Pinelands Preservation Alliance v. State
436 N.J. Super. 510
| N.J. Super. Ct. App. Div. | 2014Background
- Jaylin Holdings sought CAFRA and related permits to build a large Walmart and site improvements on a 43-acre parcel straddling Toms River and Manchester Townships in Ocean County; the site contains northern pine snake habitat.
- DEP denied earlier (2006, 2010) permit applications because of adverse impacts to threatened northern pine snake habitat; Jaylin revised designs, bought multiple off-site parcels for habitat preservation/enhancement, and proposed on-site buffers and exclusion fencing.
- DEP developed and applied a new Habitat Evaluation Method (HEM) for northern pine snakes in 2010; agency and applicant HEM estimates were similar and DEP concluded no net loss of habitat value.
- In December 2011 Jaylin and DEP entered a settlement stipulation; DEP issued the CAFRA permit in April 2012 with conditions including on- and off-site conservation restrictions and monitoring requirements.
- Challenges by environmental groups and local parties alleged DEP improperly waived regulations, adopted new methodology without rulemaking, ignored Pinelands rules, and misapplied impervious cover limits tied to coastal center boundaries and the Permit Extension Act (PEA).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. May DEP use a "net" habitat-value approach and off-site mitigation to satisfy N.J.A.C. 7:7E-3.38? | Regulation prohibits any development that adversely affects the protected habitat on-site or nearby; off-site mitigation and netting is not allowed. | CZM rules allow case-by-case mitigation; N.J.A.C. 7:7E-1.6 permits on- or off-site mitigation and net calculations consistent with coastal goals. | Court: DEP may use a net calculation and consider on- and off-site mitigation when consistent with rules (N.J.A.C. 7:7E-1.6 and 3.38). |
| 2. Was DEP’s use/development of the HEM a forbidden substantive rulemaking (APA violation) or unsupported scientifically? | The HEM constituted a new rule adopted without APA procedures and relied on improper science. | HEM is a technical agency method developed with expert input, using accepted literature and mapping; courts must defer on complex scientific methodology. | Court: No APA violation; substantial deference to DEP on HEM development and application; agency used accepted ecological principles and expert input. |
| 3. Should DEP have sought formal advice from ENSAC before applying HEM and issuing permit? | DEP ignored ENSAC and DEP’s own experts who warned of impacts; ENSAC input is required. | ENSAC has no legal role to approve CAFRA habitat development decisions; DEP is not legally obligated to follow ENSAC recommendations. | Court: No error—formal ENSAC input not required for CAFRA habitat determinations; DEP properly relied on ENSP expertise. |
| 4. Did DEP correctly apply impervious cover limits (80% vs. 30%) by relying on Jaylin’s 2004 application and the PEA? | Toms River center designation expired and PEA doesn’t preserve it for this site; applicable limit is 30% (Coastal Suburban). | Jaylin’s 2004 application kept rights alive; PEA extended center designations so 80% could apply to Toms River portion. | Court: DEP erred relying on 2004 application to apply N.J.A.C. 7:7E-5B.6(f); PEA does extend center designations but DEP must apply N.J.A.C. 7:7E-5B.6(g) and determine whether any portion lies outside center or in excluded areas before setting impervious limit. Permit reversed and remanded for proper boundary/exclusion analysis. |
Key Cases Cited
- In re Protest of Coastal Permit Program Rules, 354 N.J. Super. 293 (App. Div.) (discussion of CAFRA findings and review standards)
- Dragon v. N.J. Dep’t of Envtl. Prot., 405 N.J. Super. 478 (App. Div.) (agency may not use settlement to waive substantive CZM rules)
- In re CAFRA Permit No. 87-0959-5 Issued to Gateway Assocs., 152 N.J. 287 (superseding discussion of agency review of modified applications)
- Univ. Cottage Club of Princeton N.J. Corp. v. N.J. Dep’t of Envtl. Prot., 191 N.J. 38 (App. Div. standards for judicial reversal of agency actions)
- In re N.J.A.C. 7:1B-1.1 et seq., 431 N.J. Super. 100 (App. Div.) (agency rule interpretation and waiver principles)
- GAF Corp. v. N.J. Dep’t of Envtl. Prot., 214 N.J. Super. 446 (App. Div.) (deference to agency on complex scientific methodologies)