SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1088-14T2

IN RE CAFRA PERMIT NO.

1512-08-0020.1CAF080001

RAILROAD AVENUE, LACEY

TOWNSHIP, OCEAN COUNTY,

NEW JERSEY.

____________________________________

Argued September 20, 2016 – Decided

Before Judges Koblitz, Rothstadt and Sumners.

On appeal from the Department of Environmental 

Protection.

Edward Lloyd argued the cause for appellants 

The Sierra Club, Lacey Rail Trail 

Environmental Committee, Save Barnegat Bay, 

and The American Littoral Society (Columbia 

Environmental Law Clinic, Morningside Heights 

Legal Services, Inc., attorneys; Mr. Lloyd and 

Susan J. Kraham, on the briefs).

Timothy P. Malone, Deputy Attorney General, 

argued the cause for respondent New Jersey 

Department of Environmental Protection

(Christopher S. Porrino, Attorney General, 

attorney; Melissa H. Raksa, Assistant Attorney 

General, of counsel; Mr. Malone, on the 

brief).

Jared J. Monaco argued the cause for 

respondent Township of Lacey (Gilmore & 

Monahan, P.A., attorneys; Mr. Monaco, of 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." 

Although it is posted on the internet, this opinion is binding only on the 

parties in the case and its use in other cases is limited. R.1:36-3.

March 29, 2017
2 A-1088-14T2

counsel and on the brief; Michael S. Nagurka, 

on the brief).

PER CURIAM

Respondent, the New Jersey Department of Environmental 

Protection (DEP), issued a Coastal Area Facility Review Act 

(CAFRA), N.J.S.A. 13:19-1 to -21, permit to respondent Township 

of Lacey (Lacey) after denying two prior applications for the same 

permit. Lacey needed the permit for construction of a roadway and 

an adjacent bike and pedestrian path on an abandoned railroad 

right of way (ROW). The proposed roadway is intended to help 

alleviate traffic on Route 9 and the bike/pedestrian path is 

intended to be incorporated into an existing Ocean County 

recreational trail that traverses several towns.

Appellants, Lacey Rail Trail Environmental Committee (LRTEC), 

The Sierra Club, Save Barnegat Bay, and the American Littoral 

Society, argue that the DEP's decision to issue the permit 

constitutes an unexplained summary reversal of the DEP's earlier 

denials, a failure to recognize the subject property as public 

open space, and that the proposed project does not comply with 

CAFRA and related regulations. They also contend that in reaching 

its decision, the DEP engaged in impermissible rulemaking. 

Moreover, they argue that the DEP's findings were unsupported by 

the evidence. We disagree and affirm.
3 A-1088-14T2

The DEP issued the permit to Lacey, "authoriz[ing] the 

construction of a new 1.9 mile bypass road . . . within the former 

Barnegat Branch Railroad [ROW]." The proposal for the new road, 

designated as Railroad Avenue, included two vehicle lanes, with 

an additional right-turn lane at one intersection, and a pedestrian 

and bike path, separated from the roadway by a two-foot landscaped 

buffer. It is considered a bypass road because it connects Lacey 

Road to South Street and runs parallel to State Highway Route 9, 

for the purpose of "alleviat[ing] traffic congestion" on Route 9 

"by providing an alternate route for local traffic." 

The DEP's approval included a condition that no new curb cuts 

shall be permitted, so that there would be no additional 

development along the roadway. It also recognized that limited

clearing of vegetation would be necessary, but it required revegetation of portions of the area and installation of vegetation 

buffers as additional conditions. 

The DEP's decision to issue the permit for Railroad Avenue's

construction was reached after many years of consideration. The 

approved project represented a change from earlier proposals made 

in 2006 and 2009 in that it reduced the length of the roadway and 

excluded certain areas as suggested by the DEP. 

The creation of the bypass road represents a substantial 

change from the ROW's historical use by the public. The area was 
4 A-1088-14T2

originally part of an approximately fifteen-mile railroad rightof-way in Ocean County, known as the Barnegat Branch Railroad ROW 

owned by the Central Railroad of New Jersey. The railroad 

abandoned the ROW in 1973 and since then the railroad ties and 

tracks located within the ROW were removed. The ROW has been used 

by the public as a walking, jogging, and bike trail.

Lacey acquired a 4.8 miles long and fifty feet wide portion 

of the ROW through a 1993 tax foreclosure action. It did not 

dedicate the area as open public space, but instead intended to 

construct the roadway to help alleviate congestion on Route 9. 

Other than keeping the ROW's intersection with other roadways 

clear for traffic safety reasons, Lacey did not maintain the 

portion of the ROW it acquired by mowing, clearing, or otherwise 

improving the property. 

In May 2004, Lacey granted Ocean County a twelve-foot-wide 

easement along the western edge of the ROW for construction of a 

bike path. The following month, the County passed an ordinance 

authorizing "the design, permitting, and construction of a 

recreational [15.6 mile] trail project" through five

municipalities "to be known as the Barnegat Branch Trail." The 

county's plan for the portion located in Lacey was limited to a 

seven-foot-wide trail throughout the entirety of the fifty-footwide area owned by Lacey. 
5 A-1088-14T2

Beginning in 2005, Lacey sought approval from the DEP to 

develop a portion of the ROW as a roadway. In March, the DEP 

issued Lacey a permit authorizing the construction of a 1700-foot 

(.32-mile) portion of Railroad Avenue in connection with the 

anticipated construction of a nearby senior housing project. In 

accordance with this permit, a 950-foot portion of Railroad Avenue 

was constructed between South Street and Laurel Boulevard before 

the permit expired. In April 2006, the DEP denied another 

application by Lacey for a permit to construct a .82-mile portion 

of Railroad Avenue between Lacey Road and Musket Road/First Street. 

The DEP denied the permit application after finding the proposed 

construction failed to comply with certain Coastal Zone Management 

Rules (CZM Rules) – including those relating to public open space, 

N.J.A.C. 7:7E-3.40; location of linear development, N.J.A.C. 7:7E6.1; basic location, N.J.A.C. 7:7E-6.2; secondary impacts, 

N.J.A.C. 7:7E-6.3; and buffers and compatibility of uses, N.J.A.C.

7:7E-8.13.1 The agency found the proposal also failed to satisfy 

three of the criteria set forth in CAFRA Section 10, N.J.S.A.

13:19-10 – specifically, subsections (e), (f), and (g) – though 

it found Lacey satisfied the remaining Section 10 criteria. 

 

1 Each of the regulations relied upon by the DEP in response to 

the relevant permit applications were recodified, without 

significant amendment, effective July 6, 2015. 47 N.J.R. 1392(a). 
6 A-1088-14T2

Lacey applied for the CAFRA permit at issue and for a 

Freshwater Wetlands Transition Area Waiver in September 2008. 

The application sought permission to construct a 2.21-mile road 

"within [the] former Barnegat Branch railroad [ROW]" that would 

connect Route 9 to Lacey Road. The DEP accepted comments for a 

thirty-day period. Those opposed to the proposal argued that the 

ROW "should become a linear greenway for pedestrian and bicycle 

access linking adjacent Townships." Those in favor argued the 

proposed roadway would alleviate traffic on the parallel stretch 

of Route 9, "support better response times for emergency 

responders, provide an alternative evacuation route in an 

emergency, and increase safe access to a local school and church."

The DEP denied the application without prejudice in March 

2009, after finding the proposed construction failed to comply 

with several CZM Rules, including those pertaining to public open 

space, N.J.A.C. 7:7E-3.40; location of linear development, 

N.J.A.C. 7:7E-6.1; basic location, N.J.A.C. 7:7E-6.2; secondary 

impacts, N.J.A.C. 7:7E-6.3; and buffers and compatibility of uses, 

N.J.A.C. 7:7E-8.13. However, the DEP found the proposal satisfied 

the criteria set forth in N.J.S.A. 13:19-10.

Lacey appealed the denial of the permit, requesting an 

adjudicatory hearing. The matter was referred to the Office of 

Administrative Law. Prior to a hearing, Lacey and the DEP entered
7 A-1088-14T2

into settlement discussions that resulted in Lacey submitting

revised plans and related information for the project. The 

additional information included revised traffic studies and

related proposals. Based on those revised plans, Lacey and the 

DEP executed a stipulation of settlement (Stipulation) on August 

3, 2010, and Lacey withdrew its hearing request without prejudice. 

The DEP published notice of its intent to issue the permit 

in its August 18, 2010 bulletin and accepted public comments until 

November 8, 2010. By the end of the comment period, the agency 

had received over 600 comments, which "generally addressed 

concerns with the need for the project, stormwater impacts, 

potential impacts to wetlands, category one waters, special water 

resource protection areas, public open space, and the condemnation 

of a single family home." The comment submitted by the LRTEC 

argued the DEP was required to deny the permit because the 

deficiencies found in the earlier application had not been 

remedied.2

In its January 11, 2012 bulletin, the DEP published notice 

of its intent "to issue [the] CAFRA permit with a hardship 

exception for a Special Water Resources Protection Area (SWRPA)." 

During the public comment period, the DEP received approximately 

 

2 On March 30, 2011, Lacey and the DEP executed an addendum to 

the Stipulation.
8 A-1088-14T2

128 comments, which largely raised the same concerns raised in 

response to the DEP's initial notice of intent to issue the permit.

After concerns were raised that the project would have a 

negative impact on the freshwater wetlands in the Oak Bluff Avenue 

portion of the ROW, the DEP suggested Lacey "further consider and 

more closely evaluate" an alternative that "would relocate the 

northern terminus of the project" to alleviate the concern. In 

response to the DEP's suggestion, Lacey submitted a revised plan 

that modified the proposed roadway to avoid the Oak Bluff Avenue 

area, thereby reducing its length to 1.9 miles. The DEP published 

notice of its intent to issue the CAFRA permit in its July 24, 

2013 bulletin, explaining the relation to the earlier Stipulation 

and the revisions made to the plans and accepted public comments. 

On October 16, 2014, the DEP issued Lacey the challenged 

permit and a fifty-five page Final Summary Report explaining its 

reasons for its action. In its Summary Report, the DEP analyzed 

the project's compliance with the relevant CZM Rules and the CAFRA 

Section 10 criteria, and found it fully complied with all rules 

and requirements provided Lacey complied with the special 

conditions imposed. Moreover, the DEP explained that the basis 

for its reconsideration of the earlier applications was the receipt 
9 A-1088-14T2

of additional information.3 Notice of the permit's issuance was 

published in the DEP's November 5, 2014 bulletin. This appeal 

followed. 

We begin by acknowledging that our "role in reviewing an 

administrative agency's final decision is limited." Univ. Cottage 

Club of Princeton N.J. Corp. v. N.J. Dep't of Envtl. Prot., 191 

N.J. 38, 48 (2007) (citing In re Taylor, 158 N.J. 644, 656 (1999)). 

We will "reverse [an agency's final decision] only if [we]

'conclude[] that [its] decision . . . is arbitrary, capricious, 

or unreasonable, or is not supported by substantial credible 

evidence in the record as a whole.'" In re Adoption of Amendments 

to Water Quality Mgmt. Plans, 435 N.J. Super. 571, 582 (App. Div.)

(alteration in original) (quoting J.D. v. N.J. Div. of 

Developmental Disabilities, 329 N.J. Super. 516, 521 (App. Div. 

2000)), certif. denied, 219 N.J. 627 (2014). An agency's findings 

of fact "are considered binding on appeal when supported by 

adequate, substantial and credible evidence." Taylor, supra, 158 

N.J. at 656 (quoting Rova Farms Resort, Inc. v. Inv'rs Corp., 65 

N.J. 474, 484 (1974)). "The burden of demonstrating that the 

 

3 These documents included a draft of Lacey's 1998 addendum to 

its Master Plan and a 2004 report relating to the reexamination 

of its master plan. These documents indicate that Lacey did not 

intend to keep the property in its current condition, but rather 

called for the development of the roadway. 
10 A-1088-14T2

agency's action was arbitrary, capricious or unreasonable rests 

upon the [party] challenging the administrative action." In re 

Adoption of Amendments to Water Quality Mgmt. Plans, supra, 435 

N.J. Super. at 582 (alteration in original) (quoting In re Arenas, 

385 N.J. Super. 440, 443-44 (App. Div.), certif. denied, 188 N.J.

219 (2006)). We accord deference to a final agency action, and 

will not substitute our judgment for the expertise of an agency 

"so long as that action is statutorily authorized and not otherwise 

defective because arbitrary or unreasonable [or not supported by 

the record]." In re Authorization for Freshwater Wetlands Gen. 

Permits, 372 N.J. Super. 578, 593 (App. Div. 2004) (alteration in 

original) (quoting In re Distrib. of Liquid Assets, 168 N.J. 1, 

10 (2001)).

Our "substantial deference [also extends] to an agency's 

interpretation and application of its own regulations, 

particularly on technical matters within the agency's special 

expertise." Pinelands Pres. All. v. N.J. Dep't of Envtl. Prot., 

436 N.J. Super. 510, 524 (App. Div.), certif. denied, 220 N.J. 41 

(2014). However, we are "in no way bound by the agency's 

interpretation of a statute or its determination of a strictly 

legal issue." US Bank, N.A. v. Hough, 210 N.J. 187, 200 (2012) 

(quoting Univ. Cottage Club of Princeton N.J. Corp., supra, 191 

N.J. at 48). "When 'the issue involves the interpretation of 
11 A-1088-14T2

statutes and regulations, it is a purely legal issue, which [is] 

consider[ed] de novo.'" Pinelands Pres. All., supra, 436 N.J. 

Super. at 524-25 (quoting Klawitter v. City of Trenton, 395 N.J. 

Super. 302, 318 (App. Div. 2007)).

Applying these standards, we turn first to appellants' 

contention that the DEP "erred as a matter of law" by failing to 

make specific findings of fact to support its conclusion that the 

proposed project complied with N.J.S.A. 13:19-10(e) and (f).4 

They argue the DEP, instead, "summarily recite[d] the statutory 

language of CAFRA, which does not amount to a finding of fact" and 

that "[t]his [c]ourt must reject the permit on this basis alone." 

Respondents argue that the Summary Report contains significant 

 

4 N.J.S.A. 13:19-10 provides, in pertinent part:

A permit may be issued pursuant to this act 

only upon a finding that the proposed 

development:

. . . .

e. Would cause minimal feasible 

interference with the natural 

functioning of plant, animal, fish, and 

human life processes at the site and 

within the surrounding region.

f. Is located or constructed so as to 

neither endanger human life or property 

nor otherwise impair the public health, 

safety, and welfare.
12 A-1088-14T2

discussion of the facts underlying its findings with respect to 

N.J.S.A. 13:19-10(e) and (f), and that appellants improperly 

consider the agency's statement of its findings "in a vacuum, 

ignoring the preceding detailed and extensive Summary Report that 

provides the context for these findings."

When deciding whether to issue a CAFRA permit pursuant to 

N.J.S.A. 13:19-10, the DEP is required to consider whether the 

applicant satisfies the seven considerations listed in the 

statute. See N.J.S.A. 13:19-10 (a) – (g).

We conclude from our review that the DEP satisfied its 

obligation to "make findings under the standards in N.J.S.A. 13:19-

10." In re Protest of Coastal Permit Program Rules, 354 N.J. 

Super. 293, 332 (App. Div. 2002). With respect to N.J.S.A. 13:19-

10(e), the DEP stated in its Summary Report that it found that 

"[d]evelopment of the project as proposed would not interfere with 

the natural functioning of plant, animal, fish and human life 

processes." As to N.J.S.A. 13:19-10(f), the DEP found: "The 

project would not endanger human life or property. The [DEP] has 

determined that the project promotes public health, safety and 

welfare by providing a safe alternative for local travel trips." 

In reaching those conclusions, the DEP addressed issues regarding 

"[e]ndangered or threatened wildlife or plant species habitats"

and issues of "public health, safety and welfare" in the Summary 
13 A-1088-14T2

Report. For example, the DEP found no evidence of any potential 

impact to threatened or endangered wildlife or plant species. The 

agency investigated claims of the project's potential for 

interfering with barred owl habitats and concluded there was no 

danger, nor did the area contain any marine fisheries, endangered 

or threatened species habitats or unique wildlife habitat. After 

considering the traffic studies and related information, the DEP 

found that the roadway would improve the quality of life for the 

residents by relieving traffic congestion. It made specific 

findings concerning the benefit of the project to public health 

and safety, noting the roadway would provide a safe alternative

for travel along Route 9, while still allowing the benefits of a 

walking and bike trail as part of the county's Barnegat Branch 

Trail.

Appellants next argue the DEP's issuance of the permit must 

be reversed because, in finding the proposal complied with the 

rules regarding public open space, N.J.A.C. 7:7E-3.40, and 

secondary impacts, N.J.A.C. 7:7E-6.3, the DEP "applied previously 

unannounced administrative standards" for determining whether a 

property would be considered open space. They contend the new 

standards were the product of rulemaking, requiring notice and 

comment prior to their application, because they were "not clearly 

inferable from the applicable regulatory provision[s] or enabling 
14 A-1088-14T2

legislation," did not "reflect a policy previously expressed by 

the agency," and lacked any "indication that [they would] not 

apply generally and uniformly to similarly situated persons 

seeking CAFRA permits in the future." Respondents argue that 

appellants' contention fails to appreciate the distinction between 

the agency considering a variety of factors to make its finding 

and setting new standards for information it will consider in 

making a determination. 

"The [Administrative Procedure Act (APA)] defines an 

administrative rule as an agency's 'statement of general 

applicability and continuing effect that implements or interprets 

law or policy, or describes the organization, procedure or practice 

requirements' of the agency." In re Authorization for Freshwater 

Wetlands Statewide Gen. Permit 6, 433 N.J. Super. 385, 413 (App. 

Div. 2013) (quoting N.J.S.A. 52:14B-2(e)). "Prior to adopting or 

amending any rule, an administrative agency must give notice of 

its intended action and afford interested parties a 'reasonable 

opportunity to submit data, views or arguments, orally or in 

writing.'" Univ. Cottage Club of Princeton N.J. Corp., supra, 191 

N.J. at 53 (citation omitted) (quoting N.J.S.A. 52:14B-4(a)(3)). 

In evaluating whether an agency's determination announces a 

rule triggering the notice requirement, courts consider whether 

the determination:
15 A-1088-14T2

(1) is intended to have wide coverage 

encompassing a large segment of the regulated 

or general public, rather than an individual 

or a narrow select group; (2) is intended to 

be applied generally and uniformly to all 

similarly situated persons; (3) is designed 

to operate only in future cases, that is, 

prospectively; (4) prescribes a legal standard 

or directive that is not otherwise expressly 

provided by or clearly and obviously inferable 

from the enabling statutory authorization; (5) 

reflects an administrative policy that (i) was 

not previously expressed in any official and 

explicit agency determination, adjudication 

or rule, or (ii) constitutes a material and 

significant change from a clear, past agency 

position on the identical subject matter; and 

(6) reflects a decision on administrative 

regulatory policy in the nature of the 

interpretation of law or general policy.

[Metromedia, Inc. v. Dir., Div. of Taxation,

97 N.J. 313, 331-32 (1984).]

"The pertinent evaluation focuses on the importance and weight of 

each factor, and is not based on a quantitative compilation of the 

number of factors which weigh for or against labeling the agency 

determination as a rule." In re Provision of Basic Generation 

Serv., 205 N.J. 339, 350 (2011).

With respect to the public open space rule, N.J.A.C. 7:7E3.40,5 appellants contend the DEP "announce[d] four new standards 

 

5 The rule in effect at the time the permit was issued 

defined public open space as:

land areas owned or maintained by State, 

Federal, county and municipal agencies or 

private groups . . . and used for or dedicated 
16 A-1088-14T2

for [determining] what constitutes 'public open space:'" (1) "the 

'purpose' for which the land is acquired"; (2) whether the land 

is "designated as 'a Suburban Planning Area'" rather than "'a park 

of natural area' on the State Development and Redevelopment Plan 

Map"; (3) whether the land is "'list[ed] on the Protected Open 

Spaces System Map' or 'in the County Recreation and Open Space 

Inventory'"; and, (4) whether the land is "'identified as an 

acquired property on the Ocean County Natural Lands Trust website'" 

or was purchased with funds from the Ocean County Natural Lands 

Trust (the County Lands Trust).

The DEP argues, with respect to "standards" two and three, 

that the land's status in the referenced documents was not a new 

standard, as the documents were merely considered "as factors 

which supported Lacey's position that the ROW was not intended to 

be public open space." As to the fourth "standard," the DEP argues 

that "whether land is held by the New Jersey Natural Lands Trust 

is expressly a consideration in N.J.A.C. 7:7E-3.40(a)" and that 

 

to conservation of natural resources, public 

recreation, visual or physical public access 

or, wildlife protection or management. Public 

open space also includes, but is not limited 

to . . . lands held by the New Jersey Natural 

Lands Trust . . . and designated Natural Areas 

within DEP-owned and managed lands.

[N.J.A.C. 7:7E-3.40(a) now codified at 

N.J.A.C. 7:7-9.38.]
17 A-1088-14T2

it "addressed whether Natural Lands Trust funds were used to 

acquire the ROW or easement in response to public comments 

regarding the use of these funds."

Lacey argues the first "standard" was not a new standard 

because "a plain reading of the [public open space rule] indicates 

that purpose [for which the land is acquired] is already an 

enumerated standard." As to the remaining "standards," Lacey 

argues they were simply some of many factors considered in finding 

that the land was not public open space, and therefore not newly 

announced standards.

We do not discern from the record that the DEP engaged in 

rulemaking when it determined the subject property was not public 

open space. In its Summary Report, the DEP relied on its 

regulation for the definition and concluded the land was not public 

open space after finding it was purchased by Lacey "for the purpose 

of constructing the road project" and "was not purchased or 

dedicated for conservation, public recreation, public access, or 

wildlife protection." The DEP noted that "the site [wa]s not 

designated as a park or natural area" on the State Development and 

Redevelopment Plan Map, rather as a Suburban Planning Area. 

Moreover, the site was not listed as a protected open space on the 

county's Protected Open Spaces System Map, "not identified as open 

space in the County Recreation and Open Space Inventory," not 
18 A-1088-14T2

identified as having been acquired by the County Lands Trust, and 

was not purchased with any money from that trust. It also stated 

that the County "never envisioned a [fifty-foot] wide multi-use 

trail in Lacey," noting that the proposal was consistent with the 

County's 2007 Barnegat Branch Trail Conceptual Plan, which 

envisioned a seven-foot-wide trail for pedestrians and cyclists 

separated by a buffer from a thirty-eight-foot-wide roadway.

We view the appellants' argument that these findings amounted 

to the DEP imposing new standards in its determination of whether 

the ROW constituted public open space to be without merit. The 

first three considerations complained of were relevant 

considerations to the determination of whether the ROW was public 

open space, as they speak to whether the land was "used for or 

dedicated to conservation of natural resources, public recreation, 

visual or physical public access or, wildlife protection or 

management." N.J.A.C. 7:7E-3.40(a). As for the fourth 

consideration, the definition of public open space clearly 

contemplates the land's relationship to the land trusts, as it 

includes in its definition of public open space "lands held by the 

New Jersey Natural Lands Trust." Ibid.

The DEP's consideration of these four factors did not qualify 

as rulemaking. See Metromedia, supra, 97 N.J. at 331-32. There 

is no indication they are "intended to have wide coverage[,] 
19 A-1088-14T2

. . . be applied generally and uniformly," or apply only 

prospectively. Id. at 331. To the extent they could be considered 

a legal standard, they are "clearly and obviously inferable" from 

the public open space rule, see N.J.A.C. 7:7E-3.40(a). To the 

extent they could be considered as representing an administrative 

policy, there is nothing indicating they have never been considered 

before or are a "material and significant change from a clear, 

past [DEP] position" on what constitutes public open space. 

Metromedia, supra, 97 N.J. at 331. Finally, there is nothing to 

suggest these considerations "reflect[] a decision on 

administrative regulatory policy in the nature of the 

interpretation of law or general policy." Id. at 331-32.

We turn next to appellants argument that, in finding the 

proposal satisfied the secondary impacts rule, N.J.A.C. 7:7E-6.3,6

 

6 The rule regarding secondary impacts defines them as "the 

effects of additional development likely to be constructed as a 

result of the approval of a particular proposal." N.J.A.C. 7:7E6.3(a). The regulation also states:

Secondary impact analysis must include an 

analysis of the likely geographic extent of 

induced development, its relationship to the 

State Development and Redevelopment Plan, an 

assessment of likely induced point and nonpoint air and water quality impacts, and 

evaluation of the induced development in terms 

of all application Coastal Zone Management 

rules.

[N.J.A.C. 7:7E-6.3(b)(2) now codified at 

N.J.A.C. 7:7-14.3.]
20 A-1088-14T2

the DEP "announce[d] a new administrative standard": whether the 

land is "inclu[ded] in the State Development and Redevelopment 

Plan as a Suburban Planning Area." Respondents argue the land's 

designation as a Suburban Planning area was not a new standard,

but rather a factor considered in determining what secondary 

impacts the proposed roadway would have.

We again conclude the DEP did not engage in rulemaking in 

reaching its decision to issue the CAFRA permit to Lacey. In 

finding that the proposal complied with the secondary impacts 

rule, the DEP considered that the proposed road "traverses an area 

of Lacey Township that consists primarily of residential and 

commercial development," that "the site is designated a Suburban 

Planning Area according to the State Development and Redevelopment 

Plan," and that, according to information provided by Lacey, the 

surrounding area was already largely developed, such that "the 

proposed roadway will not induce further development." The DEP 

also considered that conditions imposed on the permit would prevent 

construction of "additional future points of ingress/egress to the 

new roadway" and that the proposal's inclusion of a trail for 

pedestrians and cyclists made the project "consistent with" the 

County's Barnegat Branch Trail Conceptual Plan.

The DEP's consideration of the land's "inclusion in the State 

Development and Redevelopment Plan as a Suburban Planning Area" 
21 A-1088-14T2

did not impose a new standard, thereby constituting rulemaking. 

First, the text of the secondary impacts rule requires the DEP to 

consider the property's "relationship to the State Development and 

Redevelopment Plan," N.J.A.C. 7:7E-6.3(b)(2), so it cannot be said 

that considering the site's designation as a Suburban Planning 

Area under that plan was a newly announced standard. Moreover, 

there is nothing to suggest the site's designation was 

determinative, or even the most significant factor in the DEP's 

finding, and the DEP expressly considered several other factors. 

Even if the DEP's consideration of the site's designation satisfied 

the first three or final Metromedia factors, the fact that the 

text of the secondary impacts rule required the DEP to consider 

its designation prevents the DEP's consideration from meeting the 

fourth and fifth criteria, and greatly outweighs the remaining 

factors. See Metromedia, supra, 97 N.J. at 331-32; In re Provision 

of Basic Generation Serv., supra, 205 N.J. at 350. The DEP imposed

no new standards for the public open space and secondary impacts 

rules, and thus did not engage in improper rulemaking.

Appellants next contend the DEP's decision to issue the permit 

was arbitrary and capricious, as it was an "[u]nexplained, summary 

reversal[]" of its 2006 and 2009 decisions to deny a similar permit 

and the findings underlying those denials, and was 

"unsubstantiated by and contrary to the evidence." They claim the 
22 A-1088-14T2

DEP failed to explain its bases for finding that the requirements 

it had previously found unsatisfied were fulfilled by the new 

proposal. Appellants specifically cite to the DEP's different 

determinations as to N.J.S.A. 13:19-10(e), (f), and (g), and the 

rules regarding public open space, N.J.A.C. 7:7E-3.40; location 

of linear development, N.J.A.C. 7:7E-6.1; basic location, N.J.A.C.

7:7E-6.2; secondary impacts, N.J.A.C. 7:7E-6.3; and buffers and 

compatibility of uses, N.J.A.C. 7:7E-8.13. We disagree.

We are satisfied the DEP properly exercised its right to 

consider and grant the revised 2009 application because it 

explained its reasons for its divergent opinions. "In the absence 

of some legislative restriction, administrative agencies have the 

inherent power to reopen or to modify and to rehear orders that 

have been entered." In re Van Orden, 383 N.J. Super. 410, 419 

(App. Div. 2006) (quoting Burlington Cty. Evergreen Park Mental 

Hosp. v. Cooper, 56 N.J. 579, 600 (1970)). However, in doing so, 

an agency is not "free to disregard completely issues that were 

fully and fairly resolved" in its earlier decision. Trap Rock 

Indus., Inc. v. Sagner, 133 N.J. Super. 99, 110 (App. Div. 1975), 

aff'd by an equally-divided court, 69 N.J. 599 (1976). "The power 

to reconsider must be exercised reasonably, with sound discretion 

reflecting due diligence, and for good and sufficient cause." 

Ibid. Thus, in determining whether to reconsider a prior 
23 A-1088-14T2

determination, an agency should "balance[e] . . . such factors as 

new developments or even new evidence of old developments, the 

advantages of repose, party reliance, the thoroughness of the 

earlier decision and the showing of illegality, fraud, mistake and 

the like." Ibid.

Here, although the DEP's 2014 decision was effectively a 

reconsideration of its 2006 and 2009 denials, the approved 

application was a "new application," N.J.S.A. 13:19-15; N.J.A.C.

7:7-4.9(b) (now codified at N.J.A.C. 7:7-26.9), that the DEP 

granted based upon its recognition of its own error, new 

information and revised plans. Nevertheless, because the DEP 

reached different conclusions in its findings as to Lacey's 

compliance with particular requirements and in its ultimate 

decision on the application, the DEP was required to express its 

reasons for the divergence, though it need not have been explained 

in those terms. See Pinelands Pres. All., supra, 436 N.J. Super.

at 532-33.

We conclude that the DEP satisfied its obligation to explain

its reasons for granting Lacey the CAFRA permit in 2014 when it 

had previously denied similar applications. Contrary to 

appellants' argument, the DEP was not required to expressly rebut 

its previous findings, but had to consider the most recent 

application anew and provide an adequate explanation for its 
24 A-1088-14T2

findings with respect to the specific application. Nevertheless, 

we address the various contentions as to each of the DEP's 

considerations serially and compare them to the DEP's earlier 

determinations.

In 2006, the DEP found the requirements of Section 10(e) were 

not satisfied because the project "would effectively block the 

County['s] . . . ability to convert the [ROW] to a passive/active 

car free recreational use, and would also result in loss of the 

values and functions the abandoned rail line has started to 

provide, such as a vegetative buffer and wildlife habitat." In 

2014, the DEP found the revised project "would not interfere with 

the natural functioning of plant, animal, fish and human life 

processes." The agency also determined that the project satisfied 

N.J.S.A. 13:19-10(e) because it would cause only "minimal feasible 

interference." Although the agency discussed its findings while 

addressing the rule on location of linear development, N.J.A.C.

7:7E-6.1 and the supporting evidence, its considerations applied 

equally to its determination of Lacey's compliance with N.J.S.A.

13:19-10(e). Although the project would require the clearing of 

vegetation along the ROW "[t]he project [was] designed to minimize 

the vegetation disturbance to maximize the buffering between the 

proposed road and the existing residential developments." It also 

found that the project would have "minimal feasible interference"
25 A-1088-14T2

with endangered or threatened wildlife and with SWRPA vegetation. 

It explained that these conditions were different from the prior 

application due to revisions to the earlier design that resulted 

in the elimination of a "segment of the road" and a change to its 

terminus.

Addressing N.J.S.A. 13:19-10(f), in 2006, the DEP found the 

project would not promote the public welfare, as it was "in close 

proximity to existing homes[,] . . . would not offer a car free 

pedestrian transportation link between the [five municipalities], 

and . . . serv[ed] only to promote higher vehicle miles as opposed 

to promoting recreational uses such as biking and walking." It 

also noted that the ROW had "developed into a naturally vegetated 

buffer to houses along the [ROW], a linear wildlife corridor and 

a car free public open space providing a human powered linkage 

amongst five municipalities." In 2014, the agency found it used 

an improper definition of public space, and applying the correct

definitions, found Lacey's revised proposal "promotes public 

health, safety and welfare by providing a safe alternative for 

local travel trips," and "would not endanger human life or 

property." Relying on revisions to the plans and new traffic 

studies, it found that the project would "provid[e] a safe

alternative for local travel trips," and by its earlier findings 
26 A-1088-14T2

that the project would allow for "enhanced emergency access" in 

the area and would "not impact private or public property." 

Turning to appellants' argument about the DEP's decision 

regarding N.J.S.A. 13:19-10(g),

7 they contend that the DEP failed 

to explain its basis for finding the proposal complied with the

provision after determining earlier that it did not and that the 

DEP's finding of compliance was the result of its reliance upon 

its incorrect determination that the ROW did not constitute public 

open space. We disagree.

In 2006, the DEP found the project did not satisfy the 

statutory criteria because it "would greatly reduce" the ROW's 

function as a "vegetative buffer area between the existing 

residential properties on the west and the commercial properties 

on the east." In 2014, the DEP found "[t]he project will not 

impact unique or irreplaceable land types, historical or 

archeological areas, or existing public scenic attributes." In 

so finding, it cited its determination that the site was not public 

open space, did not contain any historic properties, and the New 

Jersey Historic Preservation Office's view that "the project will 

have no effect on historic properties and . . . that there is no 

 

7 N.J.S.A. 13:19-10(g) states that a permit be issued only if 

the DEP finds the proposal "[w]ould result in minimal practicable 

degradation of unique or irreplaceable land types, historical or 

archeological areas, and existing public scenic attributes at the 

site and within the surrounding region." N.J.S.A. 13:19-10(g).
27 A-1088-14T2

need for further culture resource consideration within the project 

area." The DEP's finding that the project satisfied N.J.S.A.

13:19-10(g) was also supported by its earlier finding that the 

project would not cause "permanent or long-term loss of any unique 

or irreplaceable areas" and the evidence supporting that finding 

and by the information cited regarding the absence of any 

historical areas in the project area.

Next, appellants argue that the agency failed to adequately 

explain its current finding that the proposal complied with the 

public open space rule, N.J.A.C. 7:7E-3.40,8 when it found the 

 

8 The public open space rule in effect at the time of the 

permit decisions provided, in relevant part:

(a) Public open space constitutes land areas 

owned or maintained by State, Federal, county 

and municipal agencies or private groups . . 

. and used for or dedicated to conservation 

of natural resources, public recreation, 

visual or physical public access or, wildlife 

protection or management. Public open space 

also includes, but is not limited to . . . 

lands held by the New Jersey Natural Lands 

Trust . . . and designated Natural Areas 

within DEP-owned and managed lands.

. . . .

(c) Development that adversely affects 

existing public open space is discouraged.

(d) Development within existing public open 

space is conditionally acceptable, provided 

that the development is consistent with the 

character and purpose of public open space, 
28 A-1088-14T2

rule was not satisfied in 2006 and 2009. They further argue there 

is no support for the DEP's claim that Lacey purchased the ROW for 

the purpose of constructing a roadway. They contend that the 

area's "actual use" as recreational space for decades established 

the public use required by the rule. Moreover, appellants argue 

that the DEP's determination that the ROW was not public open 

space was not supported by the ROW's designation as a Suburban 

Planning Area, exclusion from the Protected Open Spaces System Map 

and the County Recreation and Open Space Inventory, or its 

independence from the County Lands Trust.

The DEP found in 2006 and 2009 that the ROW "ha[d] been 

serving as public open space since its abandonment in 1973 and 

[that use] was further enhanced by the removal of tracks and 

railroad ties," and that "[s]ite inspections . . . revealed use 

by local citizens as evidenced by tracks left by walkers/joggers 

and bike tires." It further noted that the County had 

"[recognized] the value of the [ROW] as public open space by 

passing [an ordinance] for development of a multi[-]use trail 

[fourteen] miles long," serving the five municipalities through 

which the ROW passed, and that using the full width of the ROW for 

 

as described by the park master plan when such 

a plan exists.

[N.J.A.C. 7:7E-3.40 now codified at N.J.A.C.

7:7-9.38.]
29 A-1088-14T2

the trail "has the potential of providing a safe car free 

environment to thousands of various users." While the DEP 

acknowledged that the proposed road would "divert some locally 

generated traffic away from Route 9," it found those benefits 

would not be "significant enough to improve [the] existing poor 

conditions on this section of Route 9." It concluded that, because 

it was "not able to find that the construction of the project as 

proposed [would] not result in an adverse impact to existing public 

open space," Lacey failed to demonstrate compliance with the public 

open space rule. 

In granting the permit in 2014, the DEP concluded that Lacey 

had demonstrated compliance with the rule, finding that the ROW 

did not constitute public open space and that the proposed road 

would "not adversely affect existing public open space" and would 

in fact expand public open space in Lacey. In so concluding, the 

DEP began by acknowledging that its initial decision on the 

application "found that the proposed roadway would result in the 

loss of open space," but that it was "reconsider[ing] its prior 

finding" based upon information that "was not provided and/or 

considered at the time of the original permit review." It 

explained that the land was purchased by Lacey "for the purpose 

of constructing the road project" and "was not purchased or 

dedicated for conservation, public recreation, public access, or 
30 A-1088-14T2

wildlife protection," and concluded the land "[t]herefore . . . 

is not considered public open space." The DEP further noted that 

the ROW was "not designated as a park or natural area" on the 

State Development and Redevelopment Plan Map, rather as a Suburban 

Planning Area, was not listed as a protected open space on the 

county's Protected Open Spaces System Map, was "not identified as 

open space in the County Recreation and Open Space Inventory," was 

not identified as having been acquired by the County Lands Trust, 

and was not purchased with any money from the trust. The agency 

further stated that the County "never envisioned a 50-foot wide 

multi-use trail in Lacey," noting that the proposal was consistent 

with the County's 2007 Barnegat Branch Trail Conceptual Plan, 

which envisioned a seven-foot-wide trail for pedestrians and 

cyclists separated by a buffer from a thirty-eight-foot-wide 

roadway. 

Significantly, there was no evidence that Lacey took any 

steps to support or encourage the public's use of the ROW as a 

pedestrian and bike trail beyond the alleged removal of railroad 

tracks and ties9 – for example, by pruning trees, removing debris, 

clearing vegetation, or otherwise maintaining the ROW. Compare

 

9 It is not clear whether Lacey undertook the removal. The 

removal would be necessary in any event for the construction of a 

roadway and the adjacent walking and bike paths.
31 A-1088-14T2

Cedar Cove v. Stanzione, 122 N.J. 202, 216-18 (1991) (finding 

appropriate application of the Green Acres Land Acquisition and 

Recreation Opportunities Act, N.J.S.A. 13:8A-35 to -55, where a 

municipality encouraged the public's use of property for 

recreational purposes and maintained property for that purpose). 

The DEP recognized, however, the public's unofficial use of the 

property for those purposes and considered Lacey's plan for the 

construction of a "pedestrian/bike trail" as one of the intended 

uses, to be consistent with the use made of the ROW by the public. 

Under these circumstances, the DEP correctly determined that the 

entire property was not "dedicated to" public use, or "used for" 

those purposes by the public with Lacey's facilitation or 

participation. What use the public made of the land could continue 

after the project.

Appellants also argue that the DEP failed to adequately 

explain why it found the proposal complied with the rule on 

location of linear development, N.J.A.C. 7:7E-6.1,10 when it found 

 

10 A "linear development" is "a development with the basic 

function of connecting two points, such as a road, drive, public 

walkway, [or] railroad." N.J.A.C. 7:7E-1.8 (now codified at 

N.J.A.C. 7:7-1.5). The rule on location of linear development in 

effect at the time of the permit decisions provides, in relevant 

part:

(a) A linear development, as defined at 

N.J.A.C. 7:7E-1.8, shall comply with the 

specific location rules to determine the most 

acceptable route, to the maximum extent 

practicable. If part of the proposed 
32 A-1088-14T2

the rule was not satisfied in 2006 and 2009. Specifically, they 

argue that because many of the proposal's attributes cited by the 

DEP in finding the rule was satisfied were not part of the earlier 

applications or relied upon in those applications' denials, they 

cannot justify the DEP's change in position. 

 

alignment of a linear development is found to 

be unacceptable under the specific location 

rules, that alignment (perhaps not the least 

possible distance) may nonetheless be 

acceptable, provided the following conditions 

are met:

1. There is no prudent or feasible 

alternative alignment which would have 

less impact on sensitive areas and marine 

fish or fisheries as defined at N.J.A.C.

7:7E-8.2;

2. There will be no permanent or longterm loss of unique or irreplaceable 

areas;

3. Appropriate measures will be used to 

mitigate adverse environmental impacts 

to the maximum extent feasible, such as 

restoration of disturbed vegetation, 

habitats, and land and water features; 

and

4. The alignment is located on or in 

existing transportation corridors and 

alignments, to the maximum extent 

practicable.

[N.J.A.C. 7:7E-6.1 now codified at N.J.A.C.

7:7-14.1.]
33 A-1088-14T2

In 2006 and 2009, the DEP found that the ROW had been serving 

as public open space, and found that the proposed construction 

"would effectively block the [County's] ability to convert the 

[ROW] to a passive/active car free recreational use and would also 

result in loss of the values and functions the abandoned rail line 

ha[d] started to provide, such as a vegetative buffer and wildlife 

habitat." As "the construction of the project would result in a 

permanent loss of a unique and irreplaceable area," the DEP found 

Lacey's proposals had failed to demonstrate compliance with this 

rule.11 

In the 2014 Summary Report, the DEP began by acknowledging 

that it was reconsidering its prior findings and concluded that 

the proposal was now in compliance with the rule on linear 

development. In doing so, it first noted that the revisions 

eliminated the Oak Bluff Avenue portion of the road, thereby 

"eliminat[ing] any disturbances to wetland transition areas as 

well as . . . [one] associated [SWRPA] disturbance." Though 

another SWRPA disturbance was "unavoidable," it would "be 

compensated for by the restoration of . . . a disturbed SWRPA at 

 

11 While appellants argue the DEP failed to explain why the 

proposal would no longer result in the "permanent or long-term 

loss of [a] unique or irreplaceable area[,]" that finding was 

largely unexplained in the earlier denials and, given that the 

proposal provided for a pedestrian/bike trail and did not affect 

any "unique wildlife habitat," it is unclear what basis there 

would be for finding such a loss.
34 A-1088-14T2

the same location." The DEP found that there was no possible 

"alternative alignments" due to existing developments, but that 

the proposed construction would "not result in any disturbance to 

wetlands or transition areas, or habitat for endangered or 

threatened species, or marine fish or fisheries" or to any "unique 

wildlife habitat[s]," and therefore would not result in any 

"permanent or long-term loss of unique or irreplaceable areas." 

After reciting the history of the Barnegat Branch Trail, the DEP 

again noted that the roadway would "not preclude the development 

of [a] pedestrian/bike trail as envisioned by the Barnegat Branch 

Trail Conceptual Plan." Finally, the DEP found that the project 

was "designed to minimize the vegetative disturbance to maximize 

the buffering between the proposed road and the existing 

residential developments" – with "a minimum buffer of [fifteen]

feet" – prohibited the future construction of additional points 

of "ingress and egress to the road," and was "located within an 

existing transportation corridor."

Appellants also contend that the DEP failed to adequately 

explain why it found the proposal complied with the basic location 

rule, N.J.A.C. 7:7E-6.2,12 which it found was not satisfied in 2006 

 

12 The basic location rule provides:

(a) A location may be acceptable for 

development under N.J.A.C. 7:7E-3, 4, 5, 5A, 

5B and 6, but the Department may reject or 
35 A-1088-14T2

and 2009. Specifically, they argue the DEP's finding of compliance 

is flawed because it failed to address "how approval of the 

proposed development is 'reasonably necessary'" to promote public 

health, safety, and welfare, the "previous bases for denial," or

why the traffic benefits "outweigh[] the previous public health 

and environmental justifications for denial."

The DEP found the rule was not satisfied in 2006 and 2009 

because the proposals failed to meet subsections (1) and (3). 

Specifically, it found the project did "not promote public welfare

[because it] serv[ed] only to promote higher vehicle miles as 

opposed to promoting recreational uses such as biking and walking."

In 2006, the DEP found the project did not "enhance the natural 

environment" because the ROW was "a natural area on the mend" and 

"[c]onstruction of the proposed road would eliminate most of any 

naturally re-established habitat." It provided no reason for its 

 

conditionally approve the proposed 

development of the location as reasonably 

necessary to:

1. Promote the public health, safety, and 

welfare;

2. Protect public and private property, 

wildlife and marine fisheries; and

3. Preserve, protect and enhance the 

natural environment.

[N.J.A.C. 7:7E-6.2 now codified at N.J.A.C.

7:7-14.2.]
36 A-1088-14T2

2009 finding that the proposal did not enhance the natural 

environment.

In finding the rule satisfied in 2014, the DEP again 

acknowledged that it was reconsidering its prior finding, based 

in part on Lacey's revised plans' elimination of the Oak Bluff 

Avenue portion included in the 2009 proposal. It found that the 

project would "promote[] public health, safety, and welfare" by 

alleviating traffic congestion on Route 9 and providing a "robust 

transportation network, which allows for flexibility and enhanced 

emergency access." After noting the proposal would "not impact 

private or public property" or "impact endangered or threatened 

species, wetlands, marine fisheries or special environments," the 

DEP found it fully complied with the basic location rule.

Appellants also argue that the DEP failed to adequately 

explain why it found the proposal complied with the secondary 

impacts rule, N.J.A.C. 7:7E-6.3,13 which it found was not satisfied 

 

13 The secondary impacts rule provides in pertinent part:

(a) Secondary impacts are the effects of 

additional development likely to be 

constructed as a result of the approval of a 

particular proposal. Secondary impacts can 

also include traffic increases, increased 

recreational and any other offsite impacts 

generated by onsite activities which affect 

the site and surrounding region.

(b) Coastal development that induces 

further development shall demonstrate, to the 
37 A-1088-14T2

in 2006 and 2009. They argue the DEP ignored its prior findings 

that the roadway would have a significant negative impact on the 

County's planned multi-use trail and existing public open space, 

and improperly relied on the claim that the Barnegat Branch Trail 

was designed with the roadway in mind, as the trail plan predated 

the first roadway proposal.

In 2006, the DEP concluded the secondary impacts rule was not 

satisfied because Lacey had failed to "demonstrate[] that the 

secondary impacts of the development will satisfy the [CZM] rules." 

 

maximum extent possible, that the secondary 

impacts of the development will satisfy the 

[CZM] rules. The [DEP] may restrict coastal 

development from connecting to an approved 

infrastructure in order to prevent adverse 

impacts to special areas and to protect and 

preserve coastal resources.

(1) The level of detail and areas 

of emphasis of the secondary impact 

analysis are expected to vary depending 

upon the type of development. . . . 

(2) Secondary impact analysis must 

include an analysis of the likely 

geographic extent of induced 

development, its relationship to the 

State Development and Redevelopment 

Plan, as assessment of likely induced 

point and non-point air and water quality 

impacts, and evaluation of the induced 

development in terms of all applicable 

[CZM] rules.

[N.J.A.C. 7:7E-6.3 now codified at N.J.A.C.

7:7-14.3.]
38 A-1088-14T2

Its conclusion was based on Lacey's failure to provide analyses 

of "what intersections would be impacted by" construction of the 

road, the capacity of "any receiving roadway," and which areas of 

Lacey were expected to experience increased "development pressure" 

as a result of the new road. The DEP noted that, while the project 

was proposed to help alleviate traffic on Route 9, "[l]ong term 

traffic management of Route 9" would still require implementation 

of "a Comprehensive Route 9 Corridor Plan." The DEP also relied 

upon the "significant secondary impact on Ocean County's plan to 

construct a multi-use trail," the lack of support for the project 

from the adjacent towns, and the fact that the "construction as 

proposed would effectively negate the significant public monies 

expended by Ocean County."

The DEP expressed similar concerns in 2009, finding 

noncompliance based on the "increased roadway capacity" that would 

result from the new road and that capacity's "potential to promote 

additional growth areas within the Township." It also once again 

relied upon the lack of a comprehensive corridor plan, the impact 

on the County's planned multi-use trail, the neighboring towns' 

lack of support, and the significant funds already spent by the 

County.14

 

14 It did not, as appellants assert, make any finding that the 

construction would have an adverse impact on public open space.
39 A-1088-14T2

In finding that the newest proposal complied with the 

secondary impacts rule, the DEP began by noting that it was 

reconsidering its prior decisions. It first explained that the 

proposed road "traverses an area of [Lacey] that consists primarily 

of residential and commercial development," and that "the site is 

designated a Suburban Planning Area according to the State 

Development and Redevelopment Plan." It then detailed the 

composition of the "Secondary Impact Review area," which, 

according to information provided by Lacey, "is already 84.57% 

develop[ed] with residential and commercial properties" and, "[o]f 

the remaining 15.43% of undeveloped properties, [almost all] are 

publicly owned lands . . . [that] will not be developed and the 

[rest are] undeveloped privately owned land [that] is already 

zoned for approvable residential development." In light of this 

information, the DEP concluded that "the proposed roadway will not 

induce further development." Moreover, it noted, one of the permit 

conditions prohibited building "additional curb cuts," thereby 

"prohibiting any future points of ingress/egress to the new 

roadway." Finally, the DEP found that "the pedestrian/bikeway 

component of the Railroad Avenue project is consistent with the 

planned Barnegat Branch Trail," noting that "the Ocean County 

Planning Department designed the Barnegat Branch Trail with 

Railroad Avenue in mind and ha[d] stated on [its] website that the 
40 A-1088-14T2

roadway will not preclude the development of a pedestrian/bike 

trail as envisioned by the Barnegat Branch Trail Conceptual Plan." 

As with the other rules, despite appellants' argument to the 

contrary, the DEP was not required to "rebut [its] previous 

findings with evidence from the record." Nevertheless, Lacey 

supported its application with data demonstrating that the 

proposal would not induce further development because the area 

surrounding the proposed roadway was already almost eighty-five 

percent developed, and the remaining properties were either public 

land protected from development or private land for which 

development was already authorized. The DEP relied upon this 

unrebutted data and its finding that the proposal would not impact 

the County's plan for the Barnegat Branch Trail, as it provided

for construction of that trail.

Appellants also argue that the DEP failed to adequately 

explain why it found the proposal complied with the buffers and 

compatibility of uses rule, N.J.A.C. 7:7E-8.13,15 which it found 

 

15 The buffers and compatibility of uses rule in effect at 

the time of the DEP's decisions provided, in relevant part:

(a) Buffers are natural or man-made 

areas, structures, or objects that serve to 

separate distinct uses or areas. 

Compatibility of uses is the ability for uses 

to exist together without aesthetic or 

functional conflicts.
41 A-1088-14T2

was not satisfied in 2006 and 2009. They argue the DEP's finding 

that the fifteen-foot buffer between the roadway and nearby 

residences was sufficient ignored its previous findings that the 

full fifty-foot width of the ROW was a buffer "worthy of 

protection." 

 

(b) Development shall be compatible with 

adjacent land uses to the maximum extent 

practicable.

(1) Development that is likely to 

adversely affect adjacent areas, 

particularly Special Areas N.J.A.C.

7:7E-3, or residential or recreation 

uses, is prohibited unless the impact is 

mitigated by an adequate buffer. The 

purpose, width and type of the required 

buffer shall vary depending upon the type 

and degree of impact and the type of 

adjacent area to be affected by the 

development, and shall be determined on 

a case by case basis.

. . . . 

(3) The following apply to buffer 

treatment:

(i) All buffer areas shall be 

planted with appropriate vegetative 

species, either through primary planting 

or supplemental planting. This 

landscaping shall include use of mixed, 

native vegetative species, with 

sufficient size and density to create a 

solid visual screen within five years 

from the date of planting.

[N.J.A.C. 7:7E-8.13 now codified at N.J.A.C.

7:7-16.11.]
42 A-1088-14T2

In 2006 and 2009, the DEP based its conclusion that the rule 

was unsatisfied on its finding that the proposals "would greatly 

reduce th[e] vegetative buffer" provided by the ROW "between the 

existing residential properties on the west and the commercial 

properties on the east." 

In 2014, the DEP found that the pedestrian and bike trail, 

together with the buffers on either side of it, would provide "a 

minimum buffer of [fifteen] feet between the proposed road and any 

residential property boundary," with an even wider buffer along 

the large majority of road. With this buffer in place, the DEP 

found the project was "compatible with the existing adjacent land 

uses to the maximum extent practicable" and therefore satisfied 

the rule on buffers and compatibility of uses. 

Notably, the DEP's 2006 decision did not, as appellants 

allege, find "that the 2005 road proposal would interfere with" 

the planned Barnegat Branch Trail. Moreover, the DEP's earlier 

conclusion that the rule was not satisfied was not based upon any 

finding that the proposed projects were not "compatible with 

adjacent land uses." N.J.A.C. 7:7E-8.13(b). Rather, the earlier 

denials found the rule was not satisfied because the proposals 

would eliminate the fifty-foot buffer provided by the ROW, findings 

which do not address what the rule considers and do not, without 

more, support a finding that the rule was unsatisfied. The DEP's 
43 A-1088-14T2

conclusion was supported by its finding that the fifteen-foot 

buffer rendered the project compatible with adjacent land uses, 

as required by the rule.

In conclusion, we are satisfied that, despite the earlier 

denials, the DEP's Summary Report provided more than adequate 

reasons for issuing Lacey the CAFRA permit and that the agency 

properly exercised its authority when it granted the permit.

Affirmed.