SEVEN MILE ISLAND, L.L.C. v. PLANNING BOARD OF BOROUGH OF AVALON

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5270-07T35270-07T3

SEVEN MILE ISLAND, L.L.C.,

Plaintiff-Appellant/

Cross-Respondent,

v.

PLANNING BOARD OF BOROUGH

OF AVALON and THE BOROUGH

OF AVALON,

Defendants-Respondents/

Cross-Appellants.

_________________________________

 

Argued June 1, 2009 - Decided

Before Judges Lisa, Reisner and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-143-08.

Stephen Hankin argued the cause for appellant/cross-respondent (Hankin, Sandman & Palladino, attorneys; Mr. Hankin, on the brief).

Dean R. Marcolongo argued the cause for respondent/cross-appellant Planning Board of Borough of Avalon (Law Office of Nathan Van Embden, attorneys; Mr. Marcolongo, on the brief).

Stephen D. Barse argued the cause for respondent/cross-appellant Borough of Avalon (Gruccio, Pepper, DeSanto & Ruth, P.A., attorneys; Mr. Barse, on the brief).

PER CURIAM

Plaintiff, Seven Mile Island, L.L.C., appeals from trial court orders dated May 27, 2008 and January 8, 2009. Defendants, the Borough of Avalon and its Planning Board, cross-appeal from the January 8 order. We affirm in part and reverse in part.

This appeal presents three issues: whether the Borough of Avalon's beach protection ordinance (Ordinance No. 577-2006) is preempted by the Coastal Area Facility Review Act (CAFRA), N.J.S.A. 13:19-1 to -21; whether the beach protection ordinance, and a 2008 landscaping amendment to the zoning ordinance, are both preempted by the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163; and whether Avalon's prohibition on the construction of swimming pools in the beach dune area (the pool ordinance) is facially invalid. We conclude that the beach protection ordinance and the landscaping amendment are valid enactments, not preempted by CAFRA or by the MLUL, and that the pool ordinance is facially valid. We decline to address an as-applied challenge to the pool ordinance, because it is not ripe for our adjudication. That challenge may be rendered moot, depending on how the Borough Council construes the pool ordinance in the context of plaintiff's application now pending before the Council. However, even if the Council denies the application, plaintiff would still be required to litigate the issue in the trial court before pursuing an appeal with this court. See R. 4:69-6(b)(3).

I

We begin by reviewing the facts, the pertinent ordinances, and the history of this litigation.

A. The Challenged Ordinances

The Borough of Avalon is located on a barrier island known as Seven Mile Island. As a result of repeated storm damage, since 1968 the Borough has had an ordinance aimed at protecting its beaches and sand dunes. The 2006 amended version of Avalon's beach protection ordinance is the subject of this appeal. The ordinance recites the following legislative findings:

(a) The Borough of Avalon is situated on a barrier island . . . . Certain portions of the Beach and Dunes . . . have in the past suffered, and will continue to suffer . . . damage caused by storms and wind-driven storm tides . . . caus[ing] serious damage to public and private property and endanger[ing] the safety and welfare of the public. . . .

(b) The situation . . . has been so serious that many millions of dollars of both public and private funds have been expended for the replenishment of sand and vegetation, and erection of bulkheads, sand fences and other supportive structures intended to prevent encroachment by the ocean and Beach and Dunes erosion.

(c) Continuing Beach erosion . . . has created an immediate and imminent danger to persons and property in the Borough of Avalon by reason of the destruction of the sand barriers which protect the Borough's oceanfront. Consequently, it has become necessary to the health and welfare of the public to maintain the integrity of the system of Dunes and supportive structures on both public and private property within the Borough of Avalon.

(d) The interference with or the depletion of the Beach and Dunes tends to more easily permit encroachment by the ocean and, in the opinion of the governing body of the Borough of Avalon, the conditions recited above make it imperative that it regulate and control the disturbance, removal or redistribution of sand and/or vegetation on or from the Beach and Dunes.

(e) . . . [C]ertain procedural and substantive requirements set forth within the State Aid Agreement in the review of applications for development within the Beach Dune Area under the [Beach Protection] Ordinance . . . are incorporated herein.

[Ordinance No. 577-2006, amending Avalon, N.J., Code 9:10-1.]

Since 1994, the Borough has had an agreement (State Aid Agreement) with the State Department of Environmental Protection (DEP) under which the DEP provides Avalon with beach replenishment funds, in return for which the agency requires Avalon to maintain its beach protection ordinance. The Agreement also requires Avalon to submit all proposed amendments to DEP for approval; comply with DEP's substantive CAFRA regulations, N.J.A.C. 7:7E, governing coastal resources and development, public access, dunes, beaches, and erosion hazard areas; and submit all development proposals and variance applications to DEP "for comments at least one month prior to final consideration by the Municipality . . . [and] follow [DEP]'s comments and act accordingly."

In addition, the Agreement provides that "under no circumstances" and "[n]othwithstanding any other provisions of [its own] Ordinances," may Avalon allow "the construction of swimming pools, tennis courts or similar structures" in the dune area. If Avalon fails to comply with the agreement, it will have to return all monies received and will not be eligible for future funding.

Against the backdrop of these requirements, we review in some detail the substantive provisions adopted in Avalon's 2006 ordinance amendments, which DEP found "consistent with the requirements in the State Aid Agreement."

The ordinance amended Chapter 9 (Municipal Recreation Facilities) by re-designating the Beach Protection Ordinance as Sections 9:10-1 to -18. Section 9:10-3.1 prohibits "any person . . . to disturb, remove, or redistribute any sand and/or vegetation on or from privately owned property located within the Beach Dune Area," i.e., "[t]hose areas of the Borough of Avalon consisting of Beaches and/or Dunes, as defined" in the ordinance. Referencing the CAFRA regulations, "[b]eaches" are "[a]s defined within N.J.A.C. 7:7E-3.22(a)," and "[d]unes" are "[a]s defined in N.J.A.C. 7:7E-3.16(a)."

Section 9:10-3.2 contains three exceptions to the prohibition in Section 9:10-3.1:

(a) . . . [When] such disturbance, removal or redistribution [of any sand and/or vegetation] is necessary in order to repair or to renovate an existing improvement, such repair or renovation shall not result in any horizontal or vertical expansion of such improvement, and any sand and/or vegetation disturbed, removed, replaced or redistri-buted as a result of such activity shall be within the Line of Disturbance and shall be restored when such repair or renovation is completed.

(b) . . . [When] such disturbance, removal or redistribution [of any sand and/or vegetation] is necessary in order to replace any improvement, or portion thereof, for any reason whatsoever, as long as the replacement improvement does not represent a horizontal or vertical expansion of the area of the improvement to be replaced. In such event, the person seeking to make such improvement shall file an application pursuant to paragraph 9:10-4 below within one (1) year of the date of destruction or demolition of the improvement or portion thereof to be replaced, and the person seeking approval for such replacement improvement shall be required to demonstrate (i) that such replacement improvement will not result in a horizontal or vertical expansion of the area previously occupied by the replaced improvement, and (ii) any sand and/or vegetation disturbed, removed, replaced or redistributed as a result of such activity shall be within the Line of Disturbance, shall be the minimal amount necessary for the improvement, and shall be restored or replaced when such replacement is completed[; and]

(c) . . . [When] such disturbance, removal or redistribution [of any sand and/or vegetation] will result from any construction or reconstruction which is not governed by paragraph 9:10-3.2(a) or (b) above, the person seeking to make such improvement shall file an application pursuant to paragraph 9:10-4 below, and shall be required to demonstrate (i) that there is no practicable or feasible alterative to construction or reconstruction in any area other than the Beach Dune Area; (ii) that such construction or reconstruction will not cause significant, adverse, long-term impacts on the natural functioning of the Beach and Dunes system, either individually or in combination with other existing or proposed structures, land disturbances or activities; and (iii) any sand and/or vegetation disturbed, removed, replaced or redistributed as a result of such activity shall be within the Line of Disturbance, shall be the minimal amount necessary for the improvement, and shall be restored or replaced to the greatest extent possible when such construction or reconstruction is completed.

[Emphasis added.]

"Line of Disturbance" means

[a] line to be established by any person proposing to disturb, remove or redistribute any sand and/or vegetation within the Beach Dune Area . . . which shall demarcate both the area of the proposed improvement and the greater area of construction activity . . . and the area of which shall be limited to a maximum distance of six (6) feet beyond the outward face of each horizontal dimension of the proposed improvement.

Accordingly, applications for approval to disturb, remove or redistribute any sand and/or vegetation are required under Sections 9:10-3.2(b) and (c). Under Section 9:10-4, an applicant seeking such approval must submit, among other things:

(c) A concise statement of the construction activity for which approval is sought.

(d) The reasons for the construction.

(e) A plan containing all of the design elements which would be required for site plan review if such construction activity were subject to site plan approval . . . .

(f) A plan showing the location, description and amount of sand and/or vegetation to be disturbed, removed or redistributed.

(g) A plan showing the location, description and amount of sand and/or vegetation to be replaced and the type and location of any temporary or permanent fencing to be provided.

(h) A plan demonstrating compliance with the Borough Stormwater Management Ordinance, the Borough's Beach Nesting Bird Management Plan, and which identifies any path or other means of access to the Beach in conformance with state and federal laws.

(i) Plan showing the existing topographical cross-section of the property and the Beach and Dunes both on the property and oceanward extended from the northward and southward boundaries of the property to the mean low water line and a topographical cross-section of such areas after construction of the proposed improvement. Such plan shall be evaluated . . . to determine Beach Dune Area stability both before and after completion of the improvement.

Pursuant to Section 9:10-10, the applicant must pay a $1000 application fee, and must escrow $2500 with the Board "to be applied toward payment of the professional fees . . . in the review and consideration of that application."

The applicant has "the burden of producing competent evidence to demonstrate its right to relief" and the Borough "shall consider, at a minimum," various factors, including

(b) The size and type of the improvement sought.

(c) The location of the proposed improvement on the property.

. . . .

(f) The shore protection afforded by the Dunes in the unaltered state compared to the shore protection afforded by the proposed improvement.

. . . .

(i) The danger to life and property from flooding or erosion damage likely to occur as a result of the proposed improvement.

(j) The susceptibility of the property and proposed improvement to flood damage.

(k) The relationship of the proposed improvement to the comprehensive plan and flood plain management program for that area [; and]

(l) The expected height, velocity, duration and rate of rise and sediment transport of the flood waters and the effect of wave action expected at the property.

[Avalon, N.J., Code 9:10-7.]

Pursuant to Section 9:10-6, while the Borough is required to refer all applications to DEP in accordance with the State Aid Agreement and "give due regard to . . . any recommendation of NJDEP," it is "not . . . required to accept [that recommen-dation]."

Also pertinent to this appeal, the 2006 enactment addressed swimming pools. Section 9:10-3.3 (the pool ordinance) provided that "[i]n accordance with the State Aid Agreement, no approval shall be granted pursuant to Paragraph 9:10-3.2 to permit construction of swimming pools, tennis courts or similar structures . . . " (emphasis added). In addition, Ordinance No. 577-2006 amended the Avalon zoning ordinance (chapter 27) to delete swimming pools as a permitted accessory use in the residential districts (R-1AA Districts) along the beach. See Avalon, N.J., Code 27-6.2(3).

In addition to adopting the 2006 amendments, which included the prohibition on swimming pools in the dune area, in 2008 Avalon amended a portion of its zoning ordinance concerning landscaping. Avalon, N.J., Code 27-7.3(T). The relevant section provides:

The survival of most types of plant life is difficult on a barrier island such as where Avalon is located. Vegetation has to contend with nutrient poor, sandy soils, frequent northeast storms, strong west winds, and salt-laden air. These conditions make it difficult for most vegetation to develop and mature. Vegetation of all types, especially trees and shrubs, enhance absorption of run-off back into the soil, reduce air pollution, and aid transpiration. Trees and shrubs reduce the perception of noise and act as a windbreak. Accordingly, conservation of these natural resources is in the public interest, satisfies the purposes of zoning, and benefits those who dwell on the island.

. . . .

3. Selective clearing and protection of vegetation. The preservation of existing vegetation is a crucial component in accomplishing the goals of this ordinance. In order to maximize the opportunity to incorporate significant areas of existing vegetation into the design of the develop-ment, and to minimize damage to said areas during and subsequent to construction, the following standards shall apply:

a. A permit shall be required before a property can be cleared of 40% or more of any vegetation. An exception will be for the removal of dead vegetation, or nuisance plants such as, but not limited to, poison ivy, poison oak, poison sumac.

b. A[n] owner or developer is permitted to perform selective clearing to remove trees, underbrush and undesirable vegetation, within six (6) feet from the outside of the exterior wall of the proposed structure and where determined by the Planning Board or Zoning Officer in the case of a single or two-family residential unit, as practical for the location of utilities, parking areas, and other structures. . . . The areas and extent of selective clearing must be clearly indicated on the plan of the develop-ment and/or the grading and landscape plan. All selective clearing must be approved prior to the commencement of any clearing. The site boundaries and limits of proposed improvements must be accurately staked out on the site for this review and approval. Only nuisance plants, as defined, may be removed from the vicinity of the property lines unless the presence of other trees or shrubs will interfere with access to rear/side yard garages. All sites shall be developed, to the greatest extent possible, in a manner that will result in the least amount of disturbance to the natural site.

[Emphasis added.]

B. Plaintiff's Application

Plaintiff, a corporation solely owned by Dr. Coyle Connolly, owns a 25,950 square-foot oceanfront lot in the "High Dunes Area" of Avalon, which is in the R-1AA zone covered by the ordinances at issue in this case. The property includes a series of natural dunes and beach vegetation. Plaintiff sought to demolish an existing house on the property and to build a new, 3475-square-foot house, 1070 square feet of decks, and a swimming pool.

In connection with its plans, plaintiff applied to DEP for a CAFRA permit, which the agency initially denied in 2002. Following mediation of plaintiff's administrative appeal, in 2005 the agency issued a "Mediation & Settlement Agreement in Lieu of a Permit" (settlement agreement), which among other things gave plaintiff approval under CAFRA to build the house and a swimming pool. However, the settlement agreement specifically provided that plaintiff "shall obtain all other necessary local, state and federal permits."

In 2008, plaintiff filed the current lawsuit challenging Ordinance 577-2006, contending, among other things, that it was preempted by CAFRA, inconsistent with the MLUL, lacking clear standards, arbitrary, and unconstitutional. DEP participated as an amicus curiae in support of the ordinance. The trial judge granted Avalon's motion to dismiss the complaint. He concluded that the ordinance was not preempted by CAFRA, but he declined to address plaintiff's additional challenges because it had not filed an application for municipal approvals under the provisions it was challenging. On plaintiff's appeal, we temporarily remanded the case to the trial judge with direction to adjudicate plaintiff's facial challenges to the ordinances.

On remand, the judge found the swimming pool ban facially invalid. He placed significant reliance on the fact that DEP had approved the swimming pool. He also considered that DEP had issued Avalon a letter indicating that the agency had no objection to Avalon permitting plaintiff to construct the pool and that if Avalon did so, DEP would not withdraw the Borough's funding under the 1994 State Aid Agreement. The judge rejected plaintiff's facial challenges to the other portions of the beach protection ordinance and the landscaping amendment.

After the judge rendered his decision, plaintiff filed an application under the challenged ordinances for permission to construct the house and pool. The Planning Board issued a decision recommending that the Borough Council approve construction of the house, but not the pool. The application is currently pending before the Council, which has final municipal decision-making authority under the ordinance.

II

We engage in de novo review of the trial judge's interpretation of the law. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Employing that standard, we affirm the judge's decision upholding the beach protection ordinance and the landscaping amendment, but we reverse the decision invalidating the pool ordinance.

A.

We agree with the trial judge that the beach protection ordinance and the landscaping amendment are proper exercises of the Borough's police powers, are not void for vagueness, and are not preempted by CAFRA or by the MLUL. Plaintiff's arguments to the contrary are without sufficient merit to warrant discussion in a written opinion, Rule 2:11-3(e)(1)(E), and we affirm the trial judge's decisions on those issues for the reasons stated in his cogent oral opinions of May 9, 2008 and December 18, 2008. We add the following brief comments.

Like the trial judge, we cannot conclude that the beach protection ordinance is irrational. In McGovern v. Borough of Harvey Cedars, 401 N.J. Super. 136 (App. Div. 2008), we recognized that barrier islands such as Long Beach Island, on which Harvey Cedars was located, are particularly vulnerable to storm damage. We rejected an argument that the municipality's "building line" ordinance violated substantive due process because it had no rational basis:

In light of the island's history of devastating storm damage, we cannot say that an ordinance prohibiting building close to the water's edge in order to protect the dunes and to prevent property damage from storms, is irrational, arbitrary or lacking "a real and substantial relationship" to the purpose of protecting the public health, safety and welfare.

[Id. at 148 (quoting Caviglia v. Royal Tours of Am., 178 N.J. 460, 473 (2004)).]

Like Harvey Cedars, Avalon is situated on a barrier island off New Jersey's coast. And, as the challenged beach protection ordinance recites, Avalon's beach areas have suffered devastating storm damage. Further, as the ordinance recognizes, the dunes are the island's first line of defense against future damage. Moreover, as DEP's trial court brief stated, DEP required Avalon to retain its beach protection ordinance as a condition of receiving shore protection funding, thus confirming the ordinance's important public purposes. We therefore find the ordinance represented an entirely rational use of the Borough's police powers.

B.

We turn next to the CAFRA preemption claim. It is well-established that CAFRA does not preempt local zoning so long as it is consistent with the statute. Lusardi v. Curtis Point Prop. Owners Ass'n, 86 N.J. 217, 229 (1981). See also Bubis v. Kassin, 184 N.J. 612, 630 (2005); N.J.S.A. 13:19-19. Nor does CAFRA preclude municipalities from using their police powers to protect the dunes. Lusardi, supra, 86 N.J. at 231; McGovern, supra, 401 N.J. Super. at 150-52. In this case, the DEP, the agency responsible for enforcing CAFRA, agreed in the trial court that the challenged ordinance was consistent with CAFRA and was not preempted. See Matturri v. Bd. of Trs. of the Judicial Ret. Sys., 173 N.J. 368, 381-82 (2002) (discussing the deference due to an agency's interpretation of its enabling statute).

Plaintiff has not met its heavy burden to show preemption here:

The Legislature has delegated broad general police powers to municipalities to adopt such ordinances as they "may deem necessary and proper for the good government, order and protection of persons and property, and for the preservation of the public health, safety and welfare of the municipality and its inhabitants." N.J.S.A. 40:48-2. Under this statutory authority, "a municipality may exercise its police powers to 'legislate for the . . . protection of its residents and property owners,' and such regulation will not be preempted absent a clear legislative intention."

[Borough of Avalon v. N.J. Dep't of Envtl. Prot., 403 N.J. Super. 590, 598 (App. Div. 2008) (citation omitted).]

Our prior decision in McGovern, supra, is closely on point. There, the plaintiff sought to build a swimming pool in an area where construction was prohibited to protect the dunes. We recognized that CAFRA was not intended to prevent municipalities from adopting their own beach protection ordinances to address local concerns. In rejecting the plaintiff's claim that the municipal building line ordinance was preempted by CAFRA, we held:

[In] this case, the municipality is not seeking to regulate the construction of dunes in a manner inconsistent with CAFRA, but rather is prohibiting construction of buildings and other structures close to the water's edge. The ordinance thus protects both the dunes and the buildings. CAFRA does not prevent municipalities from providing more protection to the dunes than CAFRA would allow, and plaintiff has not pointed out any respect in which the municipal ordinance permits activity that CAFRA prohibits.

Like the fence ordinance in Bubis [v. Kassin, supra], the building line ordinance "operates on a smaller scale" than CAFRA, seeking to address a local issue in light of Long Beach Island's particular vulnerability to storm damage. We find no preemption.

[McGovern, supra, 401 N.J. Super. at 151-52.]

As we previously observed in rejecting plaintiff's constitutional challenge here, Avalon is located on a barrier island which is unusually vulnerable to storm damage. It therefore may adopt ordinances consistent with and similar to, but more stringent than, CAFRA's requirements in order to address its local concerns. Ibid.

Plaintiff's reliance on Dowel Associates v. Harmony Township Land Use Board, 403 N.J. Super. 1 (App. Div.), certif. denied, 197 N.J. 15 (2008), is misplaced. That case concerned an entirely different statutory scheme, the New Jersey Water Pollution Control Act, N.J.S.A. 58:10A-1 to -35, which we found gave DEP primary jurisdiction over wastewater disposal issues relating to a land use application. Our decision in Dowel was also significantly influenced by affordable housing issues. Id. at 37-38.

Noting that the planning board's decision to deny preliminary site plan approval, instead of conditioning approval on DEP issuing a NJPDES permit, was inconsistent with the municipality's fair housing obligations, we concluded:

[T]he primary review of the proposed wastewater disposal system rested with DEP which was appropriately exercising its jurisdiction in this case. And deference to the DEP is especially appropriate in this case because the Board's disapproval of this project effectively upended years of planning for the site to accommodate the municipality's constitutionally required share of the region's affordable housing needs.

[Id. at 31.]

We therefore construed the Township's zoning ordinance as permitting "the Board to conditionally approve the development subject to DEP's approval of viable sewage-disposal and storm-water systems." Id. at 38. We conclude that Dowel is not on point here, where there are no fair housing issues, CAFRA clearly does not preempt local regulation, and the DEP has no objection to the ordinance at issue.

We likewise reject plaintiff's contention that the beach protection ordinance and the landscaping amendment require "site plan approval" in contravention of the MLUL, which does not require site plan approval for single family dwellings. See N.J.S.A. 40:55D-37(a). Plaintiff's challenge to the landscaping amendment, which it admits is part of Avalon's zoning ordinance, is without sufficient merit to warrant discussion here. R. 2:11-3(e)(1)(E). Plaintiff's challenge to the beach protection ordinance is likewise without merit.

In effect, plaintiff would have us rule that the municipality can only impose its dune-protection standards on persons seeking to build larger developments, as opposed to single family homes. We disagree. Like the trial judge, we conclude that the beach protection ordinance is a proper exercise of the Borough's police powers aimed at protecting the dunes, and is not a zoning ordinance. See N.J. Shore Bldrs. Ass'n v. Jackson Twp., ___ N.J. ___ (2009) (slip op. at 19-20).

Contrary to plaintiff's contention, we do not read Estate of Neuberger v. Township of Middletown, 215 N.J. Super. 375, 383-84 (App. Div. 1987), as compelling a different result. That case concerned the designation of historic districts within a municipality, a subject recognized by statute as belonging to the zoning power. Nor does Lusardi, supra, preclude a municipality's use of its general police powers to protect a discrete, environmentally sensitive feature such as the dunes:

This restriction [on the power to restrict beach access] does not mean that the township may not, through more precisely drawn zoning or other regulations, achieve its valid objectives of avoiding unnecessarily disruptive behavior, overcrowding, and littering, or of protecting environmentally fragile oceanfront property, such as irreplaceable sand dunes, for the benefit of future generations. These problems can be alleviated through reasonable ordinances directed at specific abuses and through the use of the general police power.

[Lusardi, supra, 86 N.J. at 231.]

Finally, we find no merit in plaintiff's contention that the Avalon ordinance is unduly vague, an argument rejected by the Supreme Court in addressing a similar dune protection ordinance in Spiegle v. Beach Haven, 46 N.J. 479, 493, cert. denied, 385 U.S. 831, 87 S. Ct. 63, 17 L. Ed. 2d 64 (1966).

C.

While we agree with the trial court's rulings on the beach protection ordinance and the landscaping amendment, we part company with the decision holding the pool ordinance facially invalid. That holding was inconsistent with the very significant deference due the municipality's judgment in adopting the ordinance:

Ordinances enacted pursuant to the police power are presumptively valid. "The presumption is not an irrebutable one, but it places a heavy burden on the party seeking to overturn the ordinance." Indeed, "factual support for the legislative judgment will be presumed and, absent a sufficient showing to the contrary, it will be assumed that the statute rested 'upon some rational basis within the knowledge and experience of the Legislature.'" The presumption of validity "can be overcome only by proofs that preclude the possibility that there could have been any set of facts known" or assumed to be known by the drafters that would, in the exercise of reason and common sense, have allowed them to conclude that the enactment would advance the interest sought to be achieved. The job of a reviewing court is not to weigh the evidence for or against an enactment, or to evaluate the wisdom of the policy choice made.

[N.J. Shore Bldrs. v. Jackson Twp., supra, slip op. at 21-22 (citations omitted).]

We perceive nothing irrational in the Borough's decision to adopt the pool ordinance as a condition of obtaining DEP funding for beach replenishment. Further, a ban on construction of swimming pools in an environmentally sensitive area such as the dunes is rationally related to an important public purpose. See McGovern, supra, 401 N.J. Super. at 148.

Environmental conservation legislation frequently attempts to protect scarce resources that are in danger of disappearing or being destroyed. See e.g., N.J.S.A. 13:19-2 (legislative declaration of CAFRA's purpose). Hence, even if plaintiff's house were the last one in the area without a pool, the ordinance could rationally further the purpose of trying to protect whatever is left of an endangered resource, in this case, the dunes.

Further, while there are many other pools in the neighborhood, the record does not reflect when plaintiff's neighbors constructed those pools. They might have pre-dated the beach protection ordinances entirely. There is no evidentiary basis on which to conclude that the pool ordinance is honored in the breach and is irrational for that asserted reason. Moreover, the ordinance will prevent the construction of additional or expanded pools in the future.

We conclude that, in finding the pool ordinance facially invalid, the trial court conflated the issues of facial invalidity and invalidity as applied. We find no basis to strike the ordinance as invalid on its face, because it serves a rational purpose. However, that does not answer the question whether application of the ordinance to plaintiff's situation would be rational, in light of the DEP's conclusion (and that of the Borough's planning board) that this particular proposed pool would pose no environmental problems, and DEP's promise not to deny the Borough funding if plaintiff's application is approved.

In the first instance, it is the Borough Council's prerogative to construe its own legislation, including whether to construe the ordinance as permitting exceptions in limited circumstances consistent with its underlying purpose. Nothing in this opinion precludes the Council from construing the pool ordinance as allowing exceptions where the DEP, at whose behest the ordinance was adopted, advises that it has no objection to construction of a pool and will not deny the Borough funding if it permits the construction. We will not anticipate the Borough's decision on that issue, nor can we accept plaintiff's urging that we exercise "original jurisdiction" over its as-applied challenge. The issue is simply not ripe for our

consideration.

Affirmed in part, reversed in part.

 

A related challenge to the Planning Board's authority has been rendered moot by an amendment to the ordinance giving the Borough Council final decision-making authority over applications for construction in the dune area.

Of the twelve homes in the High Dunes Area, plaintiff's house is the only one without a swimming pool, although there is no evidence as to when the neighbors built their pools. Based on photographs in plaintiff's appendix, the neighboring homes can fairly be described as mansions. There appears no dispute that plaintiff's property has an assessed value of several million dollars.

This was plaintiff's second lawsuit concerning the planned construction. In February 2006, plaintiff applied to the Avalon Planning Board for various setback variances, and applied under a previous version of the beach protection ordinance for permission to remove or redistribute sand from a beach dune area. The Board denied one of the setback variances and denied the sand removal application. Plaintiff sued the Board and Avalon, challenging the beach protection ordinance as preempted by CAFRA. DEP appeared as amicus curiae in support of Avalon's ordinance. By order dated February 15, 2007, the trial judge resolved the variance issues, but declined to decide the preemption issue.

In a previous order, the judge had urged DEP to send this letter reassuring Avalon that DEP would not revoke its funding if Avalon approved the pool application.

Unlike the CAFRA regulations, N.J.A.C. 7:7E, the Beach Protection Ordinance requires that disturbed, removed, replaced or redistributed sand and/or vegetation be restored or replaced, at least, to the greatest extent possible when development is completed. See Avalon, N.J., Code 9:10-3.2(c). Moreover, section 9:10-3.2 requires that all activities resulting in sand and/or vegetation being disturbed, removed, replaced or redistributed cannot go beyond "the Line of Disturbance," which is "limited to a maximum distance of six (6) feet beyond the outward face of each horizontal dimension of the proposed improvement." This "line of disturbance" limitation does not appear in the CAFRA regulations.

Plaintiff's remaining appellate arguments, including its objection to the adoption of the pool ordinance, as requiring personal notice under N.J.S.A. 40:55D-62.1, are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

(continued)

(continued)

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