A.C. 7:7E-5B

Critical to DEP's 2012 Permit Approval was the agency's finding that the Toms River portion of the site is located within the Toms River Coastal Regional Center. This designation allowed an eighty percent impervious cover percentage on that portion of the tract, rather than the otherwise permissible thirty percent coverage available in a Coastal Suburban Planning Area, which designation applies to the Manchester Township portion of the construction site19 and underlies Jaylin's entire property. Appellants challenge that determination as violative of the maximum limit allowed for that location by operation of N.J.A.C. 7:7E-5B.1 to -5B.6. Appellants argue that DEP's most recent ruling contradicts the agency's 2010 permit denial, which concluded that the Toms River Coastal Regional Center designation expired in February 2005 and had not been extended by virtue of the 2008 Permit Extension Act, N.J.S.A. 40:55D-136.1 to -136.6 (PEA), because the development site contains wetlands and threatened and endangered species habitat and is "environmentally sensitive" property, excluded from PEA coverage. Therefore, the development site is properly classified as the Coastal Suburban Planning zone, with a thirty percent impervious coverage limitation and not the eighty percent impervious coverage sought by Jaylin.

Determining the impervious limits for the site in question is complex, fact-intensive and sensitive, and reliant upon a provision of the PEA not heretofore judicially interpreted. Therefore, some background is in order.

The DEP's CZM Rules, N.J.A.C. 7:7E-5B.1 to 5B.6, limit the percentage of land in a site in the CAFRA area that can be covered with buildings, roads and other impervious structures. N.J.A.C. 7:7E-5B.4; N.J.A.C. 7:7E-1.8. These limits are based on where the site is located on the CAFRA Planning Map, that is, in which of the following land area categories it sits: (1) a coastal center; (2) a Coastal Planning Area; (3) a CAFRA center, CAFRA core, or CAFRA node; and/or (4) a military installation. N.J.A.C. 7:7E-5B.1(a); N.J.A.C. 7:7E-5.3(a); N.J.A.C. 7:7E-5.4.

Higher percentages are allowed in more developed areas. For example, the impervious cover limit is: (1) eighty percent for the Coastal Metropolitan Planning Area, CAFRA and coastal regional centers, CAFRA cores, and CAFRA nodes; (2) seventy percent for CAFRA and coastal towns; (3) thirty percent for the Coastal Suburban Planning Area within a sewer service area; (4) five percent for the Coastal Suburban Planning Area outside a sewer service area; and (5) three percent for the Coastal Environmentally Sensitive Planning Area. N.J.A.C. 7:7E-5B.4. Even if the impervious cover for a project is acceptable within N.J.A.C. 7:7E-5B, DEP still "may reject or conditionally approve" a permit application "as reasonably necessary to," among other things, "[p]rotect . . . wildlife." N.J.A.C. 7:7E-6.2(a)(2).

It is undisputed that Jaylin's construction site is located on the CAFRA Planning Map within the boundaries of a "Coastal Suburban Planning Area" and within a sewer service area, subjecting it to a thirty percent impervious cover limit. N.J.A.C. 7:7E-5B.4. In addition, when Jaylin submitted its original 2004 application, the Toms River Township portion of its construction site was also listed within the boundaries of the "Toms River Coastal Regional Center," subjecting it to an eighty percent impervious cover limit. N.J.A.C. 7:7E-5B.4; 32 N.J.R. 503(a) (Feb. 7, 2000) (DEP adopts Toms River Coastal Regional Center). Significant for present purposes, if a site such as Jaylin's proposed development has portions in one or more of the land area categories, only the cover limits appropriate to each category apply to that particular portion. N.J.A.C. 7:7E-5B.3(i).

DEP used the community planning boundaries approved by the State Planning Commission in 1999 for the original land use boundaries on its CAFRA Planning Map. N.J.A.C. 7:7E-5B.3(a). See In re Protest of Coastal Permit Program Rules, supra, 354 N.J. Super. at 318-27 (detailed history). When the State Planning Commission approves any new or changed boundary, DEP is required to evaluate that boundary under CAFRA and then publish a notice of its intention to accept it, reject it or promulgate a revised boundary for the CAFRA Planning Map. N.J.A.C. 7:7E-5B.3(b). The changed boundary then becomes operative thirty days from the date of publication. N.J.A.C. 7:7E-5B.3(c).

On February 7, 2005, the boundaries for the Toms River Regional Coastal Center expired, along with the boundaries for all coastal centers not located on barrier islands, oceanfront spits, or peninsulas in the CAFRA area. N.J.A.C. 7:7E-5B.6(a); 38 N.J.R. 928(c) (Feb. 6, 2006).

One year later, on February 6, 2006, DEP re-established those coastal center boundaries, and divided them into two new classes of coastal centers: mainland and non-mainland. N.J.A.C. 7:7E-5B.6(a); 38 N.J.R. 928(c), supra. Thus, the "mainland" Toms River Regional Coastal Center, with an eighty percent impervious cover limit, now applied to the portion of Jaylin's construction site in Toms River Township. 38 N.J.R. 928(c), supra.

Most critically, however, during the February 6, 2006 adoption of the mainland coastal centers, DEP enumerated six specific areas (including wetlands, endangered and threatened wildlife species habitats mapped on DEP's Landscape Maps and Coastal Critical Environmental Sites mapped on the CAFRA Planning Map) that could not be a part of any mainland coastal center's boundaries. N.J.A.C. 7:7E-5B.6(e). Development in any of those areas would then be limited to the impervious cover limit of the underlying coastal planning area, here, the thirty percent Coastal Suburban Planning Area. N.J.A.C. 7:7E-5B.6(e); N.J.A.C. 7:7E-5B.6(g)(2). We have found no information in the record or in the New Jersey Register that DEP ever applied that regulation to the mainland Toms River Coastal Regional Center.

Nevertheless, if a CAFRA permit application (like Jaylin's 2004 application)20 had been filed before February 7, 2005, had been assigned a DEP project number, had been deemed complete for final agency review before March 15, 2006, and had proposed development in a mainland coastal center that had not expired, the applicant could use the previously expired coastal center's boundaries and limit for impervious cover under N.J.A.C. 7:7E-5B.4, regardless of the six enumerated areas excluded from the mainland coastal center. N.J.A.C. 7:7E-5B.6(f).21

Otherwise, if the application was filed after February 7, 2005 (like Jaylin's 2009 and 2010 applications), and was proposing development in a mainland coastal center, the applicant could use the impervious cover for that mainland coastal center only if the proposed development would take place inside that center's boundaries and not within one of the six enumerated areas and if the mainland coastal center's boundaries had not expired. N.J.A.C. 7:7E-5B.6(g)(1). If any part of the proposed development would be outside the mainland coastal center's boundaries or within one of the six enumerated areas, the applicant would have to use the impervious limits for the underlying Coastal Planning Area. N.J.A.C. 7:7E-5B.6(g)(2).22

On March 15, 2007, the boundaries of all mainland coastal centers expired. 39 N.J.R. 2018(b) (May 21, 2007) (listing expiration of Toms River Coastal Regional Center in Dover Township, Ocean County). DEP instructed permit applicants that "[t]he impervious cover limits . . . of the underlying Coastal Planning Area apply to the area encompassed by the former mainland coastal center boundary." Ibid.

Consequently, DLUR concluded in its March 2010 denial of Jaylin's 2009 application: (1) Jaylin's construction site had lost its mainland Toms River Coastal Regional Center designation when it expired, and impervious cover limits now were subject to the thirty percent for the underlying Coastal Suburban Planning Area; (2) the project improperly proposed impervious cover over thirty percent; and (3) the Permit Extension Act of 2008 (PEA), N.J.S.A. 40:55D-136.1 to -136.6, was not available to delay expiration of the mainland coastal regional center.

However, when DLUR approved Jaylin's 2010 revised application and issued the CAFRA permit in April 2012, it disregarded its previous conclusions and authorized Jaylin to develop the Toms River Township portion of its property up to an eighty percent impervious cover limit. DLUR relied on Jaylin's 2004 application, on N.J.A.C. 7:7E-5B.6(f) and, contrary to its previous position, on the PEA.

A. APPLICATION OF N.J.A.C. 7:7E-5B.6(f)

To be sure, Jaylin's 2004 CAFRA application fits into N.J.A.C. 7:7E-5B.6(f), which states:

For purposes of any CAFRA permit application that was received by the Department prior to February 7, 2005, assigned an agency project number pursuant to N.J.A.C. 7:7-4.4(a)1i or ii, and proposes a development in a mainland coastal center . . . that has not expired . . . , the impervious cover limits . . . shall be determined in accordance with N.J.A.C. 7:7E-5B.4(d) [(permitting use of coastal regional centers for impervious cover)] . . . , provided the CAFRA permit application is complete for final review pursuant to N.J.A.C. 7:7-4.6 prior to March 15, 2006.

 

That is, Jaylin had filed its 2004 application before February 7, 2005, had been assigned a DEP project number, had been deemed complete for final agency review before March 15, 2006, and had proposed development in a mainland coastal center that was not expired at that time.

We conclude, however, that it was error for DEP to have relied on Jaylin's original 2004 application, which had been denied in June 2006, to qualify the applicant for the eighty percent impervious cover limit of N.J.A.C. 7:7E-5B.4.

In its 2012 Environmental Report, DEP explained that the impervious cover requirement and coastal center designation existing at the time of the initial permit application applied because the revised permit application was submitted as part of the parties' continuing settlement discussions to resolve the initial permit denial, which was also pending appeal. In other words, according to DEP, Jaylin's 2009 and 2010 applications "relate[d] back" to its original 2004 application, which was "kept alive" by Jaylin's pending appeal of DEP's 2006 denial and by the agency's "alternate dispute resolution" (ADR) mechanism. We disagree.

First, after DLUR formally rejected Jaylin's 2004 application, Jaylin filed a "new" application in 2009 and revised that application in 2010. That is, in September 2007, DEP's ODR ended ADR with Jaylin on the 2004 application, declaring that they were "unable to reach an agreement" and requesting that Jaylin's appeal of DLUR's permit denial be sent to the OAL for a hearing. The transfer never happened; instead, Jaylin participated in a pre-application conference with DEP, and the agency's representative "noted that the anticipated application would be a new application and would be reviewed under the revised design and the current regulations." In fact, Jaylin's counsel declared in a cover letter to its 2009 application that the application was "a resubmission" which "represents a significantly revised and reduced project that is proposed as a result of the 2006 denial." And even though DEP now labels Jaylin's 2009 application its "first revised permit application," DLUR referred to Jaylin's 2009 application in its 2012 Environmental Report, as "a second CAFRA permit application." N.J.A.C. 7:7-4.9(b), governing the withdrawal, resubmission, and amendment of applications, states:

If an application is denied, the applicant may resubmit an application for a revised project of the same or reduced scope on the same site . . . . The resubmitted application will be treated as a new application, although references may be made to the previously submitted application. An applicant who wishes to appeal the denial, and at the same time revise the application may do so in accordance with procedures in N.J.A.C. 7:7-5.1 [(which covers hearing requests)].

 

[(emphasis added).]

 

Furthermore, DEP assigned Jaylin's 2009 application a project file number different from its 2004 application. N.J.A.C. 7:7-4.4(a)(1). This is in contrast to when the agency applied the same 2009 application number to the revised 2010 application that Jaylin submitted during its settlement negotiations with DEP after it had requested a hearing or ADR on DEP's 2010 denial. N.J.A.C. 7:7-5.4(a), governing settlements in response to a hearing request, states: "Any applicant who has requested a hearing on a permit decision . . . may, at any time prior to rendering of an initial decision by the [OAL], submit a revised application for the purpose of negotiating a settlement."

Second, Jaylin had no vested rights in DLUR's using the original coastal center boundaries. The December 2011 stipulation of settlement gave Jaylin no such expectation as to the application of impervious cover limits. Indeed, it could not do so. Dragon, supra, 405 N.J. Super. at 491-92. As we have explained, the agency had denied Jaylin's 2004 application, which DLUR noted in the stipulation along with Jaylin's submissions of revised and then amended applications. In fact, the stipulation declares that "the Department anticipates issuance of the requisite permits based on [Jaylin]'s 2009 revised submission." Also, Jaylin did not receive its local preliminary or final municipal approvals until 2010. Cf. Riggs v. Long Beach Twp., 101 N.J. 515, 521 (1986) ("[W]hen one party has obtained a vested right under the prior law, the later law may not be applied if this will divest that right.").

DEP's reliance on In re CAFRA Permit No. 87-0959-5 Issued to Gateway Assocs., supra, 152 N.J. at 287, to support its position that DLUR correctly issued the 2012 CAFRA permit by applying N.J.A.C. 7:7E-5B.6(f) to Jaylin's 2004 application is misplaced. In Gateway, supra, after issuing a permit, DEP asked the permit holder to file an application for modification because the policy had changed and the project no longer required intercept parking. Id. at 302. The permit holder did so, and the court, although declining to reach the issue due to the appeal's lack of timeliness, id. at 306, could not "conclude that the DEP abused its discretion by deciding to review only the modifications to Gateway's project" and not the original permit application that had been filed. Id. at 304.

Accordingly, we hold that DEP erred by relying on Jaylin's 2004 application and then by applying the impervious cover limits allowed by N.J.A.C. 7:7E-5B.6(f) to issue the CAFRA permit. Instead, DEP should have applied the impervious cover limits in accordance with N.J.A.C. 7:7E-5B.6(g) to review the project proposed by Jaylin after 2005.

B. APPLICATION OF N.J.A.C. 7:7E-5B.6(g)

Given that the impervious cover limits allowed by N.J.A.C. 7:7E-5B.6(f) were inapplicable to Jaylin's project (since DEP could not rely on Jaylin's 2004 permit application), and because, for reasons that follow, by virtue of the PEA, the mainland Toms River Coastal Regional Center had not expired when Jaylin submitted its 2009 application and 2010 revised application, DEP should have applied the impervious cover limits in N.J.A.C. 7:7E-5B.6(g) to review the project.

N.J.A.C. 7:7E-5B.6(g) states:

For purposes of any CAFRA permit application that was received by the Department after February 6, 2005 and proposes a development in a mainland coastal center . . . that has not expired . . .:

 

1. The impervious cover limits . . . for those portions of the site located within the mainland coastal center shall be determined [for the coastal regional center] . . . , provided no portion of the proposed development . . . is located outside the boundaries of the mainland coastal center, or in one of the [six enumerated] areas identified [in N.J.A.C. 7:7E-5B.6(e)].

 

2. If any portion of the proposed development . . . is located outside of the mainland coastal center boundaries, or in one of the [six enumerated] areas identified [in N.J.A.C. 7:7E-5B.6(e)], then the impervious cover limits . . . for the entire development shall be determined . . . for the appropriate Coastal Planning Area.

 

[(emphasis added).]

 

Here, we find that the provisions of N.J.A.C. 7:7E-5B.6(g) were applicable to Jaylin's project and 2009 application and 2010 revised application, because DEP received those applications after February 2005, and because, as DEP, Jaylin and appellant EELC correctly assert, the PEA had prevented the boundaries of the mainland Toms River Coastal Regional Center from expiring on March 15, 2007.

That is, on September 6, 2008, the Legislature adopted the PEA, which "automatically suspend[ed]" government "approval[s]" related to the physical "development" of property from running out during the "extension period," defined at present as "beginning January 1, 2007 and continuing through December 31, 2014." N.J.S.A. 40:55D-136.3 and -136.4(a).23

Under each version, the PEA broadly states:

"Approval" means, except as otherwise provided in [N.J.S.A. 40:55D-136.4(b)], any . . . permit issued and center designations pursuant to [CAFRA], . . . center designations pursuant to the "State Planning Act". . . . [and] any municipal, county, regional, or State approval or permit granted under the general authority conferred by State law or rule or regulation, or any other government authorization of any development application or any permit related thereto whether that authorization is in the form of a permit, approval, license, certification, permission, determination, interpretation, exemption, variance, exception, waiver, letter of interpretation, no further action letter, agreement or any other executive or administrative decision which allows a development or governmental project to proceed.

 

[N.J.S.A. 40:55D-136.3 (emphasis added).]

 

According to that definition, "[a]pproval" includes center designations directly and is not limited, as appellants suggest, to actual agency permits or authorizations.24 We accord statutory language its ordinary meaning. Town of Morristown v. Women's Club of Morristown, 124 N.J. 605, 610 (1991). Indeed, as expressly stated in the definition, the PEA extended center designations pursuant to CAFRA as well as center designations made pursuant to the State Planning Act, N.J.S.A. 40:55D-136.3. The clear wording of the statute encompasses center designations and any contrary construction limiting the PEA to actual permits and approvals would render nugatory the additional terms employed in the definition of "approval." On this score, it is not proper statutory construction to render a provision completely meaningless or superfluous. Bergen Commer. Bank v. Sisler, 157 N.J. 188, 204 (1999).

Appellants further argue that the PEA does not apply here because the development site contains both wetlands and threatened and endangered species habitat and thus comes within the "environmentally sensitive" property exclusion of N.J.S.A. 40:55D-136.4(b)(3), which provides: "Nothing [in this act] shall be deemed to extend or purport to extend . . . any permit or approval issued within any environmentally sensitive area

. . . ." However, the PEA specifically excludes from the definition of "environmentally sensitive area" "regional growth areas . . . designated in the comprehensive management plan [CMP] prepared and adopted by the Pinelands Commission . . . or similar areas designated by the [DEP]." N.J.S.A. 40:55D-136.3. Jaylin's proposed site is located in a regional growth area and a suburban planning area and thus comes within the purview of the PEA.

In sum, because the limits allowed by N.J.A.C. 7:7E-5B.6(f) were inapplicable to Jaylin's project and because the PEA prevented the boundaries of the mainland Toms River Coastal Regional Center from expiring on March 15, 2007, we conclude that DLUR should have reviewed Jaylin's proposed project in its 2010 revised application under the impervious cover limits allowed by N.J.A.C. 7:7E-5B.6(g), as the agency did in its March 16, 2010 denial of Jaylin's 2009 revised application.25

The difficulty in applying N.J.A.C. 7:7E-5B.6(g) here, however, is that, in our view, the actual boundaries of the readopted (and extended by the PEA) mainland Toms River Coastal Regional Center, and therefore the boundaries of the Coastal Suburban Planning Area, are unclear. It appears from this record that DEP never determined, in the context of its review of Jaylin's 2010 revised permit application, whether any portion of the proposed "development" lies outside the boundaries of the mainland coastal center or whether any of the six enumerated areas listed in N.J.A.C. 7:7E-5B.6(e), which cannot be a part of any mainland coastal center, were found in the readopted mainland Toms River Coastal Regional Center before its March 2007 expiration and PEA extension. In addition, the agency also never determined, in this very same context, whether any of those six areas were found specifically on Jaylin's property within the mainland coastal center. These findings are critical because, pursuant to N.J.A.C. 7:7E-5B.6(g)(1) and (2), they determine in turn the applicable impervious cover limits. As noted, if any portion of the proposed development is located outside of the center boundaries, or one of the areas identified at (e), then the impervious cover limits are determined in accordance with N.J.A.C. 7:7E-5B.4(e) for the appropriate Coastal Planning Area, which in this case is a Coastal Suburban Planning Area, subject to impervious cover limits of thirty percent.

DEP, of course, is in the best position to evaluate the proposal under the applicable regulation. "In general, available and appropriate 'administrative remedies should be fully explored before judicial action is sanctioned.'" Abbott v. Burke, 100 N.J. 269, 296 (1985) (quoting Garrow v. Elizabeth Gen. Hosp. & Dispensary, 79 N.J. 549, 558 (1979)). Accordingly, we reverse issuance of the permit and remand the matter to DEP with instructions to apply N.J.A.C. 7:7E-5B.6(e) and determine whether the applicable mainland coastal center's boundaries were properly set when they were readopted, and then to apply the appropriate impervious cover limits pursuant to N.J.A.C. 7:7E-5B.6(g) and N.J.A.C. 7:7E-5B.4 to Jaylin's latest proposal, including determining whether any of the six areas listed in N.J.A.C. 7:7E-5B.6(e) exist on Jaylin's property, before issuing a CAFRA permit.

Reversed and remanded. We do not retain jurisdiction.

 

1 New Jersey Conservation Foundation, American Littoral Society, Sierra Club - New Jersey Chapter, and Save Barnegat Bay (A-4883-11) (collectively EELC or Eastern Environmental Law Center).

2 The Pinelands Preservation Alliance (PPA) and Michael Perlmutter (A-4880-11).

3 Also calendared back-to-back with the present appeals are parallel actions challenging the validity of Jaylin's municipal approvals: Perlmutter v. Township of Toms River Planning Bd., Docket No. A-2814-11, and Perlmutter v. Jaylin Holdings, LLC, Docket No. A-2958-12; and a related action, Jaylin Holdings, LLC v. Perlmutter, Docket No. A-5958-12.

4 The Township of Toms River was known as Dover Township until November 14, 2006.

5 At Jaylin's request, DLUR determined in May 2004 that there were freshwater wetlands of intermediate resource value on and adjacent to the proposed activity, requiring a transition area or buffer of fifty feet.

6 The ODR wrote: "The DFW has determined that an adverse impact to T&E [threatened and endangered species] habitat will occur if the project is built, and New Jersey's Coastal Zone Management Rule for Endangered or Threatened Wildlife or Plant Species habitats does not contemplate mitigation since adverse impacts are specifically prohibited."

7 DEP ultimately granted Jaylin's request for a FWPA general permit, and appellants do not appeal that approval.

8 Meanwhile, on October 6, 2010, the Toms River Planning Board approved Jaylin's application for preliminary and final major site plan approval and various dimensional variances. On November 1, 2010, the Manchester Planning Board approved the project.

9 As noted, related appeals challenging the local municipal approvals were also filed (Docket No. A-2814-11 and Docket No. A-2958-12).

10 In its 2012 Responses to Public Comments, DLUR explained:

[T]he applicant proposes the permanent preservation of 20.9 acres of

on-site forested/vegetated open space to serve as a corridor linking the on-site habitat with the thousands of acres of adjoining habitat located directly across the Conrail railroad ROW [right-of-way]. Within this corridor, the applicant proposes northern pine snake habitat enhancement initiatives. Directly across the Conrail ROW, the applicant purchased 21 acres that border the lands that are presently pine snake habitat and are planned to be preserved pursuant to the Heritage Minerals settlement. This 21-acre parcel provides a direct link between the hibernaculum and the pine snake habitat preserved onsite and the existing pine snake habitat that is on the Heritage Minerals parcel, planned for future permanent preservation. Moreover, this mitigation property includes habitat characteristics that are preferred by northern pine snake . . . . The mitigation property fills a crucial gap that results in an overall contiguous area of more than 21 square miles of preserved lands.

11 As part of its 2012 Responses, DLUR further explained:

The applicant has purchased five outparcels that will also fill gaps in the overall protected lands in Manchester Township. These properties lie beyond the home-range of the two snakes documented on the development site, but they will contribute significantly to the protection of the northern pine snakes in the northeastern region of the Pinelands. The acquisition of these properties prevents further curtailment of pine snake habitat and diminishes the risk of limiting genetic diversity among pine snakes in this region due to isolation. Thus, the applicant has gone to extraordinary lengths to ensure the protection of the northern pine snake in accord with the Department's mission . . . .

12 "Special Areas are areas that are so naturally valuable, important for human use, hazardous, sensitive to impact, or particular in their planning requirements, as to merit focused attention and special management rules." N.J.A.C. 7:7E-3.1(a).

13 In its 2012 Responses to Public Comments, expressing concern that the proposed mitigation properties will not support the local pine snake population, DLUR wrote:

 

For the purposes of assessing the offsetting measures proposed by the applicant, the Department considered the losses and benefits to pine snake habitat within the population of pine snakes located in the northeast region of Ocean County. A "population" is generally understood to be the number of individuals within a given area. It is acceptable (and reasonable) to take a broad approach in evaluating the habitat losses or gains to a particular population.

14 To be sure, in its denial of Jaylin's 2004 application, DEP declared that N.J.A.C. 7:7E-3.38 "does not contemplate mitigation since adverse impacts are specifically prohibited." To the extent the agency now suggests its mitigation review of Jaylin's proposal did not include the off-site parcels, we disagree. In its review of Jaylin's later applications, DEP explained that it considered and used "only the proposed habitat enhancements on the lands permanently preserved by the applicants" to "offset the estimated loss in habitat value that would occur in the development area." In other words, DEP did include in its review those areas where Jaylin proposed to construct snake habitat enhancements, and many of these areas were on the mitigation parcels and not on the construction site itself. As already noted, we find no error with the agency's approach to including the mitigation parcels in its review.

15 The Committee was established under The Endangered and Nongame Species Conservation Act, N.J.S.A. 23:2A-1 to -15. N.J.S.A. 23:2A-7(e) states: "[t]he commissioner shall appoint a committee of experts to advise and assist the commissioner in carrying out the intent of this act. Said experts shall include persons actively involved in the conservation of wildlife." N.J.A.C. 7:25-4.18 states that the eleven members of the Committee, N.J.A.C. 7:25-4.18(a), "shall advise and assist the Commissioner in matters related to the intent of 'The Endangered and Nongame Species Act,'" N.J.A.C. 7:25-4.18(b).

16 The U.S. Fish and Wildlife Service's Habitat Evaluation Procedures (HEP) is one of "the most widely used approaches," and "was developed as an impact assessment tool." N.J. Chapter of Nat'l Ass'n of Indus. & Office Parks, supra, 241 N.J. Super. at 164-65. It "is an accounting method, in which the value of each habitat type for each of a series of evaluation species is expressed in terms of habitat units (HUs)." Gould v. Deschutes Cnty., 227 P.3d 758, 760 (Or. Ct. App. 2010).

17 Appellants make the related argument that the public notice soliciting public comment on Jaylin's 2009 permit application referenced only the forty-three acre development site and no mention was made of the additional mitigation properties then included.

18 In 2006, DEP promulgated a coastal general permit for habitat creation, restoration, enhancement, and living shoreline activities. N.J.A.C. 7:7-7.29(a) (requiring official sponsorship); 38 N.J.R. 1657(a) (Apr. 17, 2006).

19 The Manchester Township portion of the site was outside this Coastal Regional Center and therefore remained subject to the underlying Coastal Suburban Planning Area's thirty percent cover limit.

20 In the 2012 permit decision at issue here, DEP had calculated the total allowable impervious cover for Jaylin's development to be 18.836 acres. Jaylin proposed a total of 14.1075 acres of impervious cover: 11.960 acres, or 76.35%, of impervious cover in the Township of Toms River; and 2.1475 acres, or 10.22%, of impervious cover in the Suburban Planning Area of Manchester Township.

21 Accordingly, in its June 2006 denial of Jaylin's 2004 application, DEP determined that the Toms River portion of the property was "governed by the impervious cover percentages allowed by . . . . Toms River Coastal Regional Center," which is eighty percent. Again, this determination was based on the application having been received by DEP prior to February 7, 2005, and being deemed complete prior to March 15, 2006.

22 As noted, the underlying planning area across the entire site is a Coastal Suburban Planning Area, which authorizes a maximum of thirty percent impervious cover.

23 Initially, on September 6, 2008, the "extension period" was defined as "beginning January 1, 2007 and continuing through July 1, 2010." L. 2008, c. 78, 3. On January 18, 2010, it was extended through December 31, 2012. L. 2009, c. 336, 1. On September 19, 2012, it was extended through December 31, 2014. L. 2012, c. 48, 2. The Act further states that no approval will be extended "more than six months beyond the conclusion of the extension period," or now until June 30, 2015, depending on the original expiration date of the approval in question. N.J.S.A. 40:55D-136.4(a).

24 Since Toms River Township submitted its application for plan endorsement to the State Planning Commission in May 2006, we find that the exception to extension in N.J.S.A. 40:55D-136.4(b)(7) does not apply to preclude any extension of the mainland Toms River Coastal Regional Center designation. That provision declares that

[n]othing . . . shall be deemed to extend or purport to extend:

 

. . . .

 

(7) any coastal center designated pursuant to [CAFRA] that as of March 15, 2007 (a) had not submitted an application for plan endorsement to the State Planning Commission, and (b) was not in compliance with the provisions of the Coastal Zone Management Rules at N.J.A.C. 7:7E-5B.6[.]

 

[N.J.S.A. 40:55D-136.4(b)(7).]

25 In its March 16, 2010 decision not to approve Jaylin's 2009 permit application, the DLUR, relying on N.J.A.C. 7:7E-5B.6(g), found that the project's "impervious coverage shall be determined by N.J.A.C. 7:7E-5B.4(e)" "for the appropriate Coastal Planning Area," which in this case is a Coastal Suburban Planning Area, limiting impervious cover to thirty percent.