urrent Coastal Permitting Battles
7:7-6.5 ( d ) 1ii notes that a primary frontal dune means a “ continuous or nearly continuous mound or ridge of sand with relatively steep waterward and landward slopes immediately landward of and adjacent to the beach .” The Appellate Division of the New Jersey Superior Court has interpreted “ relatively steep ” to mean that the “ waterward and landward slopes ... must abruptly incline and decline respectively compared with the rest of the subject property or with the other properties in the area immediately adjacent to the subject property . Siegel v . NJDEP , 395 N . J . Super . 604 , 619-20 ( App . Div . 2007 ).
Here , consultants and engineers for the O ’ Hara project have confirmed that the landward slope of the primary oceanfront dune , characterized by the requisite “ relatively steep slope ,” is east of the dwelling , and does not include the area beneath the deck which is flat . Thus , judicial precedent and DEP ’ s regulations confirm that the subject dune ends waterward of the proposed development .
The DEP ’ s denial also appears to be contrary and inconsistent with its prior findings relating to another property to the south , where the NJDEP issued a jurisdictional determination allowing construction in the same area the O ’ Haras seek to renovate their house . Other dwellings in the area are all similarly built to , or even beyond , the same building line to which the O ’ Haras seek to expand . Thus , DEP ’ s ruling in this matter appears inconsistent with prior permit approvals at properties near the O ’ Haras and the current regulations and judicial precedent .
This case shows that the process to obtain land use permits , including Coastal Zone Development Permits such as that sought by the O ’ Haras , has been increasingly unpredictable and difficult to navigate over the past decade , especially in light of the state ’ s changing policies and regulations to address emerging issues such as climate change . The complex and unique nature of DEP ’ s permitting process only highlights the importance of retaining experienced environmental consultants and attorneys as early in the process as possible to help minimize the risk of potential hurdles and significant , years-long delays .
July 2023 COMMERCE 11