Agenda - Planning Commission - 05/04/1999

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Page 2- April 25, 1999 Coastal Zone -- Township de~ies applicatiOn to build dock despite state's approval Citation: Tumino v. Long Beach Township, Superior Court of New Jersey, Appellate Div., No. A-7135-96T2 (J 999) Tumino owned waterfront property in Long Beach Township, N.J. He wanted to remove and replace an existing dock, breakwater, and bulkhead. Tumino applied to the state Department of Environmental Protection (DEP) for a waterfront development permit, proposing a dock that would extend 215 feet into the water in order to maintain the 4-foot depth needed to dock two boats. As required by statute, Tumino notified his neighbors of his application, as well as the township environmental committee, the planning board, and various township officials. After considering the neighbors' objections, most of which were based on fears the dock would interfere with other recreational water activities and would obstruct views of the bay, the DEP issued Tumino a permit for the dock. The DEP found other docks nearby extended further into the water than Tumino's would and found the dock would be 450 feet from the intracoastal waterway and therefore wouldn't interfere with navigation. Tumino applied to the township docks and wharves committee for a local permit for the dock. The committee denied his request after finding the dock would violate the township zoning ordinance because it would create a naviga- tional hazard to other boaters and jet-skiers. Tumino sued the township, asking the court to void the township's permit denial and to order the committee to either issue a building permit for the dock or to declare that none was needed. According to Tumino, the committee had no authority to regulate an activity that was preempted by state law. He argued the township could regulate how a dock would impact legitimate upland zon- ing issues, but couldn't regulate the offshore area. The court agreed with Tumino, cor~cluding the township's zoning ordi- nance was preempted by state law insofar as it regulated activities (such as building a dock) that were authorized by state law. The township appealed. DECISION: Affirmed. The.committee's denial .of Tumino's permit application was reversed. Tumino could build the dock. The DEP considered navigational and access issues and found the proposed dock wouldn't constitute a navigational hazard or obstacle. The neighbors and the township had ample opportunity to express their concerns to DEP. The township's decision was based on the same issues that were dismissed by DEP. The town- ship wasn't concerned with whether the dock should be constructed in that area, its only concern was that the dock's length would block navigation or neigh- bors' access to the water -- concerns that were within DEP's exclusive control. see also: Anfuso v. Seeley 579 A.2d 817 (1990). see also: Summer v. Township of Teaneck, 251 A.2d 761 (1969). .77