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.
