Tuesday, June 17, 2014
06/03/14 PINELANDS PRESERVATION ALLIANCE AND MICHAEL PERLMUTTER VS. STATE OF NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION A-4880-11T2/ A-4883-11T2
06/03/14 PINELANDS PRESERVATION ALLIANCE AND MICHAEL
PERLMUTTER VS. STATE OF NEW JERSEY DEPARTMENT OF
ENVIRONMENTAL PROTECTION A-4880-11T2/ A-4883-11T2 (CONSOLIDATED)
This is a challenge by environmental groups to a CAFRA permit issued by the DEP to the developer of a Walmart in the coastal zone of the Pinelands National Reserve, on property inhabited by the northern pine snake, constituting an endangered or threatened species habitat. We held that in issuing the permit, the DEP did not waive compliance with its coastal regulations by allowing the developer to mitigate any adverse development impacts by using habitat enhancements on off-site, non-contiguous parcels. In so ruling, we found N.J.A.C. 7:7E-1.6 allows generally for mitigation and that under N.J.A.C. 7:7E-3.38, the DEP may use a "net" habitat value calculation in considering an "overall adverse impact," (i.e., whether the direct loss of pine snake habitat on the construction site may be offset by the proposed preservation and enhancement activities both on, immediately adjacent to, and off the development site).
We remanded the matter to the agency, however, to reconsider under N.J.A.C. 7:7E-5B.6(g), the maximum impervious coverage limits (80% vs. 30%) applicable to the developer's revised 2010 application, which in turn is reliant on the community planning boundaries on the DEP's CAFRA planning map. N.J.A.C. 7:7E-5B.6(g) designates certain areas in which development would be limited to the impervious coverage limits of the underlying coastal planning area, here the 30% Coastal Suburban Planning Area, N.J.A.C. 7:7E-5B.6(e). In so ruling, we found the Permit Extension Act, N.J.S.A. 40:55D-136.1 to -136.6 extended center designations created pursuant to CAFRA, including the Toms River Coastal Regional Center designation at issue here, preventing them from expiring on March 15, 2007.