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Notices and Appellate Review of a CAFRA Permit

In JSTAR, LLC v. New Jersey Department of Environmental Protection, et al., Docket No. A-1745-18T1, the Appellate Division in an unpublished decision revisited the issues of notice and a review of an agency decision, as it relates to the approval of an individual Coastal Area Facility Review Act (“CAFRA”) Permit.

JSTAR, LLC (“JSTAR”) was an adjacent property owner who appealed the granting of a CAFRA Permit granted to RTS IV, LLC (“RTS”). The permit was for the construction of a residential development of seven single-family homes in a location where a former residential community had been destroyed by Superstorm Sandy. On appeal, JSTAR argued that RTS failed to provide proper notice, that JSTAR was not provided adequate due process, and that RTS had not provided enough evidence to support the approval of the CAFRA Permit.

The first argument addressed by the Court was JSTAR’s contention that the notice was defective. In arguing that the notice was defective, JSTAR asserted that the description did not fully provide the proposed project, and that additional notices should have been required beyond the current subject property. Specifically, JSTAR argued that because there were proposed improvements to Cummings Street that would have affected two properties, including RTS’s property, along the road, residents within 200 feet of both those properties should have been noticed. Similarly, JSTAR argued that a proposed road widening and curb cut along Route 35 also required RTS to send notice to all owners within 200 feet of said road widening and curb cut.

The Court disagreed with JSTAR’s contentions. First, under the Coastal Management Zone rules, RTS was only required to briefly describe the proposed project, provide a site plan, detailing the development’s location and boundaries, and provide a copy of the Department’s form notice letter. The Court held that there was no requirement that RTS had to describe in detail each item that was proposed or could be affected.

JSTAR primarily relied on the Municipal Land Use Law (“MLUL”) to argue that more detail was required for the notice to the nearby property owners. However, the Court held that while the Coastal Management Zone rules does refer to the MLUL for the procedure in serving notice, the MLUL does not dictate the contents of the CAFRA permit’s notice. Therefore, the Court held that the notice was not deficient, as it was substantively in compliance with the CAFRA notice requirements.

As to the expanded notice, the Court held that the rules only require the notice to be sent to property owners within 200 feet of the proposed development’s boundary line. Since RTS was not proposing improving Cummings Street or Route 35 beyond the property lines, the Court held that there was no need to expand the scope of properties that are necessary to be noticed.

The second argument that the Court addressed was JSTAR’s argument that the Department violated JSTAR’s procedural due process rights by failing to communicate with JSTAR during the public comment period. However, the Court found that there was no evidence of a violation of the due process.

The Court held that the record demonstrated that the Department held the thirty-day public comment period, during which JSTAR did participate in submitting its objections to RTS’s application. RTS then responded to each of JSTAR’s comments, and the Department considered the public comments and response to public comments. JSTAR argued that the Department was obligated to respond to its comments. However, the Court held that the Department was not required to respond to every public comment, and that due process only requires JSTAR to have an opportunity to respond to the permit application, and to have the Department consider the comments when making its determination.

Lastly, JSTAR argued that the CAFRA permit “was not substantiated by sufficient information and empirical data.” However, the Court reiterated the discretionary standard of review to an agency. While JSTAR also sought to argue that the proposed setbacks for the development made the buffers inadequate, the Court found that there was no support for the contention that yard setbacks have anything to do with buffer requirements under CAFRA regulations. In the end, the Court concluded that the Department’s did consider the multitude of issues raised by JSTAR in approving the CAFRA permit, and that there was no evidence to support that the Department’s decision was arbitrary, capricious, or unreasonable.

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