03-06-09 Albert Dragon, et al. v. New Jersey Department of
Environmental Protection, et al.
A-5743-06T2
At issue is whether an administrative agency, through its
dispute resolution process, can effectively override statutory,
as well as its own regulatory requirements.
Here, after initially denying a CAFRA coastal general
permit for the tear down and reconstruction of an oceanfront
home nine feet closer to the ocean, the DEP, finding a
"litigation risk", settled the homeowner's challenge to the
agency's denial by issuing a letter of authorization "in lieu of
permit", approving the development subject to conditions
designed to meet several of the environmental concerns
underlying the regulation's development ban.
On a third-party challenge to DEP's authorization, we held
that, given the express language of the exception to the
regulatory development ban, which the homeowner clearly did not
meet, the DEP did not correctly assess its "litigation risk",
and that, in any event, the agency could not use its settlement
process to circumvent CAFRA's substantive permitting
requirements to allow regulated development in a coastal region
governed exclusively by CAFRA and its implementing regulations.
