JACK CAYRE VS. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, ETC. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, ETC. VS. JACK CAYRE (NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION)
A-0223-19
| N.J. Super. Ct. App. Div. | Jun 24, 2021Background
- Jack and Sarah Cayre built a poured‑concrete recreational pavilion (with utilities and finished amenities) and a stone revetment into the beachfront coastal bluff at their Deal, NJ property after Superstorm Sandy, without DEP permits.
- DEP issued a Notice of Violation and the Cayres filed an after‑the‑fact CAFRA individual permit application for the pavilion; DEP requested a wave scour analysis and hierarchy analysis under the Coastal Engineering Rule.
- The Cayres submitted an engineering report by Dr. Weggel that did not include a scour analysis for the pavilion and did not demonstrate that nonstructural or hybrid shore protection measures were infeasible.
- DEP denied the permit for noncompliance with Coastal Zone Management Rules (coastal bluffs setback, coastal engineering, flood hazard, beaches, housing use); DEP later assessed penalties and an AONOCAPA (later resolved by consent as to penalties).
- The ALJ granted DEP summary decision on the permit denial (denying admission of supplemental reports as insufficient to show newly discovered evidence and finding the Cayres failed to meet the hierarchy/scour requirements); the Commissioner affirmed in the final decision (Aug. 1, 2019).
- The Appellate Division affirmed: the undisputed record showed the Cayres failed to provide the required hierarchy demonstration and scour analysis, and DEP’s denial was not arbitrary or a denial of due process.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Validity of DEP's denial of after‑the‑fact CAFRA permit under Coastal Bluffs/Coastal Engineering rules | Cayres: Pavilion is not subject to the shore‑protection hierarchy or is otherwise permitted; evidence (Weggel) showed stability | DEP: Pavilion violated bluff setback and did not meet Coastal Engineering hierarchy or provide scour analysis | Held: DEP permissibly denied the permit; Cayres failed to show nonstructural/hybrid infeasibility or supply required scour analysis |
| 2. Proper use of summary decision (vs. full hearing) | Cayres: ALJ misapplied summary decision standard; needed a hearing to develop disputed facts | DEP: Material facts undisputed; denial rested on documentary deficiencies, so summary decision appropriate | Held: Summary decision appropriate; decision rested on undisputed failures to provide required analyses/documentation |
| 3. Admissibility/effect of supplemental Weggel reports (new evidence) | Cayres: 2017/2018 supplemental certifications/reports supply the omitted scour analysis and rebut DEP findings | DEP: Supplemental materials were new and should not reopen the record; they did not cure substantive regulatory gaps | Held: ALJ properly refused to reopen record; even considering new reports, Cayres still did not satisfy hierarchy/scour requirements |
| 4. Due process / agency review procedures (ALJ initial decision and Commissioner review) | Cayres: Agency process (summary decision, refusal to reopen, Commissioner action) denied procedural due process | DEP: Agency followed adjudicative procedures and afforded opportunity to be heard; agency has broad but bounded flexibility | Held: Administrative process here satisfied due process; agency acted within its adjudicative discretion |
Key Cases Cited
- Contini v. Bd. of Educ., 286 N.J. Super. 106 (App. Div. 1995) (agency summary‑decision standard parallels Rule 4:46‑2)
- Busciglio v. DellaFave, 366 N.J. Super. 135 (App. Div. 2004) (de novo review of agency factual‑issue determinations while according deference to agency interpretations)
- St. Peter's Univ. Hosp. v. Lacy, 185 N.J. 1 (2005) (court gives substantial deference to agency statutory/regulatory interpretation within its enforcement role)
- Utley v. Bd. of Review, Dep't of Labor, 194 N.J. 534 (2008) (agency interpretations are entitled to deference but not binding on pure legal questions)
- Dragon v. N.J. Dep't of Env't Prot., 405 N.J. Super. 478 (App. Div. 2009) (DEP may not waive substantive CAFRA requirements)
- In re Kallen, 92 N.J. 14 (1983) (agencies have flexible adjudicative powers but must preserve basic fairness and due process)
- Kelly v. Sterr, 62 N.J. 105 (1973) (administrative due process requires fair procedures and adequate protections)
- In re Camden Cty. Prosecutor, 394 N.J. Super. 15 (App. Div. 2007) (appellate review will not upset agency action absent arbitrariness or lack of evidentiary support)