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A state appellate court has just upheld a DEP decision denying a homeowner’s application to move a pier by six feet from its prior location. The DEP held, and the Court agreed, that moving the pier resulted in its losing its “legacy status” and therefore new, more restrictive rules apply. The case is entitled Dunn v. NJDEP, Appellate Divsion docket number A-1392-22. It is a perfect illustration of how one can lose grandfathering rights and become responsible for new standards.

Dunn purchased waterfront property in Cape May County in 2015. He then applied to the NJDEP to make certain property improvements, and DEP authorized those improvements. But after the construction was completed, Dunn applied for a permit to reflect the fact that the pier had been moved. In other words, he applied to “legalize” the work he had undertaken without approval. That’s where his problems began.

DEP denied the permit to legalize the pier relocation because new regulations require that the pier be no greater than eight feet wide. His was 13 feet. His neighbor participated in the administrative action opposing the grant of the permit, and we see that kind of participation often, particularly in the state’s coastal region.

The Court found that the DEP’s reasoning to be supported by the substantial history underlying the application statutory and regulatory provisions at issue. In fact, the Court referred to the regulatory requirement that piers not be rebuilt greater than eight feet in width as clear on its face. Hence in this case, thirteen feet is clearly greater that eight feet, and the Court uphelp the denial by DEP.

Clearly our waterfront in NJ is heavily regulated and controlled –and for good reason. People need to ensure that any improvements meet the letter of the law. Here, while Mr. Dunn was done, you do not want that to happen to you.

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