JOHN DUTCHER VS. PEDRO PEDEIRO(L-4321-15, MIDDLESEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-1088-14T2

IN RE CAFRA PERMIT NO.

1512-08-0020.1CAF080001

RAILROAD AVENUE, LACEY

TOWNSHIP, OCEAN COUNTY,

NEW JERSEY.

____________________________________

Argued September 20, 2016 – Decided March 29, 2017

Before Judges Koblitz, Rothstadt and Sumners.

On appeal from the Department of Environmental

Protection.

Edward Lloyd argued the cause for appellants

The Sierra Club, Lacey Rail Trail

Environmental Committee, Save Barnegat Bay,

and The American Littoral Society (Columbia

Environmental Law Clinic, Morningside Heights

Legal Services, Inc., attorneys; Mr. Lloyd and

Susan J. Kraham, on the briefs).

Timothy P. Malone, Deputy Attorney General,

argued the cause for respondent New Jersey

Department of Environmental Protection

(Christopher S. Porrino, Attorney General,

attorney; Melissa H. Raksa, Assistant Attorney

General, of counsel; Mr. Malone, on the

brief).

Jared J. Monaco argued the cause for

respondent Township of Lacey (Gilmore &

Monahan, P.A., attorneys; Mr. Monaco, of

counsel and on the brief; Michael S. Nagurka,

on the brief).

PER CURIAM

Respondent, the New Jersey Department of Environmental

Protection (DEP), issued a Coastal Area Facility Review Act

(CAFRA), N.J.S.A. 13:19-1 to -21, permit to respondent Township

of Lacey (Lacey) after denying two prior applications for the same

permit. Lacey needed the permit for construction of a roadway and

an adjacent bike and pedestrian path on an abandoned railroad

right of way (ROW). The proposed roadway is intended to help

alleviate traffic on Route 9 and the bike/pedestrian path is

intended to be incorporated into an existing Ocean County

recreational trail that traverses several towns.

Appellants, Lacey Rail Trail Environmental Committee (LRTEC),

The Sierra Club, Save Barnegat Bay, and the American Littoral

Society, argue that the DEP's decision to issue the permit

constitutes an unexplained summary reversal of the DEP's earlier

denials, a failure to recognize the subject property as public

open space, and that the proposed project does not comply with

CAFRA and related regulations. They also contend that in reaching

its decision, the DEP engaged in impermissible rulemaking.

Moreover, they argue that the DEP's findings were unsupported by

the evidence. We disagree and affirm.

2 A-1088-14T2

The DEP issued the permit to Lacey, "authoriz[ing] the

construction of a new 1.9 mile bypass road . . . within the former

Barnegat Branch Railroad [ROW]." The proposal for the new road,

designated as Railroad Avenue, included two vehicle lanes, with

an additional right-turn lane at one intersection, and a pedestrian

and bike path, separated from the roadway by a two-foot landscaped

buffer. It is considered a bypass road because it connects Lacey

Road to South Street and runs parallel to State Highway Route 9,

for the purpose of "alleviat[ing] traffic congestion" on Route 9

"by providing an alternate route for local traffic."

The DEP's approval included a condition that no new curb cuts

shall be permitted, so that there would be no additional

development along the roadway. It also recognized that limited

clearing of vegetation would be necessary, but it required re-

vegetation of portions of the area and installation of vegetation

buffers as additional conditions.

The DEP's decision to issue the permit for Railroad Avenue's

construction was reached after many years of consideration. The

approved project represented a change from earlier proposals made

in 2006 and 2009 in that it reduced the length of the roadway and

excluded certain areas as suggested by the DEP.

The creation of the bypass road represents a substantial

change from the ROW's historical use by the public. The area was

3 A-1088-14T2

originally part of an approximately fifteen-mile railroad right-

of-way in Ocean County, known as the Barnegat Branch Railroad ROW

owned by the Central Railroad of New Jersey. The railroad

abandoned the ROW in 1973 and since then the railroad ties and

tracks located within the ROW were removed. The ROW has been used

by the public as a walking, jogging, and bike trail.

Lacey acquired a 4.8 miles long and fifty feet wide portion

of the ROW through a 1993 tax foreclosure action. It did not

dedicate the area as open public space, but instead intended to

construct the roadway to help alleviate congestion on Route 9.

Other than keeping the ROW's intersection with other roadways

clear for traffic safety reasons, Lacey did not maintain the

portion of the ROW it acquired by mowing, clearing, or otherwise

improving the property.

In May 2004, Lacey granted Ocean County a twelve-foot-wide

easement along the western edge of the ROW for construction of a

bike path. The following month, the County passed an ordinance

authorizing "the design, permitting, and construction of a

recreational [15.6 mile] trail project" through five

municipalities "to be known as the Barnegat Branch Trail." The

county's plan for the portion located in Lacey was limited to a

seven-foot-wide trail throughout the entirety of the fifty-foot-

wide area owned by Lacey.

4 A-1088-14T2

Beginning in 2005, Lacey sought approval from the DEP to

develop a portion of the ROW as a roadway. In March, the DEP

issued Lacey a permit authorizing the construction of a 1700-foot

(.32-mile) portion of Railroad Avenue in connection with the

anticipated construction of a nearby senior housing project. In

accordance with this permit, a 950-foot portion of Railroad Avenue

was constructed between South Street and Laurel Boulevard before

the permit expired. In April 2006, the DEP denied another

application by Lacey for a permit to construct a .82-mile portion

of Railroad Avenue between Lacey Road and Musket Road/First Street.

The DEP denied the permit application after finding the proposed

construction failed to comply with certain Coastal Zone Management

Rules (CZM Rules) – including those relating to public open space,

N.J.A.C. 7:7E-3.40; location of linear development, N.J.A.C. 7:7E-

6.1; basic location, N.J.A.C. 7:7E-6.2; secondary impacts,

N.J.A.C. 7:7E-6.3; and buffers and compatibility of uses, N.J.A.C.

7:7E-8.13.1 The agency found the proposal also failed to satisfy

three of the criteria set forth in CAFRA Section 10, N.J.S.A.

13:19-10 – specifically, subsections (e), (f), and (g) – though

it found Lacey satisfied the remaining Section 10 criteria.

1

Each of the regulations relied upon by the DEP in response to

the relevant permit applications were recodified, without

significant amendment, effective July 6, 2015. 47 N.J.R. 1392(a).

5 A-1088-14T2

Lacey applied for the CAFRA permit at issue and for a

Freshwater Wetlands Transition Area Waiver in September 2008.

The application sought permission to construct a 2.21-mile road

"within [the] former Barnegat Branch railroad [ROW]" that would

connect Route 9 to Lacey Road. The DEP accepted comments for a

thirty-day period. Those opposed to the proposal argued that the

ROW "should become a linear greenway for pedestrian and bicycle

access linking adjacent Townships." Those in favor argued the

proposed roadway would alleviate traffic on the parallel stretch

of Route 9, "support better response times for emergency

responders, provide an alternative evacuation route in an

emergency, and increase safe access to a local school and church."

The DEP denied the application without prejudice in March

2009, after finding the proposed construction failed to comply

with several CZM Rules, including those pertaining to public open

space, N.J.A.C. 7:7E-3.40; location of linear development,

N.J.A.C. 7:7E-6.1; basic location, N.J.A.C. 7:7E-6.2; secondary

impacts, N.J.A.C. 7:7E-6.3; and buffers and compatibility of uses,

N.J.A.C. 7:7E-8.13. However, the DEP found the proposal satisfied

the criteria set forth in N.J.S.A. 13:19-10.

Lacey appealed the denial of the permit, requesting an

adjudicatory hearing. The matter was referred to the Office of

Administrative Law. Prior to a hearing, Lacey and the DEP entered

6 A-1088-14T2

into settlement discussions that resulted in Lacey submitting

revised plans and related information for the project. The

additional information included revised traffic studies and

related proposals. Based on those revised plans, Lacey and the

DEP executed a stipulation of settlement (Stipulation) on August

3, 2010, and Lacey withdrew its hearing request without prejudice.

The DEP published notice of its intent to issue the permit

in its August 18, 2010 bulletin and accepted public comments until

November 8, 2010. By the end of the comment period, the agency

had received over 600 comments, which "generally addressed

concerns with the need for the project, stormwater impacts,

potential impacts to wetlands, category one waters, special water

resource protection areas, public open space, and the condemnation

of a single family home." The comment submitted by the LRTEC

argued the DEP was required to deny the permit because the

deficiencies found in the earlier application had not been

remedied.2

In its January 11, 2012 bulletin, the DEP published notice

of its intent "to issue [the] CAFRA permit with a hardship

exception for a Special Water Resources Protection Area (SWRPA)."

During the public comment period, the DEP received approximately

2

On March 30, 2011, Lacey and the DEP executed an addendum to

the Stipulation.

7 A-1088-14T2

128 comments, which largely raised the same concerns raised in

response to the DEP's initial notice of intent to issue the permit.

After concerns were raised that the project would have a

negative impact on the freshwater wetlands in the Oak Bluff Avenue

portion of the ROW, the DEP suggested Lacey "further consider and

more closely evaluate" an alternative that "would relocate the

northern terminus of the project" to alleviate the concern. In

response to the DEP's suggestion, Lacey submitted a revised plan

that modified the proposed roadway to avoid the Oak Bluff Avenue

area, thereby reducing its length to 1.9 miles. The DEP published

notice of its intent to issue the CAFRA permit in its July 24,

2013 bulletin, explaining the relation to the earlier Stipulation

and the revisions made to the plans and accepted public comments.

On October 16, 2014, the DEP issued Lacey the challenged

permit and a fifty-five page Final Summary Report explaining its

reasons for its action. In its Summary Report, the DEP analyzed

the project's compliance with the relevant CZM Rules and the CAFRA

Section 10 criteria, and found it fully complied with all rules

and requirements provided Lacey complied with the special

conditions imposed. Moreover, the DEP explained that the basis

for its reconsideration of the earlier applications was the receipt

8 A-1088-14T2

of additional information.3 Notice of the permit's issuance was

published in the DEP's November 5, 2014 bulletin. This appeal

followed.

We begin by acknowledging that our "role in reviewing an

administrative agency's final decision is limited." Univ. Cottage

Club of Princeton N.J. Corp. v. N.J. Dep't of Envtl. Prot., 191

N.J. 38, 48 (2007) (citing In re Taylor, 158 N.J. 644, 656 (1999)).

We will "reverse [an agency's final decision] only if [we]

'conclude[] that [its] decision . . . is arbitrary, capricious,

or unreasonable, or is not supported by substantial credible

evidence in the record as a whole.'" In re Adoption of Amendments

to Water Quality Mgmt. Plans, 435 N.J. Super. 571, 582 (App. Div.)

(alteration in original) (quoting J.D. v. N.J. Div. of

Developmental Disabilities, 329 N.J. Super. 516, 521 (App. Div.

2000)), certif. denied, 219 N.J. 627 (2014). An agency's findings

of fact "are considered binding on appeal when supported by

adequate, substantial and credible evidence." Taylor, supra, 158

N.J. at 656 (quoting Rova Farms Resort, Inc. v. Inv'rs Corp., 65

N.J. 474, 484 (1974)). "The burden of demonstrating that the

3

These documents included a draft of Lacey's 1998 addendum to

its Master Plan and a 2004 report relating to the reexamination

of its master plan. These documents indicate that Lacey did not

intend to keep the property in its current condition, but rather

called for the development of the roadway.

9 A-1088-14T2

agency's action was arbitrary, capricious or unreasonable rests

upon the [party] challenging the administrative action." In re

Adoption of Amendments to Water Quality Mgmt. Plans, supra, 435

N.J. Super. at 582 (alteration in original) (quoting In re Arenas,

385 N.J. Super. 440, 443-44 (App. Div.), certif. denied, 188 N.J.

219 (2006)). We accord deference to a final agency action, and

will not substitute our judgment for the expertise of an agency

"so long as that action is statutorily authorized and not otherwise

defective because arbitrary or unreasonable [or not supported by

the record]." In re Authorization for Freshwater Wetlands Gen.

Permits, 372 N.J. Super. 578, 593 (App. Div. 2004) (alteration in

original) (quoting In re Distrib. of Liquid Assets, 168 N.J. 1,

10 (2001)).

Our "substantial deference [also extends] to an agency's

interpretation and application of its own regulations,

particularly on technical matters within the agency's special

expertise." Pinelands Pres. All. v. N.J. Dep't of Envtl. Prot.,

436 N.J. Super. 510, 524 (App. Div.), certif. denied, 220 N.J. 41

(2014). However, we are "in no way bound by the agency's

interpretation of a statute or its determination of a strictly

legal issue." US Bank, N.A. v. Hough, 210 N.J. 187, 200 (2012)

(quoting Univ. Cottage Club of Princeton N.J. Corp., supra, 191

N.J. at 48). "When 'the issue involves the interpretation of

10 A-1088-14T2

statutes and regulations, it is a purely legal issue, which [is]

consider[ed] de novo.'" Pinelands Pres. All., supra, 436 N.J.

Super. at 524-25 (quoting Klawitter v. City of Trenton, 395 N.J.

Super. 302, 318 (App. Div. 2007)).

Applying these standards, we turn first to appellants'

contention that the DEP "erred as a matter of law" by failing to

make specific findings of fact to support its conclusion that the

proposed project complied with N.J.S.A. 13:19-10(e) and (f).4

They argue the DEP, instead, "summarily recite[d] the statutory

language of CAFRA, which does not amount to a finding of fact" and

that "[t]his [c]ourt must reject the permit on this basis alone."

Respondents argue that the Summary Report contains significant

4

N.J.S.A. 13:19-10 provides, in pertinent part:

A permit may be issued pursuant to this act

only upon a finding that the proposed

development:

. . . .

e. Would cause minimal feasible

interference with the natural

functioning of plant, animal, fish, and

human life processes at the site and

within the surrounding region.

f. Is located or constructed so as to

neither endanger human life or property

nor otherwise impair the public health,

safety, and welfare.

11 A-1088-14T2

discussion of the facts underlying its findings with respect to

N.J.S.A. 13:19-10(e) and (f), and that appellants improperly

consider the agency's statement of its findings "in a vacuum,

ignoring the preceding detailed and extensive Summary Report that

provides the context for these findings."

When deciding whether to issue a CAFRA permit pursuant to

N.J.S.A. 13:19-10, the DEP is required to consider whether the

applicant satisfies the seven considerations listed in the

statute. See N.J.S.A. 13:19-10 (a) – (g).

We conclude from our review that the DEP satisfied its

obligation to "make findings under the standards in N.J.S.A. 13:19-

10." In re Protest of Coastal Permit Program Rules, 354 N.J.

Super. 293, 332 (App. Div. 2002). With respect to N.J.S.A. 13:19-

10(e), the DEP stated in its Summary Report that it found that

"[d]evelopment of the project as proposed would not interfere with

the natural functioning of plant, animal, fish and human life

processes." As to N.J.S.A. 13:19-10(f), the DEP found: "The

project would not endanger human life or property. The [DEP] has

determined that the project promotes public health, safety and

welfare by providing a safe alternative for local travel trips."

In reaching those conclusions, the DEP addressed issues regarding

"[e]ndangered or threatened wildlife or plant species habitats"

and issues of "public health, safety and welfare" in the Summary

12 A-1088-14T2

Report. For example, the DEP found no evidence of any potential

impact to threatened or endangered wildlife or plant species. The

agency investigated claims of the project's potential for

interfering with barred owl habitats and concluded there was no

danger, nor did the area contain any marine fisheries, endangered

or threatened species habitats or unique wildlife habitat. After

considering the traffic studies and related information, the DEP

found that the roadway would improve the quality of life for the

residents by relieving traffic congestion. It made specific

findings concerning the benefit of the project to public health

and safety, noting the roadway would provide a safe alternative

for travel along Route 9, while still allowing the benefits of a

walking and bike trail as part of the county's Barnegat Branch

Trail.

Appellants next argue the DEP's issuance of the permit must

be reversed because, in finding the proposal complied with the

rules regarding public open space, N.J.A.C. 7:7E-3.40, and

secondary impacts, N.J.A.C. 7:7E-6.3, the DEP "applied previously

unannounced administrative standards" for determining whether a

property would be considered open space. They contend the new

standards were the product of rulemaking, requiring notice and

comment prior to their application, because they were "not clearly

inferable from the applicable regulatory provision[s] or enabling

13 A-1088-14T2

legislation," did not "reflect a policy previously expressed by

the agency," and lacked any "indication that [they would] not

apply generally and uniformly to similarly situated persons

seeking CAFRA permits in the future." Respondents argue that

appellants' contention fails to appreciate the distinction between

the agency considering a variety of factors to make its finding

and setting new standards for information it will consider in

making a determination.

"The [Administrative Procedure Act (APA)] defines an

administrative rule as an agency's 'statement of general

applicability and continuing effect that implements or interprets

law or policy, or describes the organization, procedure or practice

requirements' of the agency." In re Authorization for Freshwater

Wetlands Statewide Gen. Permit 6, 433 N.J. Super. 385, 413 (App.

Div. 2013) (quoting N.J.S.A. 52:14B-2(e)). "Prior to adopting or

amending any rule, an administrative agency must give notice of

its intended action and afford interested parties a 'reasonable

opportunity to submit data, views or arguments, orally or in

writing.'" Univ. Cottage Club of Princeton N.J. Corp., supra, 191

N.J. at 53 (citation omitted) (quoting N.J.S.A. 52:14B-4(a)(3)).

In evaluating whether an agency's determination announces a

rule triggering the notice requirement, courts consider whether

the determination:

14 A-1088-14T2

(1) is intended to have wide coverage

encompassing a large segment of the regulated

or general public, rather than an individual

or a narrow select group; (2) is intended to

be applied generally and uniformly to all

similarly situated persons; (3) is designed

to operate only in future cases, that is,

prospectively; (4) prescribes a legal standard

or directive that is not otherwise expressly

provided by or clearly and obviously inferable

from the enabling statutory authorization; (5)

reflects an administrative policy that (i) was

not previously expressed in any official and

explicit agency determination, adjudication

or rule, or (ii) constitutes a material and

significant change from a clear, past agency

position on the identical subject matter; and

(6) reflects a decision on administrative

regulatory policy in the nature of the

interpretation of law or general policy.

[Metromedia, Inc. v. Dir., Div. of Taxation,

97 N.J. 313, 331-32 (1984).]

"The pertinent evaluation focuses on the importance and weight of

each factor, and is not based on a quantitative compilation of the

number of factors which weigh for or against labeling the agency

determination as a rule." In re Provision of Basic Generation

Serv., 205 N.J. 339, 350 (2011).

With respect to the public open space rule, N.J.A.C. 7:7E-

3.40,5 appellants contend the DEP "announce[d] four new standards

5

The rule in effect at the time the permit was issued

defined public open space as:

land areas owned or maintained by State,

Federal, county and municipal agencies or

private groups . . . and used for or dedicated

15 A-1088-14T2

for [determining] what constitutes 'public open space:'" (1) "the

'purpose' for which the land is acquired"; (2) whether the land

is "designated as 'a Suburban Planning Area'" rather than "'a park

of natural area' on the State Development and Redevelopment Plan

Map"; (3) whether the land is "'list[ed] on the Protected Open

Spaces System Map' or 'in the County Recreation and Open Space

Inventory'"; and, (4) whether the land is "'identified as an

acquired property on the Ocean County Natural Lands Trust website'"

or was purchased with funds from the Ocean County Natural Lands

Trust (the County Lands Trust).

The DEP argues, with respect to "standards" two and three,

that the land's status in the referenced documents was not a new

standard, as the documents were merely considered "as factors

which supported Lacey's position that the ROW was not intended to

be public open space." As to the fourth "standard," the DEP argues

that "whether land is held by the New Jersey Natural Lands Trust

is expressly a consideration in N.J.A.C. 7:7E-3.40(a)" and that

to conservation of natural resources, public

recreation, visual or physical public access

or, wildlife protection or management. Public

open space also includes, but is not limited

to . . . lands held by the New Jersey Natural

Lands Trust . . . and designated Natural Areas

within DEP-owned and managed lands.

[N.J.A.C. 7:7E-3.40(a) now codified at

N.J.A.C. 7:7-9.38.]

16 A-1088-14T2

it "addressed whether Natural Lands Trust funds were used to

acquire the ROW or easement in response to public comments

regarding the use of these funds."

Lacey argues the first "standard" was not a new standard

because "a plain reading of the [public open space rule] indicates

that purpose [for which the land is acquired] is already an

enumerated standard." As to the remaining "standards," Lacey

argues they were simply some of many factors considered in finding

that the land was not public open space, and therefore not newly

announced standards.

We do not discern from the record that the DEP engaged in

rulemaking when it determined the subject property was not public

open space. In its Summary Report, the DEP relied on its

regulation for the definition and concluded the land was not public

open space after finding it was purchased by Lacey "for the purpose

of constructing the road project" and "was not purchased or

dedicated for conservation, public recreation, public access, or

wildlife protection." The DEP noted that "the site [wa]s not

designated as a park or natural area" on the State Development and

Redevelopment Plan Map, rather as a Suburban Planning Area.

Moreover, the site was not listed as a protected open space on the

county's Protected Open Spaces System Map, "not identified as open

space in the County Recreation and Open Space Inventory," not

17 A-1088-14T2

identified as having been acquired by the County Lands Trust, and

was not purchased with any money from that trust. It also stated

that the County "never envisioned a [fifty-foot] wide multi-use

trail in Lacey," noting that the proposal was consistent with the

County's 2007 Barnegat Branch Trail Conceptual Plan, which

envisioned a seven-foot-wide trail for pedestrians and cyclists

separated by a buffer from a thirty-eight-foot-wide roadway.

We view the appellants' argument that these findings amounted

to the DEP imposing new standards in its determination of whether

the ROW constituted public open space to be without merit. The

first three considerations complained of were relevant

considerations to the determination of whether the ROW was public

open space, as they speak to whether the land was "used for or

dedicated to conservation of natural resources, public recreation,

visual or physical public access or, wildlife protection or

management." N.J.A.C. 7:7E-3.40(a). As for the fourth

consideration, the definition of public open space clearly

contemplates the land's relationship to the land trusts, as it

includes in its definition of public open space "lands held by the

New Jersey Natural Lands Trust." Ibid.

The DEP's consideration of these four factors did not qualify

as rulemaking. See Metromedia, supra, 97 N.J. at 331-32. There

is no indication they are "intended to have wide coverage[,]

18 A-1088-14T2

. . . be applied generally and uniformly," or apply only

prospectively. Id. at 331. To the extent they could be considered

a legal standard, they are "clearly and obviously inferable" from

the public open space rule, see N.J.A.C. 7:7E-3.40(a). To the

extent they could be considered as representing an administrative

policy, there is nothing indicating they have never been considered

before or are a "material and significant change from a clear,

past [DEP] position" on what constitutes public open space.

Metromedia, supra, 97 N.J. at 331. Finally, there is nothing to

suggest these considerations "reflect[] a decision on

administrative regulatory policy in the nature of the

interpretation of law or general policy." Id. at 331-32.

We turn next to appellants argument that, in finding the

proposal satisfied the secondary impacts rule, N.J.A.C. 7:7E-6.3,6

6

The rule regarding secondary impacts defines them as "the

effects of additional development likely to be constructed as a

result of the approval of a particular proposal." N.J.A.C. 7:7E-

6.3(a). The regulation also states:

Secondary impact analysis must include an

analysis of the likely geographic extent of

induced development, its relationship to the

State Development and Redevelopment Plan, an

assessment of likely induced point and non-

point air and water quality impacts, and

evaluation of the induced development in terms

of all application Coastal Zone Management

rules.

[N.J.A.C. 7:7E-6.3(b)(2) now codified at

N.J.A.C. 7:7-14.3.]

19 A-1088-14T2

the DEP "announce[d] a new administrative standard": whether the

land is "inclu[ded] in the State Development and Redevelopment

Plan as a Suburban Planning Area." Respondents argue the land's

designation as a Suburban Planning area was not a new standard,

but rather a factor considered in determining what secondary

impacts the proposed roadway would have.

We again conclude the DEP did not engage in rulemaking in

reaching its decision to issue the CAFRA permit to Lacey. In

finding that the proposal complied with the secondary impacts

rule, the DEP considered that the proposed road "traverses an area

of Lacey Township that consists primarily of residential and

commercial development," that "the site is designated a Suburban

Planning Area according to the State Development and Redevelopment

Plan," and that, according to information provided by Lacey, the

surrounding area was already largely developed, such that "the

proposed roadway will not induce further development." The DEP

also considered that conditions imposed on the permit would prevent

construction of "additional future points of ingress/egress to the

new roadway" and that the proposal's inclusion of a trail for

pedestrians and cyclists made the project "consistent with" the

County's Barnegat Branch Trail Conceptual Plan.

The DEP's consideration of the land's "inclusion in the State

Development and Redevelopment Plan as a Suburban Planning Area"

20 A-1088-14T2

did not impose a new standard, thereby constituting rulemaking.

First, the text of the secondary impacts rule requires the DEP to

consider the property's "relationship to the State Development and

Redevelopment Plan," N.J.A.C. 7:7E-6.3(b)(2), so it cannot be said

that considering the site's designation as a Suburban Planning

Area under that plan was a newly announced standard. Moreover,

there is nothing to suggest the site's designation was

determinative, or even the most significant factor in the DEP's

finding, and the DEP expressly considered several other factors.

Even if the DEP's consideration of the site's designation satisfied

the first three or final Metromedia factors, the fact that the

text of the secondary impacts rule required the DEP to consider

its designation prevents the DEP's consideration from meeting the

fourth and fifth criteria, and greatly outweighs the remaining

factors. See Metromedia, supra, 97 N.J. at 331-32; In re Provision

of Basic Generation Serv., supra, 205 N.J. at 350. The DEP imposed

no new standards for the public open space and secondary impacts

rules, and thus did not engage in improper rulemaking.

Appellants next contend the DEP's decision to issue the permit

was arbitrary and capricious, as it was an "[u]nexplained, summary

reversal[]" of its 2006 and 2009 decisions to deny a similar permit

and the findings underlying those denials, and was

"unsubstantiated by and contrary to the evidence." They claim the

21 A-1088-14T2

DEP failed to explain its bases for finding that the requirements

it had previously found unsatisfied were fulfilled by the new

proposal. Appellants specifically cite to the DEP's different

determinations as to N.J.S.A. 13:19-10(e), (f), and (g), and the

rules regarding public open space, N.J.A.C. 7:7E-3.40; location

of linear development, N.J.A.C. 7:7E-6.1; basic location, N.J.A.C.

7:7E-6.2; secondary impacts, N.J.A.C. 7:7E-6.3; and buffers and

compatibility of uses, N.J.A.C. 7:7E-8.13. We disagree.

We are satisfied the DEP properly exercised its right to

consider and grant the revised 2009 application because it

explained its reasons for its divergent opinions. "In the absence

of some legislative restriction, administrative agencies have the

inherent power to reopen or to modify and to rehear orders that

have been entered." In re Van Orden, 383 N.J. Super. 410, 419

(App. Div. 2006) (quoting Burlington Cty. Evergreen Park Mental

Hosp. v. Cooper, 56 N.J. 579, 600 (1970)). However, in doing so,

an agency is not "free to disregard completely issues that were

fully and fairly resolved" in its earlier decision. Trap Rock

Indus., Inc. v. Sagner, 133 N.J. Super. 99, 110 (App. Div. 1975),

aff'd by an equally-divided court, 69 N.J. 599 (1976). "The power

to reconsider must be exercised reasonably, with sound discretion

reflecting due diligence, and for good and sufficient cause."

Ibid. Thus, in determining whether to reconsider a prior

22 A-1088-14T2

determination, an agency should "balance[e] . . . such factors as

new developments or even new evidence of old developments, the

advantages of repose, party reliance, the thoroughness of the

earlier decision and the showing of illegality, fraud, mistake and

the like." Ibid.

Here, although the DEP's 2014 decision was effectively a

reconsideration of its 2006 and 2009 denials, the approved

application was a "new application," N.J.S.A. 13:19-15; N.J.A.C.

7:7-4.9(b) (now codified at N.J.A.C. 7:7-26.9), that the DEP

granted based upon its recognition of its own error, new

information and revised plans. Nevertheless, because the DEP

reached different conclusions in its findings as to Lacey's

compliance with particular requirements and in its ultimate

decision on the application, the DEP was required to express its

reasons for the divergence, though it need not have been explained

in those terms. See Pinelands Pres. All., supra, 436 N.J. Super.

at 532-33.

We conclude that the DEP satisfied its obligation to explain

its reasons for granting Lacey the CAFRA permit in 2014 when it

had previously denied similar applications. Contrary to

appellants' argument, the DEP was not required to expressly rebut

its previous findings, but had to consider the most recent

application anew and provide an adequate explanation for its

23 A-1088-14T2

findings with respect to the specific application. Nevertheless,

we address the various contentions as to each of the DEP's

considerations serially and compare them to the DEP's earlier

determinations.

In 2006, the DEP found the requirements of Section 10(e) were

not satisfied because the project "would effectively block the

County['s] . . . ability to convert the [ROW] to a passive/active

car free recreational use, and would also result in loss of the

values and functions the abandoned rail line has started to

provide, such as a vegetative buffer and wildlife habitat." In

2014, the DEP found the revised project "would not interfere with

the natural functioning of plant, animal, fish and human life

processes." The agency also determined that the project satisfied

N.J.S.A. 13:19-10(e) because it would cause only "minimal feasible

interference." Although the agency discussed its findings while

addressing the rule on location of linear development, N.J.A.C.

7:7E-6.1 and the supporting evidence, its considerations applied

equally to its determination of Lacey's compliance with N.J.S.A.

13:19-10(e). Although the project would require the clearing of

vegetation along the ROW "[t]he project [was] designed to minimize

the vegetation disturbance to maximize the buffering between the

proposed road and the existing residential developments." It also

found that the project would have "minimal feasible interference"

24 A-1088-14T2

with endangered or threatened wildlife and with SWRPA vegetation.

It explained that these conditions were different from the prior

application due to revisions to the earlier design that resulted

in the elimination of a "segment of the road" and a change to its

terminus.

Addressing N.J.S.A. 13:19-10(f), in 2006, the DEP found the

project would not promote the public welfare, as it was "in close

proximity to existing homes[,] . . . would not offer a car free

pedestrian transportation link between the [five municipalities],

and . . . serv[ed] only to promote higher vehicle miles as opposed

to promoting recreational uses such as biking and walking." It

also noted that the ROW had "developed into a naturally vegetated

buffer to houses along the [ROW], a linear wildlife corridor and

a car free public open space providing a human powered linkage

amongst five municipalities." In 2014, the agency found it used

an improper definition of public space, and applying the correct

definitions, found Lacey's revised proposal "promotes public

health, safety and welfare by providing a safe alternative for

local travel trips," and "would not endanger human life or

property." Relying on revisions to the plans and new traffic

studies, it found that the project would "provid[e] a safe

alternative for local travel trips," and by its earlier findings

25 A-1088-14T2

that the project would allow for "enhanced emergency access" in

the area and would "not impact private or public property."

Turning to appellants' argument about the DEP's decision

regarding N.J.S.A. 13:19-10(g),7 they contend that the DEP failed

to explain its basis for finding the proposal complied with the

provision after determining earlier that it did not and that the

DEP's finding of compliance was the result of its reliance upon

its incorrect determination that the ROW did not constitute public

open space. We disagree.

In 2006, the DEP found the project did not satisfy the

statutory criteria because it "would greatly reduce" the ROW's

function as a "vegetative buffer area between the existing

residential properties on the west and the commercial properties

on the east." In 2014, the DEP found "[t]he project will not

impact unique or irreplaceable land types, historical or

archeological areas, or existing public scenic attributes." In

so finding, it cited its determination that the site was not public

open space, did not contain any historic properties, and the New

Jersey Historic Preservation Office's view that "the project will

have no effect on historic properties and . . . that there is no

7

N.J.S.A. 13:19-10(g) states that a permit be issued only if

the DEP finds the proposal "[w]ould result in minimal practicable

degradation of unique or irreplaceable land types, historical or

archeological areas, and existing public scenic attributes at the

site and within the surrounding region." N.J.S.A. 13:19-10(g).

26 A-1088-14T2

need for further culture resource consideration within the project

area." The DEP's finding that the project satisfied N.J.S.A.

13:19-10(g) was also supported by its earlier finding that the

project would not cause "permanent or long-term loss of any unique

or irreplaceable areas" and the evidence supporting that finding

and by the information cited regarding the absence of any

historical areas in the project area.

Next, appellants argue that the agency failed to adequately

explain its current finding that the proposal complied with the

public open space rule, N.J.A.C. 7:7E-3.40,8 when it found the

8

The public open space rule in effect at the time of the

permit decisions provided, in relevant part:

(a) Public open space constitutes land areas

owned or maintained by State, Federal, county

and municipal agencies or private groups . .

. and used for or dedicated to conservation

of natural resources, public recreation,

visual or physical public access or, wildlife

protection or management. Public open space

also includes, but is not limited to . . .

lands held by the New Jersey Natural Lands

Trust . . . and designated Natural Areas

within DEP-owned and managed lands.

. . . .

(c) Development that adversely affects

existing public open space is discouraged.

(d) Development within existing public open

space is conditionally acceptable, provided

that the development is consistent with the

character and purpose of public open space,

27 A-1088-14T2

rule was not satisfied in 2006 and 2009. They further argue there

is no support for the DEP's claim that Lacey purchased the ROW for

the purpose of constructing a roadway. They contend that the

area's "actual use" as recreational space for decades established

the public use required by the rule. Moreover, appellants argue

that the DEP's determination that the ROW was not public open

space was not supported by the ROW's designation as a Suburban

Planning Area, exclusion from the Protected Open Spaces System Map

and the County Recreation and Open Space Inventory, or its

independence from the County Lands Trust.

The DEP found in 2006 and 2009 that the ROW "ha[d] been

serving as public open space since its abandonment in 1973 and

[that use] was further enhanced by the removal of tracks and

railroad ties," and that "[s]ite inspections . . . revealed use

by local citizens as evidenced by tracks left by walkers/joggers

and bike tires." It further noted that the County had

"[recognized] the value of the [ROW] as public open space by

passing [an ordinance] for development of a multi[-]use trail

[fourteen] miles long," serving the five municipalities through

which the ROW passed, and that using the full width of the ROW for

as described by the park master plan when such

a plan exists.

[N.J.A.C. 7:7E-3.40 now codified at N.J.A.C.

7:7-9.38.]

28 A-1088-14T2

the trail "has the potential of providing a safe car free

environment to thousands of various users." While the DEP

acknowledged that the proposed road would "divert some locally

generated traffic away from Route 9," it found those benefits

would not be "significant enough to improve [the] existing poor

conditions on this section of Route 9." It concluded that, because

it was "not able to find that the construction of the project as

proposed [would] not result in an adverse impact to existing public

open space," Lacey failed to demonstrate compliance with the public

open space rule.

In granting the permit in 2014, the DEP concluded that Lacey

had demonstrated compliance with the rule, finding that the ROW

did not constitute public open space and that the proposed road

would "not adversely affect existing public open space" and would

in fact expand public open space in Lacey. In so concluding, the

DEP began by acknowledging that its initial decision on the

application "found that the proposed roadway would result in the

loss of open space," but that it was "reconsider[ing] its prior

finding" based upon information that "was not provided and/or

considered at the time of the original permit review." It

explained that the land was purchased by Lacey "for the purpose

of constructing the road project" and "was not purchased or

dedicated for conservation, public recreation, public access, or

29 A-1088-14T2

wildlife protection," and concluded the land "[t]herefore . . .

is not considered public open space." The DEP further noted that

the ROW was "not designated as a park or natural area" on the

State Development and Redevelopment Plan Map, rather as a Suburban

Planning Area, was not listed as a protected open space on the

county's Protected Open Spaces System Map, was "not identified as

open space in the County Recreation and Open Space Inventory," was

not identified as having been acquired by the County Lands Trust,

and was not purchased with any money from the trust. The agency

further stated that the County "never envisioned a 50-foot wide

multi-use trail in Lacey," noting that the proposal was consistent

with the County's 2007 Barnegat Branch Trail Conceptual Plan,

which envisioned a seven-foot-wide trail for pedestrians and

cyclists separated by a buffer from a thirty-eight-foot-wide

roadway.

Significantly, there was no evidence that Lacey took any

steps to support or encourage the public's use of the ROW as a

pedestrian and bike trail beyond the alleged removal of railroad

tracks and ties9 – for example, by pruning trees, removing debris,

clearing vegetation, or otherwise maintaining the ROW. Compare

9

It is not clear whether Lacey undertook the removal. The

removal would be necessary in any event for the construction of a

roadway and the adjacent walking and bike paths.

30 A-1088-14T2

Cedar Cove v. Stanzione, 122 N.J. 202, 216-18 (1991) (finding

appropriate application of the Green Acres Land Acquisition and

Recreation Opportunities Act, N.J.S.A. 13:8A-35 to -55, where a

municipality encouraged the public's use of property for

recreational purposes and maintained property for that purpose).

The DEP recognized, however, the public's unofficial use of the

property for those purposes and considered Lacey's plan for the

construction of a "pedestrian/bike trail" as one of the intended

uses, to be consistent with the use made of the ROW by the public.

Under these circumstances, the DEP correctly determined that the

entire property was not "dedicated to" public use, or "used for"

those purposes by the public with Lacey's facilitation or

participation. What use the public made of the land could continue

after the project.

Appellants also argue that the DEP failed to adequately

explain why it found the proposal complied with the rule on

location of linear development, N.J.A.C. 7:7E-6.1,10 when it found

10

A "linear development" is "a development with the basic

function of connecting two points, such as a road, drive, public

walkway, [or] railroad." N.J.A.C. 7:7E-1.8 (now codified at

N.J.A.C. 7:7-1.5). The rule on location of linear development in

effect at the time of the permit decisions provides, in relevant

part:

(a) A linear development, as defined at

N.J.A.C. 7:7E-1.8, shall comply with the

specific location rules to determine the most

acceptable route, to the maximum extent

practicable. If part of the proposed

31 A-1088-14T2

the rule was not satisfied in 2006 and 2009. Specifically, they

argue that because many of the proposal's attributes cited by the

DEP in finding the rule was satisfied were not part of the earlier

applications or relied upon in those applications' denials, they

cannot justify the DEP's change in position.

alignment of a linear development is found to

be unacceptable under the specific location

rules, that alignment (perhaps not the least

possible distance) may nonetheless be

acceptable, provided the following conditions

are met:

1. There is no prudent or feasible

alternative alignment which would have

less impact on sensitive areas and marine

fish or fisheries as defined at N.J.A.C.

7:7E-8.2;

2. There will be no permanent or long-

term loss of unique or irreplaceable

areas;

3. Appropriate measures will be used to

mitigate adverse environmental impacts

to the maximum extent feasible, such as

restoration of disturbed vegetation,

habitats, and land and water features;

and

4. The alignment is located on or in

existing transportation corridors and

alignments, to the maximum extent

practicable.

[N.J.A.C. 7:7E-6.1 now codified at N.J.A.C.

7:7-14.1.]

32 A-1088-14T2

In 2006 and 2009, the DEP found that the ROW had been serving

as public open space, and found that the proposed construction

"would effectively block the [County's] ability to convert the

[ROW] to a passive/active car free recreational use and would also

result in loss of the values and functions the abandoned rail line

ha[d] started to provide, such as a vegetative buffer and wildlife

habitat." As "the construction of the project would result in a

permanent loss of a unique and irreplaceable area," the DEP found

Lacey's proposals had failed to demonstrate compliance with this

rule.11

In the 2014 Summary Report, the DEP began by acknowledging

that it was reconsidering its prior findings and concluded that

the proposal was now in compliance with the rule on linear

development. In doing so, it first noted that the revisions

eliminated the Oak Bluff Avenue portion of the road, thereby

"eliminat[ing] any disturbances to wetland transition areas as

well as . . . [one] associated [SWRPA] disturbance." Though

another SWRPA disturbance was "unavoidable," it would "be

compensated for by the restoration of . . . a disturbed SWRPA at

11

While appellants argue the DEP failed to explain why the

proposal would no longer result in the "permanent or long-term

loss of [a] unique or irreplaceable area[,]" that finding was

largely unexplained in the earlier denials and, given that the

proposal provided for a pedestrian/bike trail and did not affect

any "unique wildlife habitat," it is unclear what basis there

would be for finding such a loss.

33 A-1088-14T2

the same location." The DEP found that there was no possible

"alternative alignments" due to existing developments, but that

the proposed construction would "not result in any disturbance to

wetlands or transition areas, or habitat for endangered or

threatened species, or marine fish or fisheries" or to any "unique

wildlife habitat[s]," and therefore would not result in any

"permanent or long-term loss of unique or irreplaceable areas."

After reciting the history of the Barnegat Branch Trail, the DEP

again noted that the roadway would "not preclude the development

of [a] pedestrian/bike trail as envisioned by the Barnegat Branch

Trail Conceptual Plan." Finally, the DEP found that the project

was "designed to minimize the vegetative disturbance to maximize

the buffering between the proposed road and the existing

residential developments" – with "a minimum buffer of [fifteen]

feet" – prohibited the future construction of additional points

of "ingress and egress to the road," and was "located within an

existing transportation corridor."

Appellants also contend that the DEP failed to adequately

explain why it found the proposal complied with the basic location

rule, N.J.A.C. 7:7E-6.2,12 which it found was not satisfied in 2006

12

The basic location rule provides:

(a) A location may be acceptable for

development under N.J.A.C. 7:7E-3, 4, 5, 5A,

5B and 6, but the Department may reject or

34 A-1088-14T2

and 2009. Specifically, they argue the DEP's finding of compliance

is flawed because it failed to address "how approval of the

proposed development is 'reasonably necessary'" to promote public

health, safety, and welfare, the "previous bases for denial," or

why the traffic benefits "outweigh[] the previous public health

and environmental justifications for denial."

The DEP found the rule was not satisfied in 2006 and 2009

because the proposals failed to meet subsections (1) and (3).

Specifically, it found the project did "not promote public welfare

[because it] serv[ed] only to promote higher vehicle miles as

opposed to promoting recreational uses such as biking and walking."

In 2006, the DEP found the project did not "enhance the natural

environment" because the ROW was "a natural area on the mend" and

"[c]onstruction of the proposed road would eliminate most of any

naturally re-established habitat." It provided no reason for its

conditionally approve the proposed

development of the location as reasonably

necessary to:

1. Promote the public health, safety, and

welfare;

2. Protect public and private property,

wildlife and marine fisheries; and

3. Preserve, protect and enhance the

natural environment.

[N.J.A.C. 7:7E-6.2 now codified at N.J.A.C.

7:7-14.2.]

35 A-1088-14T2

2009 finding that the proposal did not enhance the natural

environment.

In finding the rule satisfied in 2014, the DEP again

acknowledged that it was reconsidering its prior finding, based

in part on Lacey's revised plans' elimination of the Oak Bluff

Avenue portion included in the 2009 proposal. It found that the

project would "promote[] public health, safety, and welfare" by

alleviating traffic congestion on Route 9 and providing a "robust

transportation network, which allows for flexibility and enhanced

emergency access." After noting the proposal would "not impact

private or public property" or "impact endangered or threatened

species, wetlands, marine fisheries or special environments," the

DEP found it fully complied with the basic location rule.

Appellants also argue that the DEP failed to adequately

explain why it found the proposal complied with the secondary

impacts rule, N.J.A.C. 7:7E-6.3,13 which it found was not satisfied

13

The secondary impacts rule provides in pertinent part:

(a) Secondary impacts are the effects of

additional development likely to be

constructed as a result of the approval of a

particular proposal. Secondary impacts can

also include traffic increases, increased

recreational and any other offsite impacts

generated by onsite activities which affect

the site and surrounding region.

(b) Coastal development that induces

further development shall demonstrate, to the

36 A-1088-14T2

in 2006 and 2009. They argue the DEP ignored its prior findings

that the roadway would have a significant negative impact on the

County's planned multi-use trail and existing public open space,

and improperly relied on the claim that the Barnegat Branch Trail

was designed with the roadway in mind, as the trail plan predated

the first roadway proposal.

In 2006, the DEP concluded the secondary impacts rule was not

satisfied because Lacey had failed to "demonstrate[] that the

secondary impacts of the development will satisfy the [CZM] rules."

maximum extent possible, that the secondary

impacts of the development will satisfy the

[CZM] rules. The [DEP] may restrict coastal

development from connecting to an approved

infrastructure in order to prevent adverse

impacts to special areas and to protect and

preserve coastal resources.

(1) The level of detail and areas

of emphasis of the secondary impact

analysis are expected to vary depending

upon the type of development. . . .

(2) Secondary impact analysis must

include an analysis of the likely

geographic extent of induced

development, its relationship to the

State Development and Redevelopment

Plan, as assessment of likely induced

point and non-point air and water quality

impacts, and evaluation of the induced

development in terms of all applicable

[CZM] rules.

[N.J.A.C. 7:7E-6.3 now codified at N.J.A.C.

7:7-14.3.]

37 A-1088-14T2

Its conclusion was based on Lacey's failure to provide analyses

of "what intersections would be impacted by" construction of the

road, the capacity of "any receiving roadway," and which areas of

Lacey were expected to experience increased "development pressure"

as a result of the new road. The DEP noted that, while the project

was proposed to help alleviate traffic on Route 9, "[l]ong term

traffic management of Route 9" would still require implementation

of "a Comprehensive Route 9 Corridor Plan." The DEP also relied

upon the "significant secondary impact on Ocean County's plan to

construct a multi-use trail," the lack of support for the project

from the adjacent towns, and the fact that the "construction as

proposed would effectively negate the significant public monies

expended by Ocean County."

The DEP expressed similar concerns in 2009, finding

noncompliance based on the "increased roadway capacity" that would

result from the new road and that capacity's "potential to promote

additional growth areas within the Township." It also once again

relied upon the lack of a comprehensive corridor plan, the impact

on the County's planned multi-use trail, the neighboring towns'

lack of support, and the significant funds already spent by the

County.14

14

It did not, as appellants assert, make any finding that the

construction would have an adverse impact on public open space.

38 A-1088-14T2

In finding that the newest proposal complied with the

secondary impacts rule, the DEP began by noting that it was

reconsidering its prior decisions. It first explained that the

proposed road "traverses an area of [Lacey] that consists primarily

of residential and commercial development," and that "the site is

designated a Suburban Planning Area according to the State

Development and Redevelopment Plan." It then detailed the

composition of the "Secondary Impact Review area," which,

according to information provided by Lacey, "is already 84.57%

develop[ed] with residential and commercial properties" and, "[o]f

the remaining 15.43% of undeveloped properties, [almost all] are

publicly owned lands . . . [that] will not be developed and the

[rest are] undeveloped privately owned land [that] is already

zoned for approvable residential development." In light of this

information, the DEP concluded that "the proposed roadway will not

induce further development." Moreover, it noted, one of the permit

conditions prohibited building "additional curb cuts," thereby

"prohibiting any future points of ingress/egress to the new

roadway." Finally, the DEP found that "the pedestrian/bikeway

component of the Railroad Avenue project is consistent with the

planned Barnegat Branch Trail," noting that "the Ocean County

Planning Department designed the Barnegat Branch Trail with

Railroad Avenue in mind and ha[d] stated on [its] website that the

39 A-1088-14T2

roadway will not preclude the development of a pedestrian/bike

trail as envisioned by the Barnegat Branch Trail Conceptual Plan."

As with the other rules, despite appellants' argument to the

contrary, the DEP was not required to "rebut [its] previous

findings with evidence from the record." Nevertheless, Lacey

supported its application with data demonstrating that the

proposal would not induce further development because the area

surrounding the proposed roadway was already almost eighty-five

percent developed, and the remaining properties were either public

land protected from development or private land for which

development was already authorized. The DEP relied upon this

unrebutted data and its finding that the proposal would not impact

the County's plan for the Barnegat Branch Trail, as it provided

for construction of that trail.

Appellants also argue that the DEP failed to adequately

explain why it found the proposal complied with the buffers and

compatibility of uses rule, N.J.A.C. 7:7E-8.13,15 which it found

15

The buffers and compatibility of uses rule in effect at

the time of the DEP's decisions provided, in relevant part:

(a) Buffers are natural or man-made

areas, structures, or objects that serve to

separate distinct uses or areas.

Compatibility of uses is the ability for uses

to exist together without aesthetic or

functional conflicts.

40 A-1088-14T2

was not satisfied in 2006 and 2009. They argue the DEP's finding

that the fifteen-foot buffer between the roadway and nearby

residences was sufficient ignored its previous findings that the

full fifty-foot width of the ROW was a buffer "worthy of

protection."

(b) Development shall be compatible with

adjacent land uses to the maximum extent

practicable.

(1) Development that is likely to

adversely affect adjacent areas,

particularly Special Areas N.J.A.C.

7:7E-3, or residential or recreation

uses, is prohibited unless the impact is

mitigated by an adequate buffer. The

purpose, width and type of the required

buffer shall vary depending upon the type

and degree of impact and the type of

adjacent area to be affected by the

development, and shall be determined on

a case by case basis.

. . . .

(3) The following apply to buffer

treatment:

(i) All buffer areas shall be

planted with appropriate vegetative

species, either through primary planting

or supplemental planting. This

landscaping shall include use of mixed,

native vegetative species, with

sufficient size and density to create a

solid visual screen within five years

from the date of planting.

[N.J.A.C. 7:7E-8.13 now codified at N.J.A.C.

7:7-16.11.]

41 A-1088-14T2

In 2006 and 2009, the DEP based its conclusion that the rule

was unsatisfied on its finding that the proposals "would greatly

reduce th[e] vegetative buffer" provided by the ROW "between the

existing residential properties on the west and the commercial

properties on the east."

In 2014, the DEP found that the pedestrian and bike trail,

together with the buffers on either side of it, would provide "a

minimum buffer of [fifteen] feet between the proposed road and any

residential property boundary," with an even wider buffer along

the large majority of road. With this buffer in place, the DEP

found the project was "compatible with the existing adjacent land

uses to the maximum extent practicable" and therefore satisfied

the rule on buffers and compatibility of uses.

Notably, the DEP's 2006 decision did not, as appellants

allege, find "that the 2005 road proposal would interfere with"

the planned Barnegat Branch Trail. Moreover, the DEP's earlier

conclusion that the rule was not satisfied was not based upon any

finding that the proposed projects were not "compatible with

adjacent land uses." N.J.A.C. 7:7E-8.13(b). Rather, the earlier

denials found the rule was not satisfied because the proposals

would eliminate the fifty-foot buffer provided by the ROW, findings

which do not address what the rule considers and do not, without

more, support a finding that the rule was unsatisfied. The DEP's

42 A-1088-14T2

conclusion was supported by its finding that the fifteen-foot

buffer rendered the project compatible with adjacent land uses,

as required by the rule.

In conclusion, we are satisfied that, despite the earlier

denials, the DEP's Summary Report provided more than adequate

reasons for issuing Lacey the CAFRA permit and that the agency

properly exercised its authority when it granted the permit.

Affirmed.

43 A-1088-14T2