08-16-07
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
restrictions.
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
date)
