WILLIAM MANSFIELD v. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION

 
(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

WILLIAM AND KATHLEEN MANSFIELD,

Petitioners-Appellants,

v.

NEW JERSEY DEPARTMENT OF

ENVIRONMENTAL PROTECTION,

LAND USE REGULATION,

Respondent-Respondent.

________________________________________________

April 13, 2015

 

Argued February 9, 2015 Decided

Before Judges Sabatino, Simonelli, and Guadagno.

On appeal from the New Jersey Department of Environmental Protection, Permit No. 1524-08-0012.1, WFD090001.

John M. Van Dalen argued the cause for appellants (Van Dalen Brower, L.L.C., attorneys; Mr. Van Dalen, of counsel and on the briefs; Eileen P. Kelly, on the briefs).

Melissa P. Abatemarco, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Deputy Attorney General, of counsel; Ms. Abatemarco, on the brief).

PER CURIAM

William and Kathleen Mansfield appeal from the June 28, 2013 final decision of the Commissioner of the Department of Environmental Protection (DEP) adopting the initial decision of an administrative law judge (ALJ) affirming DEP's denial of the Mansfields' application for a Waterfront Development Act (WDA) permit. We affirm.

The Mansfields purchased the subject property in November 2007 as their primary residence. The property is located on a tributary of the north branch of the Beaver Dam Creek in Point Pleasant. At the time of purchase, the waterward border of the property was protected by large stone rip-rap1 which sloped from the grade of the lawn down to the waterway.

In August 2008, the Mansfields retained Monmouth Ocean Bulkheading Marine Contractors (MOBMC) to construct a 130-foot bulkhead along the waterward border of the property. The contract with MOBMC indicates that local and DEP permits would be obtained by the owners. In the event that the Mansfields wanted MOBMC to obtain the permits, the contract provided that the DEP permit would be an additional $3,175, and the local permit would be $200 more. It is undisputed that no permits were obtained for the construction.2

After MOBMC completed construction, DEP environmental specialist Jenifer Ledesma inspected the Mansfield property on September 30 and October 29, 2008. Her inspections were done at two and two and one-half hours, respectively, after high tide. On both occasions, Ledesma observed "water . . . at the face of the bulkhead and no land was seen waterward of the bulkhead." Two photos taken on October 29, 2008 are included in the record.

On November 25, 2008, DEP issued a notice of violation (NOV) alleging that the Mansfields violated the WDA, N.J.S.A. 12:5-3, and the Riparian Land Statute, N.J.S.A. 12:3-5, by constructing the bulkhead and a dock without a WDA permit or a Tidelands instrument. The NOV required the Mansfields to apply for a Tidelands grant and a WDA permit within thirty days.

In March 2009, the Mansfields applied for a WDA permit and a Tidelands license. John Zingis, an environmental consultant retained by the Mansfields, submitted a proposed plan whereby four feet of rip-rap and wetlands plantings would be added waterward of the bulkhead, which Zingis referred to as a "retaining wall." On June 25, 2009, DEP denied the Mansfields' permit applications as inconsistent with the Coastal Zone Management rules, N.J.A.C. 7:7E-1.1 to -8.22, specifically the sections pertaining to recreational docks and piers, N.J.A.C. 7:7E-4.5, and coastal engineering, N.J.A.C. 7:7E-7.11.

The Mansfields sought an adjudicatory hearing and the matter was transmitted to the Office of Administrative Law. In the interim, the Mansfields submitted an amended WDA permit application as to their dock, proposing to adjust its height and plank spacing in accordance with N.J.A.C. 7:7E-4.5. DEP issued that permit on January 5, 2010, leaving only the appeal of the denial of the bulkhead permit and the Tidelands issue before the ALJ. The ALJ decided the case based upon cross-motions for summary decision, extensive written submissions, and limited testimony.

On December 3, 2012, the ALJ filed a decision recommending that the Commissioner deny the Mansfields' motion to reverse DEP's denial of a bulkhead permit. The ALJ first found that the wall is a bulkhead, noting that retaining walls "are not designed to withstand the forces of current[s] and waves," while bulkheads are. He observed that the Mansfields' contract with MOBMC was for the "placement of a new bulkhead," their permit application was submitted to "legalize an existing bulkhead and dock," their own expert referred to the structure as a bulkhead, and DEP inspector Jenifer Ledesma determined upon observation that the structure is indeed a bulkhead. He rejected the Mansfields' assertion that they contracted only for a retaining wall as unsupported in the record.

Relying in part on photographs from 1940, the ALJ found that the waterway is an altered tidal stream and not a man-made lagoon. He noted that the parties' arguments on this issue boiled down to a legal inference to be drawn from undisputed facts. Specifically, both parties' experts agreed that a natural stream is shown at the waterway's location in the historic photographs. The Mansfields' expert, Dr. Susan Halsey, argued that when a natural stream is "entirely redesigned" by large-scale engineering "to perform as a lagoon," it qualifies as a man-made lagoon under the regulatory definition.3 DEP argued that a natural waterway can never become a man-made lagoon, regardless of the scale of engineering. The ALJ expressly found that DEP's interpretation of the regulatory definition of "man-made lagoon" was reasonable and therefore entitled to deference.

Further, the ALJ found that even if the waterway were a man-made lagoon, the Mansfields would not prevail because they failed to show that the bulkhead was built above what is known as the "spring high water line."4 He credited the certification of DEP agent Christopher Dolphin, who noted that the Mansfields' own survey put the wall at the mean high water line, which is "necessarily landward of mean high water, and thus behind the bulkhead." Although Dr. Halsey attacked Dolphin's methodology, the ALJ discredited Halsey's reasoning as it "rewards the unpermitted construction."

The ALJ did not resolve the Tidelands license issue, concluding that the Tidelands Resource Council (TRC)

does not vote on such questions until a construction permit has been finally approved. . . . [T]here is not much point in setting a price for the State's interest in tidally flowed lands until the riparian owner has secured a permit to construct something. That calculation is not altered when homeowners proceed without a permit. I leave the tidelands question to its normal course.

The DEP Commissioner adopted the ALJ's decision. He first found that the structure was indeed a bulkhead and that there is no evidence to show that what the Mansfields constructed was a retaining wall. He relied on the same evidence as the ALJ, including the photographs, survey, construction contract, permit application, and expert observations, as well as the definition of a bulkhead in N.J.A.C. 7:7E-1.8 as a "vertical shore protection structure installed to withstand the forces of waves and currents." The Commissioner concluded that as a bulkhead, the structure was subject to the coastal engineering rule, N.J.A.C. 7:7E-7.11, under which a bulkhead is only allowed as new construction if "essential" to protect the shoreline from erosion.

The Commissioner then found that DEP's permit denial was appropriate because the Mansfields had not shown that their bulkhead was "essential" to protect their property from erosion, because the preexisting rip-rap adequately protected against the minor erosion that had occurred in the last forty years.

The Commissioner agreed with the ALJ that the waterway could not be a man-made lagoon, considering the undisputed historic existence of a natural stream in its place. Even if the waterway were considered a man-made lagoon, the Commissioner accepted the ALJ's finding that the wall was built below the spring high water line.

Finally, the Commissioner found that the extent of the State's claim to the Mansfields' waterway under the Riparian Land Statute "is not appropriate for disposition on a motion for summary decision." Nonetheless, he expressly concluded that because "the waterway is an artificially altered natural waterway with tidal influence, the state has the right to assert a Tidelands claim to that waterway and to require a tidelands license for any occupation of that waterway." The Commissioner acknowledged, however, that the "extent of the state's claim and the assessment for [an instrument] must be made by the TRC in the first instance." He concluded by granting DEP's motion for summary decision and denying the Mansfields' motion for same.

The Mansfields raise the following points on appeal

point i

the final decision should be reversed because assuming for argument's sake that the retaining wall is a bulkhead, it was built adjacent to a man-made lagoon on land above the spring high water line.

a. the water area has all the characteristics of a man-made lagoon.

b. the activities that created the lagoon do not fit any reasonable interpretation of alterations to a natural stream by filling, channelizing, and bulkheading.

c. the final decision improperly resolved genuine issues of material fact demonstrating the creation of a "man-made lagoon" on motions for summary decision.

point ii

dep was not entitled to summary decision that the wall or bulkhead was not built above the spring high water line.

point iii

the mansfields built an unregulated retaining wall less than one foot high pursuant to the repeated instructions from dep inspector randy bearce; any departure from a legal retaining wall resulted from the contractor's unauthorized removal of rip rap outshore of the retaining wall that the mansfields have offered repeatedly to restore.

point iv

the mansfields' retaining wall and dock are not located on state-owned tidelands, and therefore no tidelands license and rent are required for those structures.

a. the dep failed to identify material facts to support the extension of the state's claim beyond the area identified on its 1982 claims overlay map.

b. dep's expansion of its tidelands claim is contrary to settled law.

c. the tideland issues are appropriately determined in this action.

We have considered these arguments in light of the record and the applicable legal principles and find them to be unpersuasive.

Our role in reviewing an administrative agency's final decision is limited. Univ. Cottage Club of Princeton N.J. Corp. v. N.J. Dep't of Envtl. Prot., 191 N.J. 38, 48 (2007). We will not reverse an agency's decision unless it was arbitrary, capricious, or unreasonable; it violated express or implied legislative policies; it offended the State or Federal Constitution; or the findings on which it was based were not supported by substantial, credible evidence in the record. Ibid.

We afford particular deference to agency interpretation of the regulations it is charged with enforcing, unless such interpretation is "plainly unreasonable." US Bank, N.A. v. Hough, 210 N.J. 187, 200 (2012). We are "in no way bound by the agency's interpretation of a statute or its determination of a strictly legal issue." Ibid. (quoting Univ. Cottage Club, supra, 191 N.J. at 48).

Summary decision in an administrative proceeding is appropriate where the pleadings, discovery, and affidavits "show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to prevail as a matter of law." N.J.A.C. 1:1-12.5(b). No genuine issue of material fact exists if "the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 406 (2014) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)).

Generally, all development on New Jersey's waterfronts requires a permit from DEP, as provided in the WDA

All plans for the development of any waterfront upon any navigable water or stream of this State or bounding thereon . . . which involves the construction or alteration of a dock, wharf, pier, bulkhead, bridge, pipeline, cable, or any other similar or dissimilar waterfront development shall be first submitted to [DEP]. No such development or improvement shall be commenced or executed without the approval of [DEP] first had and received[.]

[N.J.S.A. 12:5-3(a).]

There are three enumerated circumstances under which a WDA permit is unnecessary, none of which is applicable here. See N.J.S.A. 12:5-3(b). The rules promulgated by DEP regarding the WDA permitting procedure are set forth in N.J.A.C. 7:7, and the substantive WDA rules are provided in N.J.A.C. 7:7E, entitled "Coastal Zone Management" (CZM Rules). N.J.A.C. 7:7E-1.2(c)(1).

The applicable CZM Rule is entitled "Coastal Engineering." N.J.A.C. 7:7E-7.11. Specifically, the Mansfields' bulkhead permit was denied based on violation of the hierarchy set forth in subsection (b), as well as a failure to show the wall was "essential" under subsection (g)(1)(i)

(b) Nonstructural, hybrid, and structural shore protection and/or storm damage reduction measures shall be used according to the following hierarchy

1. Non-structural shore protection and/or storm damage reduction measures that allow for the growth of vegetation shall be used unless it is demonstrated that use of non-structural measures is not feasible or practicable. . . .

2. Where the use of non-structural shore protection and/or storm damage reduction measures under (b)1 above is demonstrated to be not feasible or practicable, then hybrid shore protection and/or storm damage reduction measures that allow for the growth of vegetation, such as stone, rip-rap, sloped concrete articulated blocks or similar structures, or gabion revetments, shall be used. . . .

3. Where the use of hybrid shore protection and/or storm damage reduction measures under (b)2 above is demonstrated to be not feasible or practicable, then structural shore protection and/or storm damage reduction measures such as bulkheads, revetments, sea walls, or other retaining structures shall be used. . . .

. . . .

(g)(1) The construction of new shore protection structures . . . including, but not limited to . . . bulkheads, gabions, and other retaining structures . . . is acceptable only if the structure meets the following conditions

i. The structure is essential . . . to protect existing structures and infrastructure in developed shorefront areas threatened by erosion[.]

[N.J.A.C. 7:7E-7.11 (emphasis added).]

The Mansfields contend that their bulkhead was built on a man-made lagoon above the spring high water line, and is thus allowed under the regulations5 without the need to satisfy N.J.A.C. 7:7E-7.11. The ALJ and Commissioner found that the waterway is not a man-made lagoon, and the bulkhead was not built above the spring high water line.

"Man-made lagoon" is defined by N.J.A.C. 7:7-1.3 as

an artificially created linear waterway sometimes branched, ending in a dead end with no significant upland drainage. Lagoons have been created through dredging and filling of wetlands, bay bottom and other estuarine water areas for the purpose of creating waterfront lots for residential development adjacent to the lagoon. A natural waterway which is altered by activities including, but not limited to, filling, channelizing, or bulkheading shall not be considered a man-made lagoon, nor shall a bulkheaded boatslip be considered a lagoon.

The Mansfields claim that their waterway is necessarily a man-made lagoon because the large-scale engineering that created it was neither filling, channelizing, nor bulkheading, and "completely replaced the features of any . . . pre-existing natural water courses."

We note that the plain language of the regulation provides that the activities that exempt development from being a man-made lagoon "are not limited to" filling, channelizing, or bulkheading. N.J.A.C. 7:7-1.3. Moreover, both the ALJ and Commissioner found that DEP's interpretation of its own regulation was reasonable. We owe deference to DEP's interpretation of the definition of "man-made lagoon" unless that interpretation is "plainly unreasonable." In re Election Law Enforcement Comm'n Advisory Op. No. 01-2008, 201 N.J. 254, 262 (2010). No such showing has been made here and the Commissioner's finding that the waterway is an altered natural stream and not a man-made lagoon is supported by substantial credible record evidence. Because a bulkhead's location on a man-made lagoon is a prerequisite under N.J.A.C. 7:7-7.10, the Commissioner's finding that the bulkhead is instead governed by N.J.A.C. 7:7E-7.11 must be upheld. The photographs, maps, and other exhibits highlighted by the Mansfields do not demonstrate that the finding is unreasonable or without sufficient evidential support.

The Mansfields next argue that there are disputed issues of material fact as to whether the bulkhead was built at or above the spring high water line such that summary decision was inappropriate. We disagree.

"'Spring high water line' is the intersection of the land with the water surface at the elevation of spring high tide." N.J.A.C. 7:7E-1.8. The "spring high tide" is the tide that rises highest during the year from the mean level. Ibid. The Commissioner concluded that no factual dispute existed on the issue

As indicated in [DEP's] photographs and the inspector's visual observation, water met the face of the bulkhead 2 and 2 hours after high tide on the days of inspection. The survey and plans depict the mean high water and spring high water lines at the face of the bulkhead. [DEP's] expert compared the data provided in the Lindstrom Plan and the Morris Survey and concluded that the bulkhead is situated waterward of the spring high water line . . . . [Although appellants'] permit compliance statement indicated that the bulkhead was constructed along the mean high water line[, t]he additional observation that water meets the bulkhead at mean low water further refutes [that] claim.

Photographs taken by Jenifer Ledesma on October 29, 2008 clearly show no soil waterward of the bulkhead. DEP agent Christopher Dolphin certified that mathematically, the spring high water line reaches further inland than the mean high water line, and concluded that "by logic," if the bulkhead was below mean high water as Ledesma observed, then it is necessarily below spring high water.

Moreover, plans submitted by the Mansfields specifically indicate that the mean high water line is at .19 elevation, the spring high water line is at .32 elevation, and the bulkhead's elevation varies between zero and .3 at different points along its length. These documents conclusively demonstrate that, even at its highest point, the bulkhead remains below the spring high water line.

We find that the remaining arguments presented by the Mansfields lack sufficient merit to warrant discussion in our opinion beyond these brief comments. R. 2:11-3(e)(1)(E).

The attempt by the Mansfields to pound the square peg of their unpermitted bulkhead into the round hole of a permit-exempt "similar structure," such as a landscape retaining wall, under N.J.A.C. 7:7-2.1(c)(5) is unavailing. Factually, the contract with MOBMC clearly indicates that the Mansfields engaged them to construct a bulkhead. Moreover, the Mansfields' nunc pro tunc permit application requested "legalization of approximately 135 linear feet of existing bulkhead." Not until their environmental consultant Zingis become involved did the bulkhead become a retaining wall. Legally, these environmental-semantic gymnastics must fail, as N.J.A.C. 7:7-2.1(c)(5)(v) expressly excludes both "retaining walls" and "bulkheads" from constituting permit-exempt structures.

Also unconvincing is the Mansfields' attempt to point the finger at MOBMC, blaming it for the unauthorized, and presumably uncompensated, removal of 135 feet of large stone rip-rap without their knowledge or permission. This transgression, we are led to believe, somehow transformed a permissible retaining wall into an offending bulkhead. The ALJ and the Commissioner rejected these arguments. We agree.

Finally, we decline to consider the Mansfields' claim that the bulkhead and dock are not located on state-owned tidelands and are therefore exempt from license requirements and rent obligations. We agree with the Commissioner that this determination under the Riparian Land Statute, N.J.A.C. 12:3-5, must be made in the first instance by the TRC.

Affirmed.

1 Rip-rap is comprised of stone and boulders without cement. Gerhard v. Fichter, 12 N.J. Super. 265, 266 (Ch. Div. 1951).

2 Kathleen Mansfield submitted a certification indicating that she spoke with Randy Bearce of DEP prior to beginning construction and Bearce explained that no permit would be needed if they "built the wall upland of the mean high water line, not exceeding one foot in height, and left property on both sides of the structure[.]" Bearce submitted a certification indicating that he did not recall ever communicating with William or Kathleen Mansfield, and found nothing in his files to indicate that he had any involvement with the Mansfields or their property. This apparent factual discrepancy does not affect our analysis of the legal issues. Even if Mansfield's claim is true, the government is generally not estopped from enforcing the law, even where a civil servant allegedly provides incorrect advice about compliance. See Cnty. of Morris v. Fauver, 153 N.J. 80, 104 (1998) (noting principles of estoppel are rarely applied against the government) (citing O'Malley v. Dept. of Energy, 109 N.J. 309, 316 (1987)).

3 See N.J.A.C. 7:7-1.3, discussed infra.

4 See N.J.A.C. 7:7E-1.88, discussed infra.

5 N.J.A.C. 7:7-7.10 authorizes "the construction of a bulkhead on a lot located on a substantially developed man-made lagoon," provided that the bulkhead is "located at or above the spring high water line[.]"