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Debate Over CAFRA Regs Forces New Proposal

October 30, 2016

Amidst a barrage of varying viewpoints and beliefs, the nation's most densely populated state is attempting to solidify its strategy to combat unmanaged growth, or sprawl.  And within that war, a fierce battle brews over the method in which to combat sprawl in New Jersey's coastal area. 

On March 10, 1999, the New Jersey Department of Environmental Protection (DEP) announced that it will withdraw and, at a later date, re-propose amendments to the Coastal Zone Management Rules.  These regulations provide the substantive standards for construction permits under the Coastal Area Facility Review Act ("CAFRA"), N.J.S.A. 13:19-1 et seq., the Waterfront Development Law, N.J.S.A. 12:5-3, and the Wetlands Act of 1970 (Coastal Wetlands), N.J.S.A. 13:9A-1 et seq.  The proposed regulations initially were announced last Nov. 9, followed by publication Dec. 7 in the New Jersey Register.

Prompting the regulatory changes are 1993 amendments to CAFRA. One provision of the amendments required NJDEP, in consultation with the State Planning Commission and appropriate county and municipal governments, to promulgate CAFRA regulations "closely coordinated with the provisions of the New Jersey State Development and Redevelopment Plan ["State Plan"]" within one year of the statutory amendments, or by July 19, 1993.

The State Plan, a product of the 1986 State Planning Act, seeks to substitute the sprawling, consumptive pattern of unplanned growth that has devastated many rural and agricultural landscapes with integrated, statewide planning designed to conserve natural resources, provide needed housing and public facilities, and encourage economic growth by concentrating development and redevelopment.

Briefly, the State Plan aims to concentrate development in areas that lend themselves to growth, and to limit development in the more sensitive areas.  The State Plan categorizes all land within the State into five types of "planning areas," based on shared characteristics such as population density, infrastructure, land use, and environmentally sensitive features.  From the most development-oriented to least, the five Planning Area types are:  metropolitan, suburban, fringe, rural, and environmentally sensitive.  If applicable, tracts of land can be further classified into centers, cores, or nodes, which further delineate areas where development is to be encouraged. 

There are five types of Centers (again in order of decreasing development intensity): urban centers, regional centers, towns, villages, and hamlets.  Each of the different categories carries its own growth management strategy and development goals.

Faced with the legislative directive to "closely coordinate" (a term not found in other statutes) regulations with the State Plan, and after years of preparatory effort, DEP's November regulations proposed to achieve the close coordination by linking impervious cover and vegetative cover requirements with a site's categorization under the State Plan.  Basically, a greater percentage of impervious cover (for example, paving, buildings, etc.) is permitted in those State Plan categories where development is to be encouraged.  Put another way, the more impervious cover that is permissible on a given site, the more development that can take place there.

Cover Standards

For lands within the State's CAFRA area, the proposed regulations did away with the existing method of determining the cover standards applicable to a given property by means of a site-specific analysis of growth rating, environmental sensitivity, and development potential.  In its place, DEP proposed tables that provide impervious and vegetative cover percentages for each State Plan category.  With some variation, the cover standards for a particular site would be the percentage assigned to that site's State Plan category multiplied by the net land area.

For example, the impervious cover limit for a site located in a designated "town" would be the higher of (a) the product of the net land area in acres multiplied by the impervious cover percentage of 70 percent (the percentage assigned to a designated town), or (b) the legal, existing impervious cover.

A major hindrance to implementation of NJDEP's strategy was the fact that at the time the proposed regulations were issued, not all locations in the CAFRA zone had been categorized and mapped under the State Plan.  For instance, only six centers had been designated in a pool of over one hundred potential centers.  To overcome this substantial hurdle, the agency delineated 96 interim coastal centers (coastal regional centers, coastal towns, coastal villages, and coastal hamlets), cores and nodes (within coastal regional centers and coastal towns) for the purpose of applying the CAFRA cover requirements.  DEP delineated the ninety-six areas to reflect existing development, and drew boundaries along physical features such as "roads, water bodies, railroad lines, and changes in development patterns."

In the proposed rule's summary, DEP specifically acknowledged that its Coastal Center designations would have limited application.  First, the interim delineations would be only for the purpose of determining the new CAFRA area cover standards.  Second, each of NJDEP's interim designations and boundaries for a particular community would be automatically superseded by the State Plan's designation and "community development boundary" once the community receives formal approval from the State Planning Commission.

DEP encouraged communities within the CAFRA area to obtain State Plan approval of community development boundaries.  It acknowledged that boundaries resulting from the State Planning Commission's process for approving boundaries "should better reflect each community's local plans and zoning than do the Department-delineated coastal center boundaries."

Responses to the proposed regulations from various interested groups, however, have focused on issues other than the lack of CAFRA-area community designations and center boundaries under the State Plan.  For instance, resolutions were passed by the Senate and Assembly finding that the proposed regulations are inconsistent with the intent of the legislature as expressed in CAFRA and the 1993 CAFRA amendments. Senate Concurrent Resolution 96-208 (December 10, 1998); Assembly Concurrent Resolution 150-208 (January 7, 1999).

Further, major protests were heard at public hearings from local officials and builders.  These groups argued that additional controls would stifle growth.  Still another perspective has been articulated by certain environmental groups that filed suit against NJDEP in November to force finalization of the regulations.  According to the environmental groups, the longer the CAFRA zone is without State Plan-oriented regulations, the longer sprawl development can occur within the coastal area.  As of March 10, 1999, sixty-nine significant CAFRA permits were pending in the Rural and Environmentally Sensitive Planning Areas.

Confronted with the strong opposition, DEP determined that substantial changes are necessary to the proposed regulations, and that, therefore, the proposed regulations would have to be withdrawn and re-proposed.  This determination was based upon the Administrative Procedure Act ("APA").  Under the APA regulations, when an agency decides to make changes in a proposed rule that are "so substantial" that "the changes effectively destroy the value of the original notice, the agency shall give a new notice of proposed rule and public opportunity to be heard."  The APA regulation describes the concept of "so substantial" in terms of, for example, "enlarg[ing] or curtail[ing] the scope of the proposed rule and its burden on those affected by it."

New Proposal

DEP has explained the re-proposal will not alter the basic structure of linking cover standards in the CAFRA area to the State Plan.  Rather, the agency has stated that the focus of the changes will be a revision of the treatment of interim coastal center delineations on barrier islands, addition of more interim centers, and variation of the lines of existing interim centers.  A letter filed with Mercer County Superior Court on behalf of DEP in the suit by the environmental groups suggests that other substantial changes also may be made.  DEP anticipates issuing the re-proposed regulations this summer and the final regulations in December.

It appears that some limited progress is being made to resolve the central difficulty of promulgating regulations to "closely coordinate" with a Plan that itself has not been fully implemented.  Of DEP's 96 interim coastal centers, several are listed in the 1999 Interim Plan as centers that were either proposed or submitted as full petitions in the 1998 county and municipal cross-acceptance procedure required under the State Plan approval process.

However, without further guidance from the Legislature on the meaning of "close coordination" or, as was noted by the court in the suit by environmental groups, the unlikely enactment of a new law directing that the State Plan does not apply to the CAFRA area, perhaps efforts by those outside of DEP may best be spent working for approval under the State Plan of community development boundaries for all coastal communities.

Our Team

Marilynn R. Greenberg

Marilynn R. Greenberg
Of Counsel

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