N.J. Admin. Code § 7:7-19.2

Current through Register Vol. 56, No. 24, December 18, 2024

Section 7:7-19.2 - Reconsideration of the application of a rule(s) in this chapter

(a) The Department may reconsider the application of one or more of the rules in this chapter, provided:

1. The Department has rendered a decision on a permit application under the rules in this chapter as strictly applied;

2. All administrative and judicial appeals of the permit decision have been concluded; and

3. Any of the following requirements is met:

i. A court has determined that the issuance, modification, or denial of a coastal permit would constitute a taking of property, and the property owner thereupon submits a request for a reconsideration of the application of a rule(s) in this chapter;

ii. A takings complaint has been filed with the court or the court has determined that the issuance, modification, or denial of a coastal permit would constitute a taking of property, and the Department initiates the reconsideration; or

iii. The issuance, modification, or denial of a coastal permit is for a single-family home or duplex and the Department initiates the reconsideration prior to the filing of a takings complaint.

(b) In making the determination to reconsider an application of a rule in this chapter under (a) above, the Department shall prepare a written analysis that evaluates three factors:

1. The investments the property owner made in the property that is the subject of the coastal permit application and whether the investments were reasonable and reflected reasonable expectations, in accordance with (c) below;

2. The minimum beneficial economically viable use of the property, in accordance with (d) below; and

3. The environmental impacts of the minimum beneficial economically viable use for the property, and their consistency with the goals of CAFRA, the Waterfront Development Law, N.J.S.A 12:5-1 et seq., and the Wetlands Act of 1970, N.J.S.A. 13:9A-1 et seq., in accordance with (e) below.

(c) In determining whether the property owner's investments in the property as a whole were reasonable and reflected reasonable expectations, the Department shall evaluate the following information:

1. Conditions at the time of the investment. That is, the investment shall have been made in pursuit of development that would likely have been legally and practically possible on the property, considering all constraints existing and reasonably ascertainable at the time of the investment. For example, if a property owner bought land containing a dune that is regulated under this chapter, it would not be reasonable to expect that the property could be developed without constraints. In determining conditions at the time of the investment, the Department shall consider, at a minimum, the following:

i. Existing zoning and other regulatory requirements and conditions;

ii. Historic landmarks or other historic or cultural resources;

iii. The likelihood of obtaining other necessary approvals such as wastewater treatment approvals or approvals from other local, State or Federal agencies;

iv. Terrain and other site conditions, and/or environmental constraints, which could affect the potential uses of the property as a whole;

v. The existence of, or likelihood of obtaining, services to the property such as sewers or electricity; and

vi. Land uses on adjacent properties and in the area where the property is located;

2. Costs actually incurred in pursuit of development of the property as a whole;

3. Costs incurred in furtherance of a lawful action. For example, if the property owner began the project without the necessary permits, the cost of defending against an enforcement action for this violation would not constitute a reasonable investment that reflects reasonable expectations;

4. Costs relating only to the specific property as a whole that is the subject of the coastal permit application, and not including costs related to other properties; and

5. Any other factor affecting the property or the property owner, which is related to the reasonableness of the investments, the expectations, and/or the proposed use of the property.

(d) In determining the minimum beneficial economically viable use of the property, the Department shall consider existing legal precedent at the time of the determination. A use shall not be excluded from consideration as a minimum beneficial economically viable use merely because it diminishes the value of the property as a whole, does not result in a profit, reduces the marketability of the property as a whole, or does not allow the property owner to recoup all reasonable investments identified under (c) above.

(e) In determining the environmental impacts of any minimum beneficial economically viable uses of the property and the consistency of those impacts with the goals of CAFRA, the Waterfront Development Law, N.J.S.A. 12:5-1 et seq., and the Wetlands Act of 1970, N.J.S.A. 13:9A-1 et seq., in accordance with (b) above, the Department shall evaluate whether the minimum beneficial economically viable use would:

1. Adversely affect the special areas described at N.J.A.C. 7:7-9;

2. Result in irreversible losses of values and functions provided by coastal resources and whether such losses could be mitigated; and

3. Adversely affect public health, safety and welfare, and wildlife and marine fisheries.

(f) The Department shall not approve a minimum beneficial economically viable use as a result of the reconsideration of the application of a rule(s) in this chapter under this section if that use would cause any one of the following:

1. Irreversible losses of values and functions of the coastal resources that provide essential breeding, spawning, nesting, feeding, resting, or wintering habitats for marine fish and wildlife, including migratory birds, endangered species, and commercially and recreationally important wildlife. For the purposes of this section, "irreversible losses" means an alteration to the coastal resource that would eliminate one or more of the essential characteristics which provides the breeding, spawning nesting, feeding, resting or wintering habitat for the species in question that could not be mitigated;

2. Irreversible losses in water quality, resulting in degradation of ground or surface waters, in violation of the Federal, State or local water quality standards; or

3. Irreversible losses of wetlands and/or State open waters, providing essential flood and storm damage protection by absorption, the storage of water during high runoff periods and the reduction of flood crests, resulting in creation of a public nuisance.

(g) A property owner may request a reconsideration of the application of a rule(s) in this chapter only after:

1. The conclusion of any administrative and/or judicial appeal of the permit decision; and

2. A court has determined that the issuance, modification, or denial of a coastal permit without reconsideration would result in a taking of property without just compensation.

(h) A complete request for the reconsideration of a rule(s) in this chapter under this section shall include the following items:

1. A completed application form, as described at N.J.A.C. 7:7-27.3(c)1 and available from the Department at the address set forth at N.J.A.C. 7:7-1.6, indicating a request for reconsideration and the type of permit being requested;

2. Documentation in accordance with N.J.A.C. 7:7-24.6 that public notice of the request was provided in accordance with the requirements at N.J.A.C. 7:7-24.3. The public notice shall follow the form provided by the Department, and shall state that a request for reconsideration has been submitted to the Department, that the request can be reviewed at the municipal clerk's office or at the Department, and that comments may be submitted to the Department within 15 calendar days of receipt of the notice. This notice may be combined with the offer to sell the property required under (h)8 below;

3. An environmental impact statement or compliance statement, providing the information necessary for the Department to evaluate the environmental impacts of the proposed minimum beneficial economically viable use in accordance with (e) and (f) above;

4. Site plans showing the project that is proposed in order to provide a minimum beneficial economically viable use;

5. Document(s) showing when the property as a whole was acquired, the purchase price of the property as a whole, and the instrument which documents the applicant's real property interest;

6. Document(s) showing the amount and nature and date of any investments made to maintain and/or develop the property as a whole, other than the purchase price;

7. The language of a proposed conservation restriction that meets the requirements of (l)2 below;

8. Documentation that the property has been offered for sale, in a letter following the form provided by the Department, to all owners of property, including easements as shown on the tax duplicate within 200 feet of the property as a whole, and to the land conservancies, environmental organizations, and governmental agencies on a list supplied by the Department. This documentation shall include the following:

i. A copy of each letter that the property owner sends under this subsection;

ii. All responses the property owner receives to the letters sent under this subsection. Each response shall be submitted to the Department within 15 calendar days after the property owner's receipt of the response; and

iii. A list, certified by the municipality, of all owners of real property within 200 feet of the property as a whole, including owners of easements as shown on the tax duplicate. The list of property owners certified by the municipality shall be no more than one year old;

9. The written offer of sale required under (h)8 above shall be sent by certified mail and shall:

i. Indicate that the offer is open for a period of at least 90 calendar days;

ii. Include a copy of a fair market value appraisal, performed by a State-licensed appraiser, that assumes that a minimum beneficial economically viable use of the property would be allowed;

iii. Include full disclosure of the location on the property and of any of the special areas described at N.J.A.C. 7:7-9; and

iv. Indicate that a reconsideration of a rule(s) in this chapter to allow development of the property has been requested under this section;

10. A copy of a court determination that the Department's issuance, modification, or denial of a coastal permit would constitute a taking of property without just compensation; and

11. Documents showing that the property owner has concluded all administrative and judicial appeals of the Department's decision on the application for a coastal permit. Such documentation shall include the last of the following (submitted after the appeal period for the applicable decision has expired):

i. A Department decision on the coastal permit application, made in accordance with the rules as strictly applied;

ii. A final decision issued by the Commissioner regarding the Department's decision on the coastal permit application if the property owner contested the permit decision; or

iii. Documentation that all appeals of any final decision issued by the Commissioner under (h)11ii above have been concluded.

(i) In the case where the Department initiates the reconsideration of the application of a rule(s) in this chapter under (a) above, the Department shall, upon initiation of the reconsideration process follow all steps described in (i)1 through 3 below. In the case where the property owner is requesting a reconsideration of the application of a rule(s), the Department shall, upon initiation of the reconsideration process, follow the steps described in (i)1i, 1iii, 2, and 3 below:

1. Provide the following notifications:

i. Publication in the DEP Bulletin;

ii. In accordance with the requirements at N.J.A.C. 7:7-24.2 and 24.3; and

iii. To those who provided comments on the previous application that is the subject of the reconsideration;

2. Include in the notice the applicant's name; project name, if applicable; project number; county and municipality of the project; and an executive summary describing the development that is the subject of the reconsideration; and

3. Provide a 15-calendar-day comment period, commencing from the date of publication of the notice in the DEP Bulletin.

(j) If the Department determines to approve a development upon reconsideration of the application of a rule(s) in this chapter, the Department shall provide notice of the development that the Department proposes to allow under the reconsideration following the same procedure as described in (i)1i above except that the Department shall provide a 30-calendar-day comment period, commencing from the date of publication of the notice in the DEP Bulletin.

(k) The Department shall complete the written analysis required under (b) above, which shall incorporate its decision on the request for reconsideration of the application of a rule(s) in this chapter as follows:

1. For a request for reconsideration under (a) and (g) above, no later than 180 calendar days after receiving a complete request that meets all requirements at (h) above; or

2. For a reconsideration initiated by the Department under (a) above, no later than 180 calendar days from the publication of notice in the DEP Bulletin under (i) above.

(l) If the Department approves a development upon reconsideration of the application of a rule(s) in this chapter under this section, the approval shall, at a minimum:

1. Be the minimum relief necessary to enable the property owner to realize a minimum beneficial economically viable use of the property as a whole, consistent with constitutional standards; and

2. Ensure that any part of the property as a whole that the Department does not allow to be developed upon reconsideration of the application of a rule(s) in this chapter under this section will be protected from future development by a recorded conservation restriction.

(m) The property owner or any other person with a particularized property interest who is aggrieved by the Department's determination on a reconsideration of the application of a rule(s) in this chapter may request an adjudicatory hearing on the reconsideration determination pursuant to the procedures set forth at N.J.A.C. 7:7-28.1.

N.J. Admin. Code § 7:7-19.2

Adopted by 47 N.J.R. 1392(a), effective 7/6/2015

Amended by 50 N.J.R. 361(a), effective 1/16/2018

Amended by 53 N.J.R. 514(b), effective 4/5/2021