*1 JERSEY, STATE OF NEW DEPARTMENT OF ENVIRONMENTAL PROTECTION, PLAINTIFF-RESPONDENT, STAVOLA, v. M.J. CLUB, T/A DRIFTWOOD CABANA DEFENDANT-APPEL LANT. JERSEY, STATE OF NEW DEPARTMENT OF ENVIRONMENTAL PROTECTION, PLAINTIFF-RESPONDENT, v. EDGEWATER BEACH, INC., CORPORATION, A NEW JERSEY T/A EDGE CLUB, WATER CABANA DEFENDANT-APPELLANT. Argued May 12, Decided July 1 986 1986. *3 Stavola, argued appellant the cause for M.J. Michael J. Gross (Giordano, Ciesla, attorneys; A. etc. Halleran & Sharlene briefs). Hunt, on the appellant Edge- Loring argued the cause for
Arthur Dennis Beach, Inc., water etc. General, Deputy Attorney argued the
Dorothy Highland, M. (W. Jr., Edwards, Attorney respondent Cary cause General Attorney Jersey, attorney; Clancy, Deputy of New Michael R. General, counsel). opinion
The of the Court was delivered GARIBALDI, J. (CAFRA), Facility Area Review Act N.J.S.A. Coastal -21, requires any person proposing to construct
13:19-1 to permit from the “facility” in the coastal area must obtain (DEP). Department “facility” Protection A Environmental extensively defined in CAFRA and includes the construction of housing develoрments dwelling “new of 25 or more units or equivalent.” Appellants, (Driftwood) Driftwood Cabana Club Edgewater (Edgewater), Cabana Club commenced construc- securing permits tion of certain cabana units without from the Specifically DEP. at issue is whether the beach club cabanas Edgewater at Driftwood and constitute “facilities” under CAF- question, RA. To resolve this we first must determine whether explicit implicit statutory DEP has the authority under CAFRA to hold that newly a beach club with its constructed encompassed phrase cabanas is “housing develop- within the equivalent” ment of 25 or more units or and hence is a “facility.” If question we affirmatively, answer first then we must determine DEP in regulations whether its rules and properly authority. exercised its We hold that DEP has implicit statutory аuthority regulate beach club cabanas but present regulations, has failed to do so in its rules and and that so, proceed through to do it must rulemaking rather than through adjudication. ad hoc
I Edgewater Driftwood operated have been as beach clubs Bright in Sea since the late 1950’s. In Driftwood decided upgrade existing renovate and club from one- and two- story housing structures change walk-in lockers and a one-story structure two-story 35 cabanas to a *4 structure luxury Depending upon cabanas. the model cho- sen, approximately feet, each cabana is square 350 to 400 including the entrance deck beach deck. Each includes a bath, dressing area, bar, cabinet, full refrigerator, wet electri- outlets, cal telеphone jacks. 1983, Edgewater also decided to upgrade renovate and lockers, houses,
club from 300 to 350 bath and cabanas to 100 luxury cabanas approximately whose size would by deck, bath, 10 foot electrical feet, include a full and that would cabinet, bar, refrigerator. outlets, telephone jacks, wet building code in either club meets of the cabanas None structures, they do not (BOCA) for for residential requirements facilities, heat, conditioning and are not and air kitchen have season, open only during the summer insulated. Each club midnight. The rules of each A.M. until 9:00 A.M. or 10:00 from ordinances, overnight occu- club, prohibit municipal as well as season, must retrieve all members pancy. At the close of The,clubs contend property and effects from club. personal people than accommodate fewer renovated cabanas will that the previously Both former cabanas. accommodated were to build condomini- approval DEP unsuccessfully sought have property. club on the beach town houses ums or Borough by the of Sea plans approved Both clubs’ site were per- received a sewer extension Bright Planning Board. Each exten- granting the sewer Although the letters mit from DEP. subject, the beach clubs were items to which sions listed twelve thereafter, Shortly each no reference to CAFRA. they made Transportation Department of permit from the club received roadway, which was access to the the construction of inspector for the building approval. DEP subject to made building permit to each Borough Bright then issued of Sea only project if a (these issued project are to be club for the permits). state, municipal county, and necessary all received inspector investigated the early April when a By sums of sites, expended substantial already had each club project was Driftwood construction of the money of the —50% on the Edgewater project. Based of the complete, as was 62% showing of DEP records along a review inspections, with inapplicabil- permit nor a determination neither a CAFRA Supervisor of developments, the proposed ity of CAFRA to Enforcement Bureau of Coastal Region of thе the North Shore club, to each and desist letter issued a cease and Field Services stop permit or to apply for a CAFRA it either to requiring *5 property construction and restore the its former to condition. Each club then received a letter from Director of the Division of affirming Coastal Resources the cease-and-desist Disputing authority letter. DEP to issue such orders, claiming upon reliance DEP’s failure to assert authority similar at least over three other beach clubs improved Shore that had constructed or 25 or more comparable inception 1973, since the cabanas of CAFRA in both ignored stop clubs orders and continued construction.1 Division, DEP then complaints filed verified Chancery seeking enjoin Edgewаter both Driftwood proceed- from ing with Chancery construction. The grant Division refused to injunctive case, concluding relief in either as a matter of law enabling legislation that “under the was not entitled to [DEP] regulate particular type this of construction.” The court based statutory interpretation this on the common-sense notion that a ' “housing beach development,” just club is not a as a cabana is equivalent Furthermore, “dwelling to a unit.” the Chan- cery Division concluded that even if CAFRA authorizes the adopt regulations liberally interpreting these statutory terms, regulations its current do not these embrace structures. “If regulations going such imposed,” to be the trial court held, “then being regulated those who are are entitled to know as a matter of process fundamental due what it is that do____” prohibited, they what it is have to appealed Division, then Appellate which reversed Division, Chancery remanding DEP, the matter to the with Judge dissenting. Cohen Dep’t State Envtl. Protection v. Stavola, (1985). N.J.Super. majority held that authority DEP, “the rulemaking granted coupled with the admonition liberally (N.J. that it is to be construed 13:19-20), when read context Crema v. New S.A.. the dissent’s 1Despite 633, assertion to the at implied contrary, post there has been no determination DEP that these cabanas will have an adverse on the environment. impact *6 (1983)], Protection, [286, Dep’t 94 N.J. Envtl. of ‘dwellings equivalent’ the that or their requires conclusion luxury sufficiently type include the and number of broad to Id., N.J.Super. 222. here.” at ‘cabanas’ constructed noting DEP itself disagreed, that omitted cabana The dissent developments it of its own definition clubs when wrote 7:7-2.1(b)(4). Judge Cohen purposes. N.J.A. for CAFRA C. regula- might that else be said about the concluded “[w]hatever live, definition, plainly places people where it is limited tion’s time____” he N.J.Super. And at 226. even for brief statute, ordinary meaning of the a beach argued that under the simply “housing development of 25 not a club with cabanas was equivalent.” Id. at 226-27. more units or 2:2-l(a), Edgewater and took Driftwood Pursuant Rule right. judgment appeal as of We now reverse this Appellate Division.
II statute, First, lay purposes provisions and of we out the Legis- effectuating regulations. together with the Act, finding Facilities Review enacted the Coastal Area lature suffering adverse now serious of the coastal area are that certain portions existing resulting from facility activity impacts environmental effects diversity uses which or tend to those multiple support would preclude preclude long-term, recreational aesthetic and social, economic, are in the and best the State. of all interests people 13:19-2.] 1N.J.S.A. Nevertheless, interests legitimate economic recognizing area, Legislature declared the coastal inhabitants of purpose: encourage land uses in order to improve the development compatible area within the framework of that economic inhabitants overall position strategy design the most which preserves environmentаl of a comprehensive fragile and ecologically development area from inappropriate sensitive safeguards facili- the construction of any environmental adequate provides in the coastal area. ties [/A]
N.J.S.A. 13:19-16 directs the Commissioner of DEP to devel- op design strategy, including such environmental “a delinea- appropriate development tion various areas for the of resi- types____” dential and industrial facilities various Accord- ingly, 13:19-17, under adopt, the DEP N.J.S.A. is authorized “to repeal regulations rules pur- amend to effectuate the poses finally, of this act.” And proclaims 13:19-20 N.J.S.A. “[tjhis liberally act shall be construed effectuate the purpose and intent thereof.” Legislature stop here,
But the giving did not the DEP free “facilities,” rein to define through rulemaking whether adju- *7 dication, including residential, industrial, commercial, as all or potential recreational structures with environmental adverse “ Instead, effects. ‘[fjacility’ CAFRA indicates that includes any of the designed facilities or following utilized for the purposes,” proceeding to enumerate purposes twelve and to list eighty-eight specific types of industrial and residential facilities. 13:19-3(c). heavy N.J.S.A. Most of these are industrial uses present pollution. that of risks substantial air and The water only arguably among one relevant them is:
(5) housing— Public facilities and landfills Sanitary (sanitary sewerage) Waste treatment plants highway Road, or construction. airport, housing dwelling New or 25 more units or developments equivalent. of existing dwelling the Expansion addition 25 or more developments by of of or units equivalent. [(Emphases added).] Exercising 13:19-17, authority its under N.J.S.A. the DEP adopted regulations interpreting rules “facility” and “dwelling equivalent.” 7:7-2.1(a) units Initially, or N.J.A.C. 13:19-3(c)(5). Then, restates the definitions set in out N.J.S.A. 7:7-2.1(b) provides: N.J.A.C. the term in its Department interprets statutory broadest sense “facility” safeguards so toas environmental the provide for construction adequate any in the coastal area. On the facility other hand, Department interprets excluding intent statutory as minor or relatively construction reconstruction. following follows____
To that terms end, as interpreted statutory existing or 4. “New developments developments by expansion of 25 or means: the addition more units or equivalent “dwelling v iv to vi units,” interpret “equivalent”] to[i interpret (for hotel The construction of 25 or more motel or tents rooms, campsites v. vehicles), dwelling home sites, recreational units an mobile institution, and/or nursing of 75 or or homes with a more the construction hospitals capacity beds; mooring floating more homes in a marina. For vi. The of 25 or purposes subparagraph, floating home as this a is defined a waterborne structure dwelling, designed and intended seasonal not for primarily permanent more use and which remain than 30 vessel, as a recreational will stationary consecutive days____ regulations so, explicitly neither in- And the statute nor among subject or “cabanas” “facili- cludes “beach clubs” ties.”
Ill contend, Chanсery Division and the dis- Petitioners plain reading Appellate agreed, in the Division sent grant authority indicates it does question that CAFRA regulate is no beach club cabanas. There authority regulate beach club explicitly grant does not cabanas, inquiry. this not end the but does authority grant long have held “that
We liberally order to agency is to be construed responsibilities accomplish statutory enable *8 powers imply readily such incidental the courts should that fully legislative intent.” necessary effectuate as are to Co., (1985) 102 N.J. Department v. Titan Constr. Labor give un (citations omitted). Although does not provide “facility,” the Act does to define limited discretion give DEP liberally and it does is to be construed that it pur to adopt regulations effectuate authority to rules designated Legislature has poses. DEP the that important purpose protecting our highly to achieve CAFRA’s impact. Ac environmental fragile coastal area from adverse DEP, effectively fulfill- toward cordingly, we hold that to work ing legislative CAFRA, purposes necessary has the implicit statutory authority promulgate regulations rules and interpret “equivalent” beach a seaside club cabana as to “a dwelling development of 25 or more units.” that the fact statute the DEP adopt authorizes regulations including among rules and cabanas the structures equivalent dwelling (as that are the purposes units far as the concerned) of CAFRA question does not answer wheth present regulations er the they rules and do We so. hold that do not.
Ironically, specific deference to the whole provi- scheme general policies adopted sions and use by the DEP counsels against deference to the DEP’s wishes in this action. one For thing, regulations specifically defining “dwelling units or equivalent” cabanas, bathhouses, do not include or beach clubs among equivalent dwelling those structures units. N.J.A.C. 7:7-2.1(b)(4)(v). another, For regulations declaring the general policies DEP’s use state that uses “[r]esort/recreation [including “recreational structures such as shall bathhouses”] priority industrial, have all housing, over other uses as [such 7:7E-7.3(b)(1)(h). Luxury and commercial N.J.A.C. ca- uses].” banas, conceding they greatly even differ from traditional cabanas, are more akin to recreational structures such bath houses than to housing develop- residential structures such as dwelling ments or imply units. do not wish We that recrea- tional uses and mutually residential uses are exclusive. But we note that the DEP itself has carried this over bifurcation of specific uses into its definition of structures that are the equivalent of traditional units—it differentiates float- ing “designed homes or primarily permanent intended as a dwelling” designed seasonal from those or intended for use as a analogous “recreational vessel.” The present distinction in the context camp- would be between residential structures such as sites mobile home sites and recreational structures such as bathhouses.
Furthermore, together regulations the read the statute and confusing language The is misleading. statute’s so are DEP, put that the general as not to the clubs notice usage, might to within of common deem cabanas come defiance “dwelling equivalent.” regulation’s And definition units or the equivalent” imply “dwelling specific was so as to of unit of meant exclusion many the inclusion structures them that of others. prior dealings the DEP
Additionally, the clubs’ with they process gave them no clue that the cabanas were purview reconstructing facilities within the would considered urges agency’s inter DEP that an administrative CAFRA. charged implementing it is with pretation of a statute that courts, interpretation if its given deference should be enough, true this maxim would have This is but reasonable. longstanding agency’s greater force this a case were statute, opposed application its first interpretation of (and situa implementing regulation) a new statute its attempted apply DEP This is the first time that tion. Granted, tradi deluxe unlike CAFRA to cabanas. cabanas Shore, Chancery Division as the tional cabanas on as bath they fact are not the same But the observed. dwelling equivalent of units. make houses does not them change put beach clubs like was not so fundamental as to regard Edgewater on notice that would Driftwood and developments” especially not “housing when them as — Club, Beach Deal applied to the Tradewinds had not moreover, Towers, when the DEP Casino, End and West permits without extension approved both clubs’ sewer had mentioning applicability CAFRA. explicitly in regulations nor the
Neither the statute of 25 housing development “new cabanas as a cludes beach club specificity Indeed the equivalent.” units or or more that it could regulations supports the club’s contention DEP’s change fairly anticipate DEP would reasonably or *10 436
position find that certain still undefined “deluxe beach club fact, subject cabanas” were to CAFRA. for DEP to so do go against regulatory would its own scheme. The clubs good planned their in reconstruction faith reliance on the ab- any previous by of attempt regulate sence DEP to club beach By cabanas. DEP first time warned them of new policy, many “deluxe each had cabana” club demolished of their completed major portions old cabanas and had their of renova- projects at tion substantial costs. At that stage advanced construction, project given the previously all mentioned consid- erations, fundamentally it would be apply unfair particular to these cabanas.2
IV
Finally, given
dealings,
this course of
we hold
in
.
subject
authority,
order to
beach club cabanas to its
DEP must
proceed through
rulemaking process
through
rather
than
hoc
ad
adjudication.
It
is well-established
agency
that an
2Any
agency
determining
public
in
best
how
to effectuate
policy
by applying principles
is also limited
of fundamental fairness.
haveWe
past applied
principles
beyond
in the
such
of fundamental fairness
those
Constitution,
required by
Arndt,
agency
to аdministrative
See
actions.
In re
(1975);
Bd.,
Jersey
(1971).
437 adjudica- statutory authority either to exercise its discretion great rulemaking, agencies enjoy a deal of and that tion likely proceedings to achieve flexibility selecting most and Exch. Comm’n v. Chen- Securities regulatory aims. their 1580-81, 1575, Corp., 67 S.Ct. 194, 202-03, 91 ery 332 US. (1947); Department Labor v. Titan 1995, 2002 L.Ed. Metromedia, Co., v. Di- 1, (1985); 102 N.J. Inc. Constr. 13 rectоr, Taxation, Crema v. New (1984); Div. N.J. Protection, Dep’t (1983); N.J. Envtl. *11 Comm’n, Bally Mfg. Corp. v. New Casino Control Nevertheless, (1982) (Handler, J., concurring). N.J. rulemaking administrative agency in the between the discretion Crema, supra, N.J. at 299. adjudication has limits. and Metromedia, prior from synthesized we our decisions that, present, of rules if favor features relevant over ad hoc rulemaking adjudica- adoption process tion: agency it determina- a conclusion would be warranted if that appears Such (1) following is intended to have circumstances, in or most of the tion, many general large segment regulated coverage encompassing or a wide (2) group; a select is intended be rather than an individual or narrow
public, (3) designed generally to all situated is and similаrly persons; applied uniformly (4) legal a that in future cases, is, prescribes operate only prospectively; or and clearly or directive that is not otherwise expressly by standard provided (5) enabling reflects an authorization; from the statutory inferable obviously (i) not in official and was any administrative policy previously expressed (ii) adjudication agency material rule, or or constitutes a determination, explicit subject significant change on the identical from a clear past position and (6) regulatory in on administrative and reflects a decision matter; policy general law or These relevant factors nature of the policy. interpretation given singly case whether the combination, eithеr or determine a can, rule-making adjudication. through agency action rendered essential must be N.J. at [97 331-32.] case, we are the Metromedia Applying standards to this regulation DEP’s beach club cabanas not satisfied that Here, authorizing regulation. DEP’s rule or valid without supported by plain cabanas is not regulation of beach club Further, DEP reading regulations. or the intend to previously regulated cabanas and still does not cabanas, regulate only all what it determines to be “deluxe” regulate cabanas. The determination to beach these club caba- significant nas therefore constitutes a change material and past matter, policy subject from DEP’s on satisfy- identical thus ing guidelines (4) (5). Metromedia Nos. and alleges rulemаking necessary is not here because ruling parties is limited to the actual and the “[t]he actual projects fact, declaratory involved. In such ruling would be inadequate any proposed to bind other projects deluxe cabanas public large.” disagree at We with this narrow inter- pretation sure, power. ruling the DEP’s this To has an only if, immediate effect on these beach clubs. But as DEP hold, implied contends as we DEP has statutory authority cabanas, to regulate ruling beach certain club then its in this apply case would to all contemplating other beach clubs con- structing renovating cabanas, falling thus within Metrome- (1), guidelines (2) (3). dia Nos.
Moreover, to allow DEP’s ad hoc determination as to these changed clubs to serve sufficient position as notice on imposes beach club cabanas an unfair burden other beach where, particularly here, DEP’s decision lacks stan- clubs— dards which other beach they clubs could determine whether *12 subject regulation. specific to The any lack of standard public results in to confusion the and to DEP. Promulgating a regulation through rulemaking only aid will not beach club formulating owners DEP guidelines but also in for its own inspectors to determine whether enough” a cabana is “deluxe subject regulations. to DEP
V conclusion, statutory we hold that DEP has authority interpret “housing developments of 25 or more units equivalent” cabanas, to include beach club but that it has not done in its If regulations. so subject wishes to cabanas to authority, it must do through rulemaking. so For DEP to funda- would be adjudication in this case through hoc do so ad princi- process due under violate mentally unfair and would Crema, Metromedia, and Titan. expressed ples we have Driftwood and against taken Accordingly, the actions Appellate of the Divi- judgment Edgewater are invalid and is reversed. sion
HANDLER, J., dissenting. appellants appeals, each consolidated
In these substantial, luxury cabana upon the construction embarked developments The directly the beachfront. developments drastically upon sensi- impacting potential for the obvious have Depart- concerns of the regulatory areas within tive land (DEP) in the as reflected Protection of Environmental ment (CAFRA). Act Facility Review Area comprehensive Coastal developments discovering these Upon to -21. 13:19-1 N.J.S.A. develop- sought have each of promptly progress, DEP regulations. proceed under CAFRA applications and ers submit knowledge with full construction They refused and continued subject to CAF- to be improvements DEP considered the in the position DEP’s vindicated Litigation of the matter RA. that result —not now reverses The Court Appellate Division. subject to developments are these extensive cabana because adopt a not earlier that DEP did the reason but for to be as such designated cabanas expressly specific rule that regulations. statute included under the CAFRA adoption that the perception majority’s I understand the can including caba- explicitly clearly and express rule such an of a regulations would existing CAFRA coverage of nas within however, conclusion, share its I cannot appropriate. have been to the action rule is fatal explicit of such that the absence proceedings judicial DEP in this case. by taken completely fair coverage were adjudication in an resulted opportunity to chal- ample notice giving them parties, I interests. their own position and to defend lenge DEP’s therefore dissent. *13 pointed Court, by
As out Stavola M.J. t/a Driftwood (Driftwood) upon develop- Cabana Club embarked an extensive replacing changing ment and 35 lockers cabanas with 134 luxury cabanas. square Each cabana is between 300-400 feet bаth, dressing area, parlor, bar, in area with full wet electrical outlets, Similarly, Edgewater Beach, (Edge- deck. Inc. water) upon building cabanas, embarked luxury of 100 new replacing complex of 300 lockers and cabanas. Each new by cabana interior will measure 10 feet 16 feet and include a bath, bar, outlets, parlor, full phone wet electrical jacks, and pool will be extended a 10-foot overlooking deck Both developments beach. are on the beachfront. DEP discovered the Driftwood construction in April 1985. inspection, Based and on of DEP review records show- ing permit no CAFRA nor a inapplicability determination of the CAFRA, the Bureau of Coastal Enforcement and Field Driftwood, requiring Services issued a cease and desist letter apply Driftwood permit either to for a stop or to property construction and restore the to its former condition. ignore stop Driftwood elected to order and continued con- Edgewater struction. The construction was also in discovered April 1985. A similar cease and desist notice sent to was Edgewater, which it. disregard chose Chancery Division,
DEP was in unsuccessful which found that these equivalent “dwelling cabanas were not units” the contemplation Division, within Appellate CAFRA. The however, reversed N.J.Super. and remanded to DEP. 206 (1985). The found majority ordinary cabanas were not changing bathouses suitable for resting, clothes and but were living large built for part day, in for a were and thus equivalent to dwelling irrespеctive units overnight whether sleeping permissible. Id. at 223. Court, reversing Appellate Division, hyper- takes
technical making, view of administrative failing law to consider procedural the need for flexibility wide discretion vested
441 regula- sensible modes of agencies to determine administrative agen- regulatory The discretion accorded administrative tion. adaptation procedures effectu- in their cies selection long jurisdictional responsibilities has been acknowl- ate their Corp., Chenery v. edged. See and Exch. Comm’n Securities 1580, 1995, 194, 202-03, 1575, 91 L.Ed. 2002 332 67 S.Ct. U.S. (1947) II); (Chenery see also In re Administrative Uniform 85, (1982) (a high Rules, degree of 90 N.J. 92 Procedural reposes in exercising procedural in choice the admin- discretion agency). istrative agencies is proсedural latitude accorded administrative by those that relevant roughly
bounded considerations determining regulatory should take form of action whether adjudication. There rule or an administrative an administrative variety regulatory and forms of procedural are a choices large these occupy that area between outer bounds action of administrative discretion. regulatory spectrum lies administrative
On one end of the
appropriate
an
rule-making.
generally required or
when
It is
applied prospectively, as
agency
is intended to be
determination
general
expression
policy
or
of administrative
with
a
standard
effect;
agency
when
ac-
widespread coverage
continuing
lаrge
policy
is
“broad
issues”
affect
tion
concerned with
segment
regulated
general public, rule-making as such
implicated. Similarly,
an
action that effects a materi-
rule-making.
for
change
existing
proper subject
is a
al
law
330;
Metromedia,
v.
supra, 97 N.J. at
Crema New
See
Protection,
286,
(1983); Davis,
302
Dep’t
94
Envtl.
N.J.
(2d
Supp.1982).
186
ed.
Treatise
7:25 at
Administrative Law
§
ordinarily
Agency
of this
should
be enunci-
determinations
kind
Metromedia,
an
rule.
ated as
administrative
N.J.
301-02;
(1984); Crema, supra, 94
see
N.J. at
also N.J.S.A.
(an
52:14B-2(e)
implements
agency action or determination
interprets
policy can constitute
administrative
law or
Furthermore,
rule).
agency action
where the
concentrates
litigants
transcend
of the individual
upon concerns that
those
implicates
genеral
policy,
matters
rule-
procedures
making
appropriate
are deemed
and should be in-
Metromedia, supra,
330-31;
See
at
voked.
97 N.J
Dougherty
Servs.,
(1982);
Department
v.
Human
1N.J.
Texter v.
Servs.,
Department
(1982). In
Human
These necessarily reposed in administra- discretion that are breadth of responsibilities. The fulfilling regulatory agencies in their tive rule-making adjudication and procedural choices as between delegated authority and lie within the discre- aspects of that Corp. v. New agencies. Bally Mfg. tion of administrative Comm’n, supra, 339. These 85 N.J. at Jersey Casino Control strongly judicial deference to counsel therefore considerations adjudication the administrative choice between mak- rule ing. case,
In this the DEP is entitled to certain deference with respect interpretation statute, charged to its of the it which is Legislature enforcing. Peper with v. Princeton Univ. Trustees, 55, (1978); Honachefsky Bd. 69-70 N.J. v. New Comm’n, N.J.Super. (App. Civil Service Div.1980). procedural Its enforcing choice in the statute also ought respected. Division, Appellate be this with endorsement, correctly rule-making Court’s found that the au- thority DEP, granted coupled with the admonition of CAFRA (N.J.S.A. liberally 13:19-20), that it is to requires be construed “dwellings equivalent” the conclusion that presently or their expressed agency’s regulations in the sufficiently broad type include luxury and number of cabanas constructed N.J.Super. here. 206 222. at CAFRA, facility any Under improvement include would designed public housing, or used for facilities new developments dwellings equivalent, of 25 or more units or expansion existing developments by of 25 or addition equivalent. 13:19-3c(5). more units or N.J.S.A. Sim- ilarly, 7:7-2.1(a), regulation adopted pursuant N.J.A.C. CAFRA, 13:19-3c(5). restates the out in definitions set N.J.S.A. 7:7-2.1(b) provides Depаrtment interpret N.J.A.C. that the statutory “facility” provide term its broadest as to sense adequate safeguards any environmental for the construction of facility in the coastal area. is authorized under the Act to adopt Act, regulations to purposes including effect the regulation of “facilities.” 13:19-17. CAFRA also N.J.S.A. “[tjhis provides liberally shall act construed to effectu- purpose ate and intent thereof.” 13:19-20. N.J.S.A. us, the case before I cannot within this of reference frame stigmatize unfounded, arbitrary, the actions of DEP as *17 DEP, upon discovering a clearly unauthorized. situation within statutory responsibility, quickly, the confines its moved they still under developments the were investigating while concluding ascertaining and Upon the facts construction. develоpments, jurisdiction encompassed these regulatory developers, to and desist notice both DEP issued cease apply stop or permit to for a CAFRA requiring them either property to its former condition. and restore construction reasonably application entailed the DEP’s determination statutory regulatory particular and standards facts. clear Moreover, parties given opportunity full to test this were unfairness, abrupt There or the merits. is no position on administrative intermeddling, oppressive arbitrary notice that the developers, prompt The with clear and conduct. CAFRA, ignore subject simply chose projects were con- legislative interdiction and continued at their risk. struction own is not precise of a rule in this case fatal more absence fairly could be application CAFRA these cabanas
because earlier, anticipated policy. As noted expressed under substantially similar to impacts environmental cabanas create Moreover, do here actions traditional facilities. existing properly changes in law and cannot material constitute rule-making. These vires de regarded ultra facto inform- prompt action with factors combined subject to Edgewater that cabanas were ing Stavola surprise. Ac- prejudicial an absence of CAFRA demonstrate authority under N.J.S.A. cordingly, DEP should have the statutes, rules, State’s environmental to enforce the 13:lD-9 regulations. judgment Appel- affirm the For reasons I would these late Division. WILENTZ, CLIF- and Justices
For reversal —Chief Justice POLLOCK, FORD, and STEIN—5. GARIBALDI Affirmed —1. participating
Not —1.