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Monday, August 20, 2007

Sandra W. Seigel v. The New Jersey Department of Environmental Protection


In this opinion, we were called upon to interpret
regulations promulgated by the Department of Environmental
Protection (DEP) that define a "dune," N.J.A.C. 7:7E-3.16(a),
and a "primary frontal dune," N.J.A.C. 7:7-7.8(d)1ii.

Petitioner's applied for a coastal general permit under the
Coastal Area Facility Review Act (CAFRA) seeking permission to
construct a single-family oceanfront home. The agency concluded
that the entirety of petitioner's property was a "primary
frontal dune," and denied the permit.

We reversed. We interpreted the regulatory definitions and
concluded that petitioner's entire property was not a "primary
frontal dune" and determined that the proposed construction area
was not on a dune and, therefore, not subject to regulatory

We also concluded that DEP's interpretation of the
regulatory language resulted in a fundamental unfairness to
petitioner whose surrounding neighbors had constructed similar
homes on their adjacent properties. (*Approved for Publication