Agenda - Planning Commission - 04/07/2016

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February 25, 2016 I Volume 10 I Issue 4 Zoning Bulletin municipalities that create MPAPs may create their own dedicated "Public Access Fund," to which developers contribute in lieu of providing public access onsite. Also once an MPAP is adopted, the Rules provide that public access is required to satisfy conditions of a coastal permit for development in the municipality for permit ap- plications filed with the DEP. In towns without approved MPAPs, an applicant must comply with other provisions of the Rules that place significant restrictions upon him or her. Two nonprofit organizations, Hackensack Riverkeeper, Inc. and NY/NJ Baykeeper (collectively, the "Organizations") appealed the adoption of the Rules and specifically challenged the public trust rights rule and the public access rule. They argued that the DEP exceeded its authority in adopting. the Rules and maintained that management of lands held in the public trust was reserved to the Legislature. They also argued that the Rules were preempted by, or improperly infringed upon, powers reserved to the State's municipalities. They further contended that the Rules were not autho- rized by the Coastal Area Facility Review Act ("CAFRA") (N.J:S.A. 13:19-1 to - 21), or any other statute. DECISION: Rules invalidated. The Superior Court of New Jersey, Appellate Division, agreed with the Organizations that the adoption of the Rules exceeded DEP's authority under CAFRA and were not authorized by any other legisla- tive enactment or under DEP 's powers pursuant to the public trust doctrine. Accordingly, the court invalidated the Rules. In reaching its conclusion, the court noted that agency regulations are presumed valid and are given deference. Thus, the Organizations had the burden of demonstrating "an inconsistency between the regulation and the statute it implements, a violation of policy expressed or implied by the Legislature, an extension of the statute beyond what the Legislature intended, or a conflict between the en- abling act and other statutory law that cannot be hatiiionized." With regard to DEP 's authority to adopt the Rules pursuant to the public trust doctrine: DEP had contended that the public trust doc- trine authorized the DEP to adopt the Rules. The court explained that the public trust doctrine encompasses the "legal principle that the State holds `ownership, dominion and sovereignty' over tidally flowed lands 'in trust for the people.' " The public trust doctrine gives the public a right to access the beach, and the DEP asserted that doctrine could serve as the basis of the DEP's regulatory power in adopting the Rules. The court disagreed, holding that the public trust doctrine alone could not justify DEP's adoption. of the rules. The court noted further that the Legislature had specifically granted 10 ©2016 Thomson Reuters