"An issue that is not briefed is deemed waived upon appeal."
How later courts described this case
- "An issue that is not briefed is deemed waived upon appeal."
Written by the judges who cited it.
The opinion
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2198-23
IN THE MATTER OF REQUEST
FOR ADJUDICATORY HEARING
ON ACTION OF TIDELANDS
RESOURCE COUNCIL.
_____________________________
Argued September 10, 2025 – Decided September 25, 2025
Before Judges Gummer and Paganelli.
On appeal from the New Jersey Department of
Environmental Protection.
R.S. Gasiorowski argued the cause for appellant Jersey
Shore Beach and Boardwalk, Inc. (Gasiorowski &
Holobinko, attorneys; R.S. Gasiorowski, on the briefs).
David A. Clark argued the cause for respondent
Borough of Keansburg (Dilworth Paxson LLP,
attorneys; David A. Clark, of counsel and on the brief;
John M. Glynn, on the brief).
Charlie A. Stegner-Freitag, Deputy Attorney General,
argued the cause for respondents New Jersey
Department of Environmental Protection and New
Jersey Tidelands Resource Council (Matthew J.
Platkin, Attorney General, attorney; Sookie Bae-Park,
Assistant Attorney General, of counsel; Charlie A.
Stegner-Freitag, on the brief).
PER CURIAM
Jersey Shore Beach and Boardwalk, Inc. (Jersey Shore) appeals from the
Department of Environmental Protection's (DEP) denial of its request for an
adjudicatory hearing. Jersey Shore sought the adjudicatory hearing to contest
the Tidelands Resource Council's (TRC) approval of a grant to the Borough of
Keansburg (Keansburg).1 Because we are convinced Jersey Shore has not
sustained its burden to establish the DEP's decision to deny the hearing was
arbitrary, capricious or unreasonable, we affirm.
1
The TRC is "within the [DEP]." N.J.S.A. 13:1B-10. The Legislature found
and declare[d] that the [TRC] is the public body
responsible for the stewardship of the State's riparian
lands; that it is the responsibility of the council to
determine whether applications for the lease, license, or
grant of riparian lands are in the public interest; that it
is the responsibility of the council to determine, in
assessing applications for the lease, license, or grant of
riparian lands, whether the State may have a future use
for such lands; that the council must obtain the fair
market value for the lease, license or grant of riparian
lands.
[N.J.S.A. 12:3-12.1.]
A-2198-23
2
We are familiar with the parties' litigation regarding Keansburg's ongoing
redevelopment efforts.2 We glean the relevant facts from the record. According
to the 1940 riparian lease, Keansburg is "the owner of lands [along Beachway
Avenue] fronting on Raritan Bay." The lands are designated "on the Keansburg
tax map as Block 184, former Lot 3." In 1940, the State leased those lands that
were under the water to Keansburg. The lease gave Keansburg the ability to
"exclude the tidewater, from so much of the lands . . . as lie under the tidewater,
by filling in or otherwise improving the same." Subsequent leases allowed the
site to be used as a paid public parking lot. As a result of beach-filling projects,
the land increased in size and Keansburg expanded the public parking lot. In
the mid-2000s, Keansburg adopted the Beachway Avenue Waterfront
2
See Jersey Shore Beach & Boardwalk Co. v. Borough of Keansburg, No. A-
0621-23 (App. Div. Dec. 10, 2024), certif. denied, 260 N.J. 290 (2025), wherein
we affirmed the trial court's order that, among other things, established Jersey
Shore had no interest in Lots 3 and 3.01; and Jersey Shore Beach & Boardwalk
Co. v. Borough of Keansburg, No. A-2379-22 (App. Div. Jan. 13, 2025),
wherein we affirmed the trial court's orders granting Keansburg, and related
entities, summary judgment on Jersey Shore's complaint that Keansburg's
Second Amended Redevelopment Plan facially violated the Public Trust
Doctrine (PTD) and was improperly adopted and inconsistent with Keansburg's
Master Plan. Further, we are aware of a pending appeal in Jersey Shore Beach
& Boardwalk Co. v. N.J. Tidelands Resource Council, No. A-0684-24, wherein
Jersey Shore contends the trial court erred in dismissing its Law Division
complaint, challenging the merits of the TRC's decision to provide Keansburg
with the grant.
A-2198-23
3
Redevelopment Plan and declared the land adjoining Beachway Avenue as an
area in need of redevelopment. Keansburg planned to sell the parking lot and
allow redevelopment of the property as a mixed-use housing and commercial
development.
In 2019, the TRC considered Keansburg's application for a license for
property located at Block 184, New Lot 3.02. The TRC's meeting minutes noted
Keansburg "recently subdivided [Lot 3], and . . . h[ad] a grant application for
this parcel, but the grant application c[ould no]t move forward until [Keansburg]
resolve[d a] back rent issue for the license."
Further, the minutes reflect Jersey Shore's counsel and its principal
appeared at the hearing and objected to the approval of the license. Counsel
stated Jersey Shore's "objection [wa]s not to the continued use of this property
for public parking or public use . . . access to the beach." However, Jersey Shore
objected to the "interim step." Counsel noted Keansburg did "not intend to
continue to utilize this property. . . . [Instead,] if [it] secure[d] a grant," it would
"sell the property for private development." Thus, Jersey Shore requested
"public use" conditions be imposed on the license if approved. Jersey Shore
noted it would address Keansburg's grant application when it was filed. The
A-2198-23
4
TRC voted to approve a "license subject to the public use provisions specifically
allowing for . . . paid public parking."
On December 6, 2022, the TRC considered Keansburg's application "for
a riparian grant to obtain title to Lot 3.02," and clear the tidelands interest to
3.02. The DEP noted only Jersey Shore's counsel attended the meeting and
objected to the riparian grant. The TRC approved the grant.
On April 20, 2023, Jersey Shore requested an adjudicatory hearing to
challenge the grant. Jersey Shore stated the grant should either be denied "or
alternatively include a permanent deed restriction on future use of the property
as anything other than a public parking lot so as to continue to comply with the
[s]tatutory and [c]ommon [l]aw [PTD]." In addition, in an accompanying letter,
Jersey Shore stated it was relying upon N.J.A.C. 7:14A-17.1 to -17.33 to
establish its right to an adjudicatory hearing.
3
The DEP and Keansburg note the cited code is part of the New Jersey Pollutant
Discharge Elimination System (NJPDES), and they agree the code is not
pertinent to the TRC's or the DEP's decisions in this matter. Jersey Shore has
not argued the code's application on appeal; therefore, the argument is waived.
See N.J. Dep't of Env't Prot. v. Alloway Twp., 438 N.J. Super. 501, 505 n.2
(App. Div. 2015) ("An issue that is not briefed is deemed waived upon appeal.").
A-2198-23
5
Keansburg opposed Jersey Shore's request contending it was procedurally
flawed and should be denied. Keansburg asserted "the regulations cited by
Jersey Shore d[id] not support Jersey Shore's request for relief."
On February 7, 2024, the DEP denied Jersey Shore's request for an
adjudicatory hearing. The DEP explained:
For parties other than the applicant or the agency to
have standing, they must demonstrate: (1) a right to a
hearing under the applicable statute, or (2) a
"particularized property interest" of constitutional
significance. [N.J.S.A. 52:14B-3.2]; see also In re
Freshwater Wetlands Statewide Gen. Permits, 185 N.J.
452, 463-64 (2006). The standing requirement exists,
in part, to ensure permit application processing is not
bogged down by time-consuming and costly hearings
which consume substantial public and private
resources. In re Riverview Dev., LLC, 411 N.J. Super.
409, 424 (App. Div. 2010).
[(Citations reformatted).]
Further, the DEP stated Jersey Shore sought:
[A] hearing on a TRC [g]rant issued pursuant to
N.J.S.A. 12:3-1 to -28 and N.J.S.A. 13:1B-13 to -13.14
(Tidelands Act). The Tidelands Act does not grant
statutory hearing rights to third party objectors. Absent
a statutory provision that expressly confers a right to a
hearing, an administrative agency cannot create such a
right by mere regulation. . . . [Jersey Shore] has
identified the adjudicatory hearing provision of the
NJPDES Rules, N.J.A.C. 7:14A-l7.2, to assert a right to
an adjudicatory hearing. This provision is inapplicable
A-2198-23
6
to the TRC's decision as the [g]rant was made pursuant
to the Tidelands Act.
[(Citation omitted).]
In addition, the DEP found because Jersey Shore had
no statutory right [it] must demonstrate a
"particularized property interest" of constitutional
significance. N.J.S.A. 52:14B-2, -3.1(b) to (d), -3.2; In
re Riverview, 411 N.J. Super. at 423.
As the Supreme Court has pointed out, "third parties
generally are not able to meet . . . this rigorous review
standard [particularized property interest]." In re
NJPDES No. NJ0025241, 185 N.J. 474, 482 (2006); see
also In re Freshwater Wetlands, 185 N.J. at 464. Courts
have consistently held that proximity or any type of
generalized property right shared with other property
owners, such as recreational interests, traffic, views,
quality of life, and property values, is insufficient to
demonstrate a particularized right required to establish
third-party standing for a hearing. . . .
[Jersey Shore] has challenged the [DEP]'s decision to
approve the [g]rant but has not articulated any claim of
a constitutionally protected individual property interest
affected thereby. [Jersey Shore] alleges only
generalized property rights, indistinguishable from
those shared by other neighboring property owners,
which do not provide constitutional standing. Property
value and quality of life (use and enjoyment), . . . do
not rise to a particularized property interest sufficient
to create a right to an adjudicatory hearing. Likewise,
the [PTD], falls short of creating a particularized
property interest. Instead, the common law [PTD]
ensures certain public access rights to all persons,
generally.
A-2198-23
7
[(Second alteration in original) (citation reformatted).]
Finally, the DEP noted that although Jersey Shore was not entitled to an
adjudicatory hearing, Jersey Shore "did avail itself of . . . opportunities for input
through the tidelands grant process . . . [as it] participated in public hearings
before the [TRC] and submitted public comments in opposition."
On appeal, Jersey Shore contends "the []DEP is shirking, abdicating and
ignoring their legal duty and are not stopping the TRC's approval of an
unrestricted sale of the . . . [g]rant to . . . Keansburg." It asserts a "right to force
the []DEP to acknowledge their statutory mandate and to abide by their statutory
mandate" through an adjudicatory hearing as provided under the Administrative
Procedure Act (APA), N.J.S.A. 52:14B-1 to -24.4 Jersey Shore argues it has a
4
Jersey Shore also argues a
proposed "alternate site" for parking, Lot 3.01, is the
subject matter of other litigation between Jersey Shore
and . . . Keansburg wherein Jersey Shore is challenging
the ownership of that area proposed for alternative
parking. See Jersey Shore Beach and Boardwalk
Company, Inc. v. Borough of Keansburg, Docket No.:
A-621-23. If in fact Jersey Shore is successful in that
litigation there will be no area available for
"alternative" parking.
However, we affirmed the trial court's order that Keansburg is the owner of Lot
3.01 and Jersey Shore has no interest therein. Therefore, we do not address this
argument.
A-2198-23
8
right to a hearing because it is a "person who has particularized property interest
sufficient to require a hearing on constitutional or statutory grounds," quoting
N.J.S.A. 52:14B-3.2.
Jersey Shore notes it "owns and operates [the] 'Keansburg Amusement
Park' which has been an ongoing and substantial oceanfront seasonal
recreational business for well over 100 years." Further, Jersey Shore contends
"it owns properties in Keansburg" and asserts its "customers have long been able
to use the 500[ plus] public parking spaces" to "patron[ize] . . . the Keansburg
Amusement Park" and "as a point of access to the navigable waters of the Raritan
Bay."
Therefore, Jersey Shore asserts it is vested:
[A]s a business entity with status of one that has ". . .
particularized property interests . . ." and/or a business
entity that is ". . . directly affected by a permitting
decision . . ." within the meaning of N.J.S.A. 52:14B-
3.1 of the [APA] - thereby in turn qualifying [it as] a
"person who has particularized property interest
sufficient to require a hearing on constitutional or
statutory grounds . . . [.]"
Further, Jersey Shore contends the PTD, N.J.S.A. 13:1D-150 to -156, and
the public access requirements of N.J.A.C. 7:7-16.9, provide it with statutory
grounds for an adjudicatory hearing "within the meaning of N.J.S.A. 52:14B-
A-2198-23
9
3.2." It asserts that pursuant to "N.J.S.A. 52:14B-3.l and N.J.S.A. 52:14B-3.2,"
it
has "particularized property interests" and . . . would be
"directly affected" by the administrative decision to sell
a [t]idelands [g]rant of the subject property to
Keansburg without a [d]eed [r]estriction that would
result in 500[ plus] parking spaces being permanently
removed without replacement, [therefore it] most
certainly had a "particularized property interest
sufficient to require a hearing on . . . statutory grounds"
within the meaning of the law.
In response, the DEP contends "[c]ase law has long established that the
right to a trial-type adjudicatory hearing is not allowed 'except to an appellant
who can show a statutory right or a constitutionally protected property interest,"
quoting In re Riverview, 411 N.J. Super. at 434. Further, it asserts N.J.S.A.
52:14B-3.1 and N.J.S.A. 52:14B-3.3(a) "prohibit[] State agencies from
promulgating 'any rule or regulation that would allow a third-party to appeal a
permit decision' unless 'specifically authorized to do so by federal law or State
statute.'"
The DEP asserts neither the PTD, the public access requirements of
N.J.A.C. 7:7-16.9, "nor the applicable tidelands statutes (N.J.S.A. 12:3-1 to -28
[and] N.J.S.A. 13:1B-13 to -13.14) provide a right to an adjudicatory hearing,
and" Jersey Shore's "asserted property interests are generalized property rights
A-2198-23
10
that do not rise to the level of being constitutionally significant ." Keansburg
offers similar arguments in response to Jersey Shore's appeal.
"An appellate court reviews a final agency decision with deference." In
re Freshwater Wetlands Gen. Permit No. 16, 379 N.J. Super. 331, 341 (App.
Div. 2005). "The burden of demonstrating that the agency's action was arbitrary,
capricious or unreasonable rests upon the [party] challenging the administrative
action." Lavezzi v. State, 219 N.J. 163, 171 (2014) (alteration in original)
(quoting In re J.S., 431 N.J. Super. 321, 329 (App. Div. 2013)).
Therefore, Jersey Shore must demonstrate that the DEP's denial of its
request for an adjudicatory hearing was arbitrary, capricious or unreasonable,
meaning the denial:
(1) . . . violate[d] express or implied legislative policies,
that is, . . . the agency [did not] follow the law; (2) . . .
the record [did not] contain[] substantial evidence to
support the findings on which the agency based its
action; and (3) . . . in applying the legislative policies
to the facts, the agency clearly erred in reaching a
conclusion that could not reasonably have been made
on a showing of the relevant factors.
[Lavezzi, 219 N.J. at 171-72 (quoting In re Stallworth,
208 N.J. 182, 194 (2011)).]
"Although the APA provides a road map for navigating administrative
proceedings, it does not create a substantive right to an administrative hearing."
A-2198-23
11
In re Fanelli, 174 N.J. 165, 172 (2002). "[T]he right to an administrative hearing
generally must be found outside the APA in another statute or constitutional
provision[.]" Ibid. (alterations in original) (quoting Christ Hosp. v. Dep't of
Health and Senior Servs., 330 N.J. Super. 55, 61 (App. Div. 2000)).
"[T]hird parties generally are not able to meet the stringent requirements
for constitutional standing in respect of an adjudicatory hearing." In re NJPDES
Permit No. NJ0025241, 185 N.J. at 482. "In determining whether administrative
procedures are 'constitutionally sufficient,' New Jersey courts have used
different formulas, sometimes looking to the analysis set forth by the United
States Supreme Court in Mathews v. Eldridge, 424 U.S. 319, 335 (1976)." In re
Freshwater Wetlands, 185 N.J. at 467 (citation reformatted). In Mathews, the
United States Supreme Court held:
[D]ue process generally requires consideration of three
distinct factors: First, the private interest that will be
affected by the official action; second, the risk of an
erroneous deprivation of such interest through the
procedures used, and the probable value, if any, of
additional or substitute procedural safeguards; and
finally, the [g]overnment's interest, including the
function involved and the fiscal and administrative
burdens that the additional or substitute procedural
requirement would entail.
[424 U.S. at 335.]
A-2198-23
12
"Other times, our courts have followed the 'particularized property right'
test set forth in Cunningham v. Department of Civil Service, 69 N.J. 13, 23-24
(1975)." In re Freshwater Wetlands, 185 N.J. at 467 (citation reformatted). In
Cunningham, our Court explained an adjudicatory hearing is required when
"[c]ontested factual issues . . . may be presented . . . which are targeted at a
person" and where a "party affected by the administrative action ha[s] a
safeguarded interest. Particularized property rights or other special interests
must exist." 69 N.J. at 23-24 (citations omitted).
Applying these well-established principles, we conclude Jersey Shore has
not carried its burden to show the DEP erroneously denied its request for an
adjudicatory hearing. Jersey Shore cites to no statutory language or provision
that imbue it with the right to an adjudicatory hearing.
Further, Jersey Shore's asserted vested business interest—derived from its
customers' use of the parking lot as well as their access to the water—is not the
"particularized property interest" required for a hearing. As the DEP explained
in rejecting Jersey Shore's request for an adjudicatory hearing, Jersey Shore has
a "generalized" interest "shared with other property owners." Such an interest
is insufficient to confer upon it the right to an adjudicatory hearing on
Keansburg's grant application under Cunningham and Mathews.
A-2198-23
13
Accordingly, in declining Jersey Shore's request for an adjudicatory
hearing, the DEP properly applied the law and legislative policies to the
evidence in the record and reasonably declined Jersey Shore's request. Under
these circumstances, it is entitled to our deference.
Affirmed.
A-2198-23
14