Agenda - Planning Commission - 04/07/2016

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Zoning Bulletin February 25, 2016 I Volume 10 I Issue 4 municipalities the authority to exercise their police powers over publicly -owned lands (see N.J.S.A. 40:48-2) and gave seashore municipalities "exclusive control" over municipally -owned beaches (see N.J.S.A. 40:61-22.20). With regard to DEP's authority to adopt the rules pursuant to CAFRA, or any other statute: the court noted that CAFRA delegates to DEP powers to regulate land use within the coastal zone "for the general welfare." However, the court had found that "even though CAFRA delegates authority to the DEP to regulate certain land uses within the coastal zone, it does not preempt municipal regulation under the [Municipal Land Use Law (MLUL)]." Therefore, DEP's regulatory powers under CAFRA extended to "land uses in the coastal zone, [but] the Legislature did not authorize [ ] DEP to preempt the basic municipal power to manage and control municipally -owned beaches, including deciding when those areas should be open to the public. The court determined that the only connection it could "discern between CAFRA's permitting process and. . .the Rules [was] that applicants for CAFRA permits in municipalities that ha[d] adopted approved MPAPs [could] satisfy public access requirements" "in accordance with the [MPAP]," The court concluded that "any nexus between CAFRA's general statutory purposes, its permitting processes and the Rules [was] limited at best, and it [could] not justify the broad and pervasive regulatory regime imposed by the Rules taken as a whole," The Organizations had also argued that the Rules conflicted with the provisions of the MLUL in that the Rules authorized the creation of municipal Public Access Funds. The court found no statutory authority by which municipalities could accept monetary contribu- tions from permit applicants simply by adopting an MPAP. The court said no such authority was provided by the MLUL or any other statute. Thus, the court concluded that those provisions of the Rules that empowered a municipality to create a Public Access Fund lacked any statutory authority and were therefore ultra vires (i.e., beyond legal authority). In accordance with its holdings, the court concluded that the Rules must be stricken, and the court invalidated the public trust rights rule (N.J.A.C. 7:7-9.48) and the public access rule (N.J.A.C. 7:7-16.9), "as well as any other provisions of the regulations that rely upon those two sections." See also: Borough ofAvalon v. New Jersey Dept. of Environmental Protection, 403 N.J. Super. 590, 959 A.2d 1215 (App. Div. 2008). ©2016 Thomson Reuters 11