NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1752-12T3

HACKENSACK RIVERKEEPER,

INC. and NY/NJ BAYKEEPER,

Appellants,

v.

NEW JERSEY DEPARTMENT OF

ENVIRONMENTAL PROTECTION,

Respondent.

_______________________________________________

Argued May 19, 2015 – Decided

Before Judges Messano, Ostrer and Tassini.

On appeal from the adoption of N.J.A.C. 7:7 

by the Department of Environmental 

Protection.

Christopher Len argued the cause for 

appellants (Pringle, Quinn, Anzano, P.C., 

attorneys; Mr. Len and Edward Bonanno, on 

the brief; Andrea Leshak, on the 

supplemental brief).

Kristina Miles, Deputy Attorney General, 

argued the cause for respondent (John J. 

Hoffman, Acting Attorney General, attorney; 

Melissa H. Raksa, Assistant Attorney 

General, of counsel; Ms. Miles, on the 

briefs).

Litwin & Provence, L.L.C., attorneys for 

amicus curiae American Littoral Society, 

Inc. (Gordon N. Litwin and Andrew J. 

Provence, on the brief).

December 22, 2015

APPROVED FOR PUBLICATION

December 22, 2015

APPELLATE DIVISION
2 A-1752-12T3

The opinion of the court was delivered by

MESSANO, P.J.A.D.

In Borough of Avalon v. New Jersey Department of 

Environmental Protection, 403 N.J. Super. 590, 595 (App. Div. 

2008), certif. denied, 199 N.J. 133 (2009) (Avalon), we 

considered a challenge to certain regulations adopted in 2007 by 

the New Jersey Department of Environmental Protection (DEP), 

"referred to as the Public Access Rules, which substantially 

expanded [DEP's] authority over public access to beaches and 

other tidal waterways." We found the regulations were "not 

statutorily authorized and therefore invalid[]." Id. at 597. 

In response, DEP embarked upon another round of rulemaking, 

culminating in the 2012 adoption of new Public Access Rules (the 

Rules). 44 N.J.R. 2559(a) (Nov. 5, 2012). 

Hackensack Riverkeeper, Inc., and NY/NJ Baykeeper, two nonprofit organizations (collectively, appellants), quickly filed 

this appeal. We granted a motion by the American Littoral 

Society, Inc. (ALS), to appear as amicus curiae. The three 

organizations' professed missions include the conservation of 

coastal areas and the promotion of public and community access 

thereto and, in the case of appellants, the waters, watersheds 

and wetlands of this State. 
3 A-1752-12T3

Appellants argue that DEP has again arrogated to itself the 

management of lands held in public trust, which power is 

reserved to the Legislature and has not been delegated to DEP. 

They also argue the Rules are preempted by, or improperly 

infringe upon, powers reserved to the State's municipalities. 

Appellants further contend that the Rules are not authorized by 

the Coastal Area Facility Review Act (CAFRA), N.J.S.A. 13:19-1 

to -21, or any other statute.

DEP contends that the Rules are authorized pursuant to the 

public trust doctrine, and the agency has been implicitly 

recognized as the proper governmental authority to manage lands 

held in public trust. Alternatively, DEP contends that CAFRA 

authorizes promulgation of the Rules. The agency also asserts 

that the Rules encourage cooperation with municipalities that is 

wholly consonant with the Municipal Land Use Law (the MLUL), 

N.J.S.A. 40:55D-1 to -163. ALS similarly argues that the 

Legislature has vested DEP with the authority to adopt 

regulations necessary to promote and protect the waterfront.

Since the appeal was argued, DEP again revised the Rules. 

See 47 N.J.R. 1392(a) (July 6, 2015). We asked appellants and 

DEP to address these revised Rules and their impact, if any, on 

the issues initially raised. Both sides assert that the 
4 A-1752-12T3

revisions merely re-numbered the Rules and effectuated no 

substantive changes. 

We have considered the arguments in light of the record and 

applicable legal principles. Some limited provisions of the 

Rules could fall "within the fair contemplation of the 

delegation of [an] enabling statute," CAFRA. In re N.J.A.C. 

7:1B-1.1 et seq., 431 N.J. Super. 100, 116 (App. Div.) (citation 

omitted), certif. denied, 216 N.J. 8 (2013). However, the Rules 

apply to many municipalities that are not subject to CAFRA, 

because that statute only applies to certain municipalities. 

Moreover, the Rules far exceed the Legislature's limited 

delegation of authority to DEP under CAFRA to regulate "land 

uses in the coastal zone." Avalon, supra, 403 N.J. Super. at 

601. We also agree with appellants that the Rules are not 

authorized by any other legislative enactment or by the 

Legislature's delegation of powers to DEP pursuant to the public 

trust doctrine. We are constrained, therefore, to invalidate 

the Rules. 

I.

In their latest iteration, the Rules amend DEP's Coastal 

Zone Management (CZM) regulations, N.J.A.C. 7:7. The CZM 

regulations "establish[] the rules . . . regarding the use and 

development of coastal resources[,]" and "are used in reviewing 
5 A-1752-12T3

applications for coastal permits under [CAFRA]" and other 

statutes. N.J.A.C. 7:7-1.1(a) (emphasis added). The CZM 

regulations list "eight broad coastal goals," including 

"[m]eaningful public access to and use of tidal waterways and 

their shores." N.J.A.C. 7:7-1.1(c). The CZM regulations apply 

to all DEP "actions and decisions," N.J.A.C. 7:7-1.2(a), 

regarding the "coastal zone," defined as including not only 

geographic areas subject to CAFRA, but also all other coastal 

waters and tidal wetlands. N.J.A.C. 7:7-1.2(b).

In particular, appellants' challenge focuses on N.J.A.C.

7:7-9.48, the public trust rights rule, and N.J.A.C. 7:7-16.9, 

the public access rule (before DEP's July 2015 re-codification, 

N.J.A.C. 7:7E-3.50 and N.J.A.C. 7:7E-8.11, respectively).

1 

Pursuant to N.J.A.C. 7:7-9.48(b), public access to "lands and 

waters subject to public trust rights" must be provided in 

accordance with N.J.A.C. 7:7-16.9, and any development "that 

does not comply with N.J.A.C. 7:7-16.9 . . . is discouraged 

. . . ." N.J.A.C. 7:7-16.9, in turn, encourages, but does not 

require, municipalities to create Municipal Public Access Plans 

(MPAPs) that, among other things, identify current public access 

points and corresponding signage, incorporate parking and other 

 

1 See 46 N.J.R. 1051(a), 1053-57 (June 2, 2014) (DEP's table 

cross-referencing the Rules as adopted in 2012 with the changes 

proposed in 2014 and adopted in 2015).
6 A-1752-12T3

amenities to the maximum extent practicable, and plan for future 

public access. N.J.A.C. 7:7-16.9(c)-(e). 

DEP explained in 2012 that the new regulations

encourage municipalities to take an active 

role in designing and ensuring public access 

to beaches and tidal waters in ways that 

will work best for their respective 

circumstances. . . . Under the rules in 

place prior to this adoption, the Department 

evaluated public access only when an 

applicant applied to the Department for a 

coastal permit and was required to provide 

public access under those rules. The 

adopted rules enhance public access 

opportunities by encouraging municipalities 

to work with the Department to develop plans 

to help ensure that the public's access 

needs are met in a comprehensive and 

systematic approach. The Department will 

work with the municipalities on development 

of their access plan, and the plan will be 

required to meet the goals of the public 

access rules.

[44 N.J.R. at 2602 (response to comment 234) 

(emphasis added).]

More than two hundred municipalities are eligible to submit 

MPAPs.

2

A municipality, as part of its MPAP implementation 

strategy, may create its own dedicated Public Access Fund, to 

which developers contribute in lieu of providing public access 

onsite. N.J.A.C. 7:7-16.9(f). The Rules provide formulae 

 

2 See http://www.state.nj.us/dep/cmp/access/mpamunis.htm (list 

of eligible municipalities) (last visited Dec. 1, 2015).
7 A-1752-12T3

required to be used for the calculation of appropriate 

contributions based upon the particular development. N.J.A.C.

7:7-16.9(f)(1) and (2). 

After public notice and comment, and DEP review and 

approval, a municipality must incorporate its MPAP into its 

master plan, see N.J.S.A. 40:55D-5 and -28. N.J.A.C. 7:7-

16.9(j). At five-year intervals thereafter, a municipality must 

provide DEP with a report detailing the status of all projects, 

an accounting of its dedicated Public Access Fund, and a list of 

problems and proposed remedies to assure compliance with the 

MPAP. N.J.A.C. 7:7-16.9(j)(4). Any changes to the MPAP or to 

the terms of a contribution made to the Public Access Fund must 

be submitted first to DEP for "review and approval." N.J.A.C.

7:7-16.9(l). In addition, if the municipality fails to 

implement or comply with its approved MPAP, DEP must "revoke its 

approval." N.J.A.C. 7:7-16.9(m).

Once an MPAP is adopted as part of a municipality's master 

plan, "public access required to satisfy the conditions of a 

coastal permit for development in the municipality for permit 

applications filed with [DEP] . . . shall be provided in 

accordance with the [MPAP]." N.J.A.C. 7:7-16.9(k). However, if 

a municipality does not adopt an MPAP, "public access along and 

use of the beach and the shores shall be provided" in accordance 
8 A-1752-12T3

with the regulations. N.J.A.C. 7:7-16.9(n). Depending upon the 

nature and size of any particular commercial or residential 

development, on-site access must be provided. N.J.A.C. 7:7-

16.9(n)(1) and (2). In addition, a municipality must have an 

approved MPAP before DEP will approve a general permit for beach 

and dune maintenance. N.J.A.C. 7:7-6.2(b). 

During argument, we asked the Deputy Attorney General 

representing DEP whether municipalities that did not adopt an 

MPAP could suffer other negative consequences, specifically 

eligibility for Green Acres funding. See 44 N.J.R. at 2630-32 

(comments and responses 464-83). We were assured that they 

would not. However, we note that DEP's current Green Acres

regulations provide:

(a) The following are ineligible to 

apply for Green Acres funding:

. . . . 

4. Any local government unit that does 

not currently provide, or have active plans 

to provide, public access to the waterfront

and to tidally-flowed and dry sand areas 

subject to the Public Trust Doctrine, 

consistent with the requirements of the 

Coastal Zone Management Rules at N.J.A.C. 

7:7E–8.11 and governing law.

[N.J.A.C. 7:36-3.2(a)(4) (emphasis added).]

This "carrot-and-stick" approach to secure submission of 

MPAP applications for approval and municipal compliance 
9 A-1752-12T3

thereafter was publicly acknowledged by DEP. When the Rules 

were first issued in 2012, the agency declared that there were 

"adequate incentives for municipalities to want to develop and 

seek Department approval of [MPAPs]." 44 N.J.R. at 2631 

(response to comments 465-68). DEP explained that it was 

not penalizing municipalities which do not 

have a [MPAP]. These municipalities will 

still be able to conduct beach and dune 

maintenance pursuant to an individual permit 

if they choose to not prepare a Municipal 

Public Access Plan. The Department believes 

that this differential treatment is 

appropriate to encourage the public access 

benefits that can be achieved through the 

cooperative planning effort reflected by a 

Department-approved [MPAP].

[44 N.J.R. at 2606 (response to comment 

261).]

DEP's Commissioner called the consequences for municipalities 

not participating in the MPAP scheme "'the club if we need it.'"3

II.

We set some well-known guideposts that inform our review. 

"Judicial review of agency regulations begins with a presumption 

that the regulations are both valid and reasonable[,]" and "the 

party challenging a regulation has the burden of proving that 

 

3 Jacqueline L. Urgo, N.J. sets in motion letting local decisions 

rule on beach access, The Philadelphia Inquirer (Apr. 5, 2011), 

http://articles.philly.com/2011-04-05/news/29384729_1_beachaccess-public-access-long-beach-township. The document is

contained in DEP's appendix.
10 A-1752-12T3

the agency's action was arbitrary, capricious or unreasonable." 

N.J. Ass'n of Sch. Adm'rs v. Schundler, 211 N.J. 535, 548 (2012) 

(citations and internal quotation marks omitted). "[W]e must 

give great deference to an agency's interpretation and 

implementation of its rules enforcing the statutes for which it 

is responsible." In re Freshwater Wetlands Prot. Act Rules, 180 

N.J. 478, 488-89 (2004) (citing In re Distrib'n of Liquid 

Assets, 168 N.J. 1, 10-11 (2001)). 

Accordingly, a challenger must "demonstrat[e] 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 enabling act and 

other statutory law that cannot be harmonized." N.J. Ass'n of 

Sch. Adm'rs v. Cerf, 428 N.J. Super. 588, 596 (App. Div. 2012), 

certif. denied, 213 N.J. 536 (2013). "While findings of ultra 

vires actions are disfavored, [o]ur role is to enforce the will 

of the Legislature because [s]tatutes cannot be amended by 

administrative fiat." In re Agric., Aquacultural, &

Horticultural Water Usage Certification Rules, 410 N.J. Super.

209, 223 (App. Div. 2009) (alterations in original) (citations 

and internal quotation marks omitted). "[I]f the regulation is 
11 A-1752-12T3

plainly at odds with the statute, we must set it aside." In re 

Freshwater Wetlands, supra, 180 N.J. at 489. 

With these standards in mind, we consider the specific 

arguments raised on appeal.

A.

Appellants argue that, by invoking the public trust 

doctrine, DEP has again arrogated to itself the regulation of 

public access to the State's waterways and shorelines. They 

contend that unless we are prepared to contradict our decision 

in Avalon, the result must be the same, and the Rules must be 

stricken. DEP argues that Avalon has limited application to 

this case because there we only considered a specific as-applied 

challenge to two particular provisions of the 2007 regulations 

that are no longer contained in the Rules. However, we agree 

with appellants that, absent express authorization from the 

Legislature, the public trust doctrine alone cannot justify 

DEP's adoption of the Rules.

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.'" City of Long 

Branch v. Jui Yung Liu, 203 N.J. 464, 474 (2010) (quoting 

Matthews v. Bay Head Improvement Ass'n, 95 N.J. 306, 316-17, 

cert. denied, 469 U.S. 821, 105 S. Ct. 93, 83 L. Ed. 2d 39
12 A-1752-12T3

(1984)). Accord Raleigh Ave. Beach Ass'n v. Atlantis Beach 

Club, Inc., 185 N.J. 40, 51 (2005); Borough of Neptune City v. 

Borough of Avon-By-The-Sea, 61 N.J. 296, 304-05 (1972). The 

doctrine's principles appear in English common law, and its 

roots can be traced back to Roman civil law. Raleigh Ave., 

supra, 185 N.J. at 51-52; State v. Vogt, 341 N.J. Super. 407, 

422 (App. Div.), certif. denied, 170 N.J. 206 (2001). As a 

result, a "'State can no more abdicate its trust over property 

in which the whole people are interested . . . than it can 

abdicate its police powers.'" Matthews, supra, 95 N.J. at 319 

(quoting Ill. Cent. R.R. v. Illinois, 146 U.S. 387, 453, 13 S. 

Ct. 110, 118, 36 L. Ed. 1018, 1043 (1892)); E. Cape May Assocs. 

v. State, Dep't of Envtl. Prot., 343 N.J. Super. 110, 142 (App. 

Div.) ("the sovereign never waives its right to regulate the use 

of public trust property"), certif. denied, 170 N.J. 211 (2001).

As the Court has reiterated: 

Like many common-law principles, the 

public trust doctrine has adapted to the 

changing conditions and needs of the public 

it was created to benefit. Today, public 

rights in tidal lands are not limited to the 

ancient prerogatives of navigation and 

fishing, but extend as well to recreational 

uses, including bathing, swimming and other 

shore activities.

[Long Branch, supra, 203 N.J. at 475 

(citations and internal quotation marks 

omitted).]
13 A-1752-12T3

"Whether natural, or man-made, the beach is an adjunct to ocean 

swimming and bathing and is subject to the Public Trust 

Doctrine." Van Ness v. Borough of Deal, 78 N.J. 174, 180 

(1978). Therefore, "reasonable access to the sea is integral 

to the public trust doctrine[, because] without access the 

doctrine has no meaning." Raleigh Ave., supra, 185 N.J. at 53 

(citation omitted). The Court has held that, pursuant to the

public trust doctrine, the public's right to access the beach 

includes "access to and use of privately-owned dry sand areas as 

reasonably necessary." Matthews, supra, 95 N.J. at 326 

(emphasis added). 

In Avalon, we considered a municipality's challenge to two 

provisions of the 2007 rules that required public access to 

municipal beaches "at all times," and conditioned eligibility 

for appropriations from the "'Shore Protection Fund,'" N.J.S.A.

13:19-16.1, upon a municipality's agreement to provide 

additional parking spaces and restrooms, and acquire the land 

for these facilities by condemnation if necessary. Avalon, 

supra, 403 N.J. Super. at 595. Regarding the requirement of 

public access at all times, we noted that the Legislature had 

specifically granted municipalities the authority to exercise 

their police powers over publicly-owned lands. Id. at 598 

(citing N.J.S.A. 40:48-2). We further observed that the 
14 A-1752-12T3

Legislature had "recognized that seashore municipalities have 

'exclusive control' over municipally-owned beaches." Id. at 599 

(citing N.J.S.A. 40:61-22.20).4 We held:

In contrast to the express legislative 

delegation of broad general powers to 

municipalities to exercise exclusive control 

over municipally-owned beaches, the 

Legislature has not delegated any authority 

to the DEP to preempt or supervise a 

municipality's operation of its beaches. 

Moreover, we perceive no basis for implying 

such authority. It is the municipality, not 

the DEP, that owns and operates and 

 

4 N.J.S.A. 40:61-22.20(a) (emphasis added), entitled "Municipal 

control over beaches, etc.; fees," provides in pertinent part:

The governing body of any municipality 

bordering on the Atlantic Ocean, tidal water 

bays or rivers which owns . . . lands 

bordering on the ocean, tidal water bays or 

rivers, or easement rights therein, for a 

place of resort for public health and 

recreation and for other public purposes 

shall have the exclusive control, government 

and care thereof and of any boardwalk, 

bathing and recreational facilities, 

safeguards and equipment, . . . and may 

. . . make and enforce rules and regulations 

for the government and policing of such 

lands, boardwalk, bathing facilities, 

safeguards and equipment; provided, that 

such power of control, government, care and 

policing shall not be construed in any 

manner to exclude or interfere with the 

operation of any State law or authority with 

respect to such lands, property and 

facilities. 

DEP has not asserted that the exercise of municipal authority 

under this statue is pre-empted by other legislation or by 

application of the public trust doctrine.
15 A-1752-12T3

therefore bears responsibility for the 

management of its beaches.

[Ibid.]

Distinguishing "public trust doctrine cases the DEP relie[d] 

upon," we concluded "the . . . doctrine does not provide any 

basis for a DEP rule that preempts the statutory authority of 

municipalities to regulate municipally-owned beaches, including 

deciding when they shall be open to the public." Id. at 600. 

We also rejected DEP's assertion that the public trust 

doctrine justified adoption of the second regulation at issue. 

Id. at 605. 

The essential thrust of the cases dealing 

with application of the public trust 

doctrine to municipally-owned beaches has 

been that a municipality must provide nonresidents with the same access to its 

beaches as its own residents . . . .

However, the Court has never held that 

the public trust doctrine requires a 

municipality that owns and operates a beach 

to provide a specified number of parking 

spaces and restrooms in proximity to the 

beach or that the DEP has the authority to 

impose such requirements upon a 

municipality. Therefore, we conclude that 

the public trust doctrine does not provide 

authorization for the DEP rules imposing 

these requirements.

[Ibid.] 

In this case, DEP correctly notes that the Rules do not 

compel municipalities to do anything, but rather encourage 
16 A-1752-12T3

affected municipalities to cooperate with DEP in planning for 

access through adoption of an MPAP. DEP argues that the public 

trust doctrine, as interpreted by the Court, authorizes the 

agency to act as steward of the State's coastal resources, 

including assuring public access. See, e.g., N.J.A.C. 7:7-

16.9(aa) (describing DEP as "the State entity managing public 

access along the shore," with "an obligation to ensure" access 

under the public trust doctrine). However, consistent with our 

assessment in Avalon, the cases DEP relies upon do not persuade 

us that the public trust doctrine can serve as the fount of the 

agency's regulatory power.

For example, DEP claims that in Lusardi v. Curtis Point 

Property Owners Ass'n, 86 N.J. 217 (1981), the Court recognized 

the agency "was one of three State entities charged with 

promoting the State's interest in public access under the 

[p]ublic [t]rust [d]octrine." DEP further asserts that Lusardi

and Matthews demonstrate that "even where the State as a whole 

holds title to public trust lands, the ability to regulate it 

has been passed to [] DEP." We disagree.

The Court in Lusardi considered whether a municipal zoning 

ordinance that prohibited recreational use of privately-owned 

oceanfront property was "an unreasonable exercise of the zoning 

power in light of judicial, legislative and executive 
17 A-1752-12T3

pronouncements establishing a statewide policy of encouraging 

recreational use of dry sand beach areas." Lusardi, supra, 86 

N.J. at 222. The Court found expressions of this "statewide 

policy" in the public trust doctrine, legislation and the 

coastal development policies promulgated by DEP. Id. at 227-28. 

However, the Court made clear that "the public trust doctrine 

[wa]s not directly applicable to th[e] case, which concern[ed] 

the exercise of zoning power." Id. at 228. To the extent the 

Court found DEP's regulations were "the most detailed expression 

of this State's policies concerning the appropriate uses of 

shoreline resources," it did so with reference to specific 

statutory powers under CAFRA. Id. at 229.

Similarly, DEP's reliance upon Matthews is misplaced. In 

Matthews, supra, 95 N.J. at 326, the Court relied exclusively 

upon the public trust doctrine to conclude that "private 

landowners may not in all instances prevent the public from 

exercising its rights under the public trust doctrine[,]" and 

"[t]he public must be afforded reasonable access to the 

foreshore as well as a suitable area for recreation on the dry 

sand." The Court's only mention of DEP's role was in a 

footnote, recognizing that pursuant to CAFRA, the agency's 

regulations supported unrestricted access to beaches. Id. at 

325 n.8. 
18 A-1752-12T3

Lastly, we reject DEP's claim that Raleigh Avenue

recognized the agency's independent regulatory authority 

pursuant to the public trust doctrine. Without reciting the 

tangled facts of the case, it suffices to say that the Court 

rejected the property owner's claim that DEP "lack[ed] 

jurisdiction to approve any fees charged" to the public for 

services associated with the beach. Raleigh Ave., supra, 185 

N.J. at 60. However, the Court made clear that it was "the 

boardwalk pathway over the dunes to the . . . beach [which] 

qualifies as a development, thereby triggering the DEP's CAFRA 

jurisdiction over related use of the beach and ocean." Id. at 

61.

The Legislature spoke clearly regarding municipally-owned 

beaches when it enacted N.J.S.A. 40:61-22.20(a), and 

municipally-owned property in general, when it enacted N.J.S.A.

40:48-1 (providing that "every municipality" may adopt and 

enforce ordinances to "[m]anage, regulate and control the . . . 

property . . . of the municipality"). Case law that has 

developed regarding the public trust doctrine, including those 

which have expanded its reach to privately-owned property, do 

not support DEP's contention that the Legislature implicitly 

delegated regulatory powers to the agency. DEP was not 
19 A-1752-12T3

authorized to promulgate the Rules under the public trust 

doctrine.

B.

Appellants next argue that DEP lacks the authority to 

promulgate the Rules pursuant to CAFRA or any other statute, 

and, as already noted, that the Rules conflict with the 

Legislature's specific grant of authority to municipalities to 

regulate municipally-owned land. DEP counters by arguing the 

Rules were authorized pursuant to CAFRA.5 The agency also argues 

that the Rules do not conflict with the MLUL.

 

5 We note, however, that DEP's only stated "rationale" for 

adoption of the Rules was the public trust doctrine. See

N.J.A.C. 7:7-9.48(c); N.J.A.C. 7:7-16.9(aa). Additionally, at 

two points in its brief, in single sentences without any legal 

argument, DEP cites N.J.S.A. 13:1B-3(e) and N.J.S.A. 13:1D-9 as 

providing the statutory authority for promulgating the Rules. 

We have refused to consider such "cursory discussion[s]" of 

legal arguments not properly raised in separate point headings. 

Mid-Atlantic Solar Energy Indus. Ass'n v. Christie, 418 N.J.

Super. 499, 508 (App. Div.), certif. denied, 207 N.J. 190 

(2011). In any event, neither cited statute provides support 

for DEP's argument. N.J.S.A. 13:1B-3(e) simply provides that as 

part of his powers, the Commissioner may "[a]dopt, issue and 

promulgate . . . such rules and regulations as may be authorized 

by law[.]" N.J.S.A. 13:1D-9 vests DEP with broad powers

primarily linked to general functions of conservation, 

education, environmental and ecological protection and pollution 

control. There is no mention of DEP's authority to plan for or 

implement public access to coastal areas. 

 
20 A-1752-12T3

(1)

Some additional standards govern our consideration of 

whether the Rules are authorized by CAFRA. "[W]hen a regulation 

is challenged as contrary to the agency's statutory authority[,] 

. . . the issue turns on statutory construction." In re 

Adoption of N.J.A.C. 7:15-5.24(b), 420 N.J. Super. 552, 564 

(App. Div.) (citing N.J. State League of Municipalities v. Dep't 

of Cmty. Affairs, 158 N.J. 211, 222 (1999)), certif. denied, 208 

N.J. 597 (2011). "[O]ur task in statutory interpretation is to 

discern and effectuate the Legislature's intent." N.J. Dep't of 

Envtl. Prot. v. Huber, 213 N.J. 338, 365 (2013) (citing Hubner 

v. Spring Valley Equestrian Ctr., 203 N.J. 184, 194 (2010)).

We begin by looking at the statute's "plain language," read 

"sensibly [and] in the context of the overall scheme in which 

the Legislature intended the provision to operate." Ibid.

(citations omitted). "[A]n agency's legislative authority can 

be implied by the statute or by 'the entire legislative scheme 

of which it is a part.'" In re Adoption of N.J.A.C. 7:15-

5.24(b), supra, 420 N.J. Super. at 564 (quoting In re Stormwater 

Mgmt. Rules, 384 N.J. Super. 451, 461 (App. Div.), certif. 

denied, 188 N.J. 489 (2006)). "A court will imply powers to 

enable the agency to effectuate the intent of the statute." 

Ibid. 
21 A-1752-12T3

"The primary purpose of CAFRA is to protect the unique and 

fragile coastal zones of the State." In re Egg Harbor Assocs.

(Bayshore Centre), 94 N.J. 358, 364 (1983). "Although CAFRA is 

principally an environmental protection statute, the powers 

delegated to DEP extend well beyond protection of the natural 

environment. Succinctly stated, the delegated powers require 

DEP to regulate land use within the coastal zone for the general 

welfare." Ibid. 

By enacting CAFRA, the Legislature intended to limit 

potential adverse environmental impacts while encouraging 

development of compatible land uses in the coastal zone. Seigel 

v. N.J. Dep't of Envtl. Prot., 395 N.J. Super. 604, 615 (App.

Div.) (citing N.J.S.A. 13:19-2), certif. denied, 193 N.J. 277 

(2007). Thus, "[e]ach agency decision involving an application 

for development under CAFRA invokes these 'competing policy 

considerations.'" Ibid. (quoting In re Cape May Cty. Mun. 

Utils. Auth., 242 N.J. Super. 509, 516 (App. Div. 1990)). CAFRA 

specifically was intended to "preserve[] the most ecologically 

sensitive and fragile area from inappropriate development and 

provide[] adequate environmental safeguards for the construction 

of any developments in the coastal area." N.J.S.A. 13:19-2

(emphasis added). 
22 A-1752-12T3

We have previously discussed at length CAFRA's permitting 

process and DEP's regulatory authority under the statute. See, 

e.g., Dragon v. N.J. Dep't of Envtl. Prot., 405 N.J. Super. 478, 

494-97 (App. Div.), certif. denied, 199 N.J. 517 (2009). 

Succinctly stated, "CAFRA expressly requires that any 

development within the State's specified 'coastal area' either 

(1) be conducted under a permit issued pursuant to N.J.S.A.

13:19-5 or -5.1, or (2) be an activity that is explicitly 

exempted from the permitting requirement by N.J.S.A. 13:19-5.2 

or -5.3." Id. at 494.

In Avalon, we rejected DEP's argument that CAFRA authorized 

the 2007 rule requiring public access to beaches at all times. 

Avalon, supra, 403 N.J. Super. at 601. We held 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 [MLUL]." Ibid. (citing Bubis v. Kassin, 

184 N.J. 612, 630 (2005); Lusardi, supra, 86 N.J. at 229). 

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." Id. at 601. 
23 A-1752-12T3

As to the requirement of additional parking and bathroom 

facilities contained in the 2007 version of the Rules, we 

recognized that "CAFRA does not include any provision 

authorizing [] DEP to condition the issuance of [] a permit upon 

a municipality agreeing to provide additional parking spaces or 

restrooms in order to facilitate public access to the beach." 

Id. at 606. We rejected the agency's claim that because Raleigh 

Avenue recognized DEP's jurisdiction to monitor beach fees, the 

agency "ha[d] implied authority to impose whatever additional 

obligations [] DEP deem[ed] appropriate to facilitate public 

access to the beach." Id. at 607. We noted, DEP's authority to 

review beach fees "can be viewed as 'incidental' to the powers 

the Legislature expressly granted to [] DEP under CAFRA," but 

prescribing parking and bathroom facilities involved important 

policy questions within the "exclusive province of the 

Legislature." Id. at 607-08. "The Legislature could of course 

delegate authority for making these decisions to [] DEP. 

However, CAFRA does not contain such a delegation of authority." 

Id. at 608.

The only connection we discern between CAFRA's permitting 

process and the most recent iteration of the Rules is that 

applicants for CAFRA permits in municipalities that have adopted 

approved MPAPs may satisfy public access requirements "in 
24 A-1752-12T3

accordance with the [MPAP]."6 N.J.A.C. 7:7-16.9(c) and (k). As 

already mentioned, in towns without approved MPAPs, an applicant 

must comply with other provisions of the Rules that place 

significant restrictions upon him or her. N.J.A.C. 7:7-

16.9(c)(2) and (n). For example, pursuant to N.J.A.C.

7:7-16.9(u), public access areas must be clearly marked by signs 

approved by DEP, and, pursuant to N.J.A.C. 7:7-16.9(z), "areas 

set aside for public access to tidal waterways and their shores 

shall be permanently dedicated for public use through the 

recording of a Department approved conservation restriction." 

Perhaps DEP could choose to adopt a different permitting 

process in municipalities that have adopted an MPAP. The 

precise question is not before us, nor do we need to decide the 

issue. We conclude that any nexus between CAFRA's general 

statutory purposes, its permitting processes and the Rules is 

limited at best, and it cannot justify the broad and pervasive 

regulatory regime imposed by the Rules taken as a whole. 

Lastly, we note that CAFRA applies only to a well-defined 

"coastal area." N.J.S.A. 13:19-4. That "coastal area" is not 

 

6 The record included DEP's template for formulating an MPAP, as 

well as one MPAP submitted by a municipality. Given the lack of 

specificity contained in these documents, it is unclear how a 

private landowner applying for an individual permit under CAFRA, 

for example, would necessarily satisfy his or her "public access 

requirements" by simply relying on the approved MPAP.
25 A-1752-12T3

co-extensive with the "coastal zone," to which the Rules 

specifically apply. In short, CAFRA does not serve as explicit 

or implicit authority for DEP to promulgate the Rules.

(2)

For the sake of completeness, we address appellants' 

argument that the Rules conflict with provisions of the MLUL and 

other statutes that embody the Legislature's express delegation 

of powers to municipalities. Specifically, they argue DEP 

cannot require that a municipality wishing to adopt an MPAP 

incorporate same in its master plan, nor can DEP authorize the 

creation of municipal Public Access Funds. 

The MLUL is "a comprehensive statute that allows 

municipalities to adopt ordinances to regulate land development 

'in a manner which will promote the public health, safety, 

morals and general welfare' using uniform and efficient 

procedures." Rumson Estates, Inc. v. Mayor & Council of Fair 

Haven, 177 N.J. 338, 349 (2003) (quoting Levin v. Twp. of 

Parsippany-Troy Hills, 82 N.J. 174, 179 (1980)). However, a

municipality's power "must be exercised in strict conformity 

with the delegating enactment — the MLUL." Toll Bros. v. Bd. of 

Chosen Freeholders of Burlington, 194 N.J. 223, 243 (2008). 

Two goals of the MLUL are:

To provide sufficient space in 

appropriate locations for a variety of 
26 A-1752-12T3

agricultural, residential, recreational, 

commercial and industrial uses and open 

space, both public and private, according to 

their respective environmental requirements 

in order to meet the needs of all New Jersey 

citizens.

. . . .

To promote the conservation of historic 

sites and districts, open space, energy 

resources and valuable natural resources in 

the State and to prevent urban sprawl and 

degradation of the environment through 

improper use of land . . . [.]

[N.J.S.A. 40:55D-2(g) and (j) (emphasis 

added).]

N.J.S.A. 40:55D-28(b) requires that a master plan must include 

"[a] statement of objectives, principles, assumptions, policies 

and standards" and "[a] land use plan element . . . ." N.J.S.A.

40:55D-28(b)(1) and (b)(2). The statute then sets forth 

fourteen other discretionary elements. 

The land use plan element requires consideration of 

"topography, soil conditions, water supply, drainage, flood 

plain areas, marshes, and woodlands[.]" N.J.S.A. 40:55D28(b)(2)(a). Discretionary elements include a "recreation plan 

element," that includes "a comprehensive system of areas and 

public sites for recreation[,]" and a "conservation plan 

element" that provides "for the preservation, conservation, and 

utilization of natural resources, including . . . marshes, 
27 A-1752-12T3

wetlands, harbors, rivers and other waters . . . ." N.J.S.A.

40:55D-28(b)(7) and (8).

Given this extensive list of a master plan's permissible 

contents, we reject appellants' argument that, by permitting 

municipalities to adopt an MPAP and requiring them to 

incorporate it as part of their master plans, the Rules violate 

this portion of the MLUL. Adopting an MPAP seems consistent 

with these required and permitted portions of a master plan.7

However, we note that the MLUL provides that a master plan 

must be periodically re-examined, N.J.S.A. 40:55D-89, the 

reexamination report must include specific recommendations as to 

amendments to the master plan, N.J.S.A. 40:55D-89(d), and the 

failure to adopt a re-examination report "constitute[s] a 

rebuttable presumption that the municipal development 

regulations are no longer reasonable." N.J.S.A. 40:55D-89.1. 

We express substantial doubt that those provisions of the Rules 

requiring the regular update of MPAPs and prohibiting amendment 

without DEP approval can be harmonized with these provisions of 

the MLUL. 

 

7 We note that the Legislature anticipated that a master plan 

could designate private property for anticipated public use, and 

the Planning Board could reserve those locations for one year, 

subject to just compensation to an affected developer. See

N.J.S.A. 40:55D-44.
28 A-1752-12T3

We do agree with appellants that the creation of municipal 

Public Access Funds by which participating municipalities may, 

pursuant to the Rules, receive monetary contributions from 

permit applicants is, absent a specific legislative grant of 

authority, ultra vires. In New Jersey Shore Builders Ass'n v. 

Township of Jackson, 199 N.J. 449 (2009), the Court concluded 

that the municipal appellants lacked the authority to promulgate 

ordinances that required developers to set aside open space or 

make payments in lieu thereof. Id. at 452. The Court 

recognized that the "statutory authority that permits a 

municipality to require contributions for off-tract improvements 

is limited." Id. at 453 (citing N.J.S.A. 40:55D-42 ("referring 

to contributions for off-tract improvements to water, sewer, 

drainage, and street improvements only")).

DEP cites no statutory authority by which municipalities 

may accept monetary contributions from permit applicants simply 

by adopting an MPAP, and no such authority is provided by the 

MLUL or any other statute that we located. Those provisions of 

the Rules that empower a municipality to create a Public Access 

Fund lack any statutory authority and are ultra vires.

III.

In sum, we conclude that absent a specific legislative 

grant of authority, DEP was not authorized by the public trust 
29 A-1752-12T3

doctrine to promulgate the Rules. We further conclude that 

CAFRA's permitting provisions might implicitly authorize limited 

portions of the Rules, but it is not our task to identify which 

limited portions of the Rules could be so authorized. Given

their 1) application beyond CAFRA's territorial limits, and 2) 

their extensive scope, the Rules exceed any implied grant of 

legislative authority under the statute. Lastly, we conclude 

that the creation of a municipal Public Access Fund would be an 

ultra vires exercise of municipal power, and, while the MLUL 

could authorize adoption of a MPAP as part of a municipal master 

plan, the provisions of the MLUL that govern amendment of the 

master plan leave no room for DEP's pervasive involvement in the 

process as set forth in the Rules. 

We therefore conclude that the Rules must be stricken, and 

we invalidate N.J.A.C. 7:7-9.48, the public trust rights rule, 

and N.J.A.C. 7:7-16.9, the public access rule, as well as any 

other provisions of the regulations that rely upon those two 

sections.