SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3561-18

IN THE MATTER OF THE 

CHALLENGE TO THE DENIAL

OF THE REQUEST FOR

ADJUDICATORY HEARING 

AND THE GRANT OF CAFRA

PERMIT REGARDING

MORDECHAI STERNSTEIN C/O

GDMS HOLDINGS, LLC CAFRA

INDIVIDUAL PERMIT, 

FRESHWATER WETLANDS 

GENERAL PERMIT NO. 6, AND

WATER QUALITY 

CERTIFICATE, PERMIT NO.

1500-04-0005.3 APL1700001

CHALLENGED BY FAIRWAYS

AT LAKE RIDGE 

HOMEOWNERS ASSOCIATION,

INC., DATED APRIL 12, 2019.

_____________________________

Argued April 19, 2021 – Decided June 22, 2021

Before Judges Currier and DeAlmeida.

On appeal from the New Jersey Department of 

Environmental Protection, Permit Nos. 6 and

1500-04-0005.3 APL1700001.

NOT FOR PUBLICATION WITHOUT THE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.
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A-3561-18

Michele R. Donato argued the cause for appellant 

Fairways at Lake Ridge Homeowners Association, Inc.

Matthew N. Fiorovanti argued the cause for respondent 

Mordechai Sternstein c/o GDMS Holdings, LLC 

(Giordano, Halleran & Ciesla, attorneys; Matthew N. 

Fiorovanti, of counsel and on the brief; David J. Miller, 

on the brief).

Kathrine M. Hunt, Deputy Attorney General, argued 

the cause for respondent New Jersey Department of 

Environmental Protection (Gurbir S. Grewal, Attorney 

General, attorney; Melissa H. Raksa, Assistant 

Attorney General, of counsel; Kathrine M. Hunt, 

Deputy Attorney General, on the brief).

PER CURIAM

Appellant Fairways at Lake Ridge Homeowners Association, Inc. 

(Fairways) appeals from the April 12, 2019 order of respondent Commissioner, 

Department of Environmental Protection (DEP) denying its request for an 

adjudicatory hearing with respect to approvals DEP issued to respondent 

Mordechai Sternstein c/o GDMS Holdings, LLC (GDMS) authorizing the 

commercial and residential development of respondent's property. We affirm.

I.

The following facts are derived from the record. GDMS intends to 

develop four contiguous lots comprising approximately 100 acres in Lakewood 

Township on which is located the Eagle Ridge golf course. Fairways is a 
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homeowners' association whose members include approximately 1124 property 

owners in an age-restricted residential development adjacent to the golf course. 

A private road in the Fairways development, Augusta Boulevard, provides 

access to the golf course through an easement.

In 2017, GDMS applied to DEP for permits necessary to develop the 

property pursuant to the Coastal Area Facility Review Act (CAFRA), N.J.S.A. 

13:19-1 to -51, the Freshwater Wetlands Protection Act (FWPA), N.J.S.A. 

13:9B-1 to -30, and regulations implementing the statutes. Fairways opposed 

the application.

On August 3, 2017, DEP denied the application. GDMS challenged the 

denial and requested the matter be submitted to DEP's alternative dispute 

resolution process. GDMS and DEP entered into a settlement that provided for 

DEP to publish a notice of intent to settle and issue approvals to GDMS for 

development of its property, a thirty-day public comment period, and 

submission of agreed upon plans to Lakewood and interested parties that 

previously commented on GDMS's application. The stipulation provided that 

DEP would issue the approvals following the public comment period unless any 

comments showed that the decision to approve the development was based on 
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incomplete or inaccurate information or violated DEP regulations. Fairways 

submitted comments on the settlement during the public comment period.

On January 11, 2018, DEP issued a CAFRA individual permit, freshwater 

wetlands general permit, and a water quality certificate to GDMS (collectively, 

the Permit). The Permit authorizes the construction of 1034 residential units, 

five community buildings, a clubhouse, retail buildings, parking, internal 

roadways, stormwater management facilities, and associated improvements on 

the golf course property. The Permit also authorizes filling 14,941 square feet 

(0.34 acres) of isolated intermediate value freshwater wetlands and requires 

GDMS to record conservation restrictions on 1.94 acres of forested area to meet 

vegetation cover requirements and other areas of critical habitat for the redheaded woodpecker, a protected species under CAFRA.

Notice of the January 11, 2018 issuance of the Permit was published in 

the DEP bulletin on February 7, 2018. Fairways did not file a notice of appeal 

challenging the Permit.

On February 15, 2018, Fairways requested an adjudicatory hearing

regarding issuance of the Permit. In its hearing request, Fairways argued that 

the Permit conflicts with certain provisions of Lakewood municipal land use 

ordinances, earlier municipal approvals for GDMS's planned development, and 
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CAFRA's implementing regulations. Fairways also argued that the planned 

development of the golf course property requires additional permits and 

conflicts with prior CAFRA approvals issued with respect to the development 

of the Fairways community. Fairways contends that the approval of its 

development was conditioned on the golf course property remaining open space

and that the Permit allows GDMS to use Augusta Boulevard for access to its

proposed development, contrary to the terms of the existing easement.

GDMS opposed the application, arguing Fairways lacked standing to 

request a hearing and that its substantive arguments were meritless. It stated 

that it did not intend to use Augusta Boulevard for access to the development.

On April 12, 2019, the Commissioner denied Fairways's request for a 

hearing. The Commissioner found that Fairways was not an applicant, State 

agency, or an individual with a "particularized property interest sufficient to 

require a hearing on constitutional or statutory grounds." N.J.S.A. 52:14B-3.2. 

The Commissioner noted that neither CAFRA nor FWPA give Fairways a 

statutory right to an adjudicatory hearing. In addition, the Commissioner 

determined that Fairways's interest in the Augusta Boulevard easement was not 

a particularized property interest sufficient to create a right to an adjudicatory 

hearing because the Permit authorizes activities on land adjacent to, but not 
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A-3561-18

including, Augusta Boulevard and does not impact the existing easement or its 

terms. Further, the Commissioner noted that GDMS had conceded that it does 

not intend to use Augusta Boulevard for access to its development.

The Commissioner also found that Fairways's contention regarding the 

dedication of the golf course property as open space was, in effect, a question 

of interpretation and implementation of Lakewood's zoning ordinances within 

the exclusive jurisdiction of the municipality. The Commissioner also noted 

that a standard condition of the Permit requires GDMS to obtain all necessary 

permits and approvals from the municipality. Fairways can raise its claims 

concerning the alleged open space dedication before municipal officials.1

On April 23, 2019, Fairways filed a notice of appeal challenging the April 

12, 2019 agency decision. Fairways raises the following arguments.

POINT I

THE CAFRA PERMIT AND THE DENIAL OF THE 

ADJUDICATORY HEARING LACK SUBSTANTIAL 

CREDIBLE EVIDENCE TO SUPPORT THE 

DECISION OF THE [DEP].

POINT II

1

 The Commissioner took no position on constructive trust, consumer fraud, and 

statutory claims concerning the marketing of the Fairways development that 

Fairways has alleged in a pending Law Division action.
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THE [DEP] ERRED IN FAILING TO RECOGNIZE 

THAT THE FAIRWAYS ASSOCIATION HAS A 

PARTICULARIZED INTEREST AND IN 

CONCLUDING THAT A CONSTITUTIONAL 

RIGHT MUST BE SHOWN.

POINT III

THE [DEP] ERRED IN APPROVING SETTLEMENT 

OF A DENIED PERMIT WITHOUT COMPLIANCE 

WITH THE ADMINISTRATIVE CODE.

POINT IV

THE [DEP] ERRED IN IGNORING THE OPEN 

SPACE PROTECTIONS OF THE [MUNICIPAL 

LAND USE LAW].

POINT V

THE 2018 CAFRA PERMIT ALLOWS A 

PERCENTAGE OF IMPERVIOUS COVERAGE 

INCONSISTENT WITH THE STATE PLAN POLICY 

MAP.

GDMS and DEP argue that Fairways's appeal is limited to the denial of 

its request for an adjudicatory hearing because Fairways did not appeal the 

January 11, 2018 issuance of the Permit. They argue that this court lacks 

jurisdiction to consider Fairways's substantive challenges to the Permit.

II.

We first address the scope of Fairways's appeal. When DEP issued the 

Permit on January 11, 2018, Fairways had the option of appealing the Permit 
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directly to this court within forty-five days, R. 2:4-1(b), pursuing administrative 

remedies at the DEP, N.J.A.C. 7:7-28.1, or taking both steps. In re Riverview 

Dev., LLC, 411 N.J. Super. 409, 425 (App. Div. 2010). Fairways elected to seek 

a hearing at the DEP. It did not file a notice of appeal challenging the 

substantive provisions of the Permit within forty-five days of its issuance.

Fairways's request for a hearing did not affect the Permit's status as a final 

agency decision. N.J.A.C. 7-7.28.3(b) provides that "[w]hen a person other than 

the permittee requests an adjudicatory hearing on a permit or authorization, the 

operation of the permit or authorization is not automatically stayed. The 

Department shall stay operation of the permit or authorization only if it 

determines that good cause to do so exists." This regulation implicitly 

recognizes that a DEP approval that is the subject of a third-party adjudicatory 

hearing request is a final agency decision. To conclude otherwise would render 

the regulation superfluous, as a stay of a DEP approval would not be a 

consideration if the permit was not final.

The DEP's April 12, 2019 final agency decision, which is the only decision 

of the agency issued within forty-five days of the April 23, 2019 notice of 

appeal, concerns the narrow question of whether Fairways was entitled to an 

adjudicatory hearing. Fairways cannot assert a time-barred challenge to the 
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substantive basis of the Permit through its appeal of DEP's decision to deny its 

request for an adjudicatory hearing. See Dep't of Law & Pub. Safety v. 

Contemporary Cmtys., 337 N.J. Super. 177, 179 (App. Div. 2001). We, 

therefore, do not address the arguments raised by Fairways regarding the 

substantive validity of the Permit.

III.

With respect to the agency's denial of Fairways's request for an 

adjudicatory hearing, a "strong presumption of reasonableness attaches to the 

actions of the administrative agencies." In re Carroll, 339 N.J. Super. 429, 437 

(App. Div. 2001) (quoting In re Vey, 272 N.J. Super. 199, 205 (App. Div. 

1993)). The scope of our review of a final decision of an administrative agency 

is limited and we will not reverse such a decision unless it is "arbitrary, 

capricious, or unreasonable, or . . . not supported by substantial credible 

evidence in the record as a whole." In re Stallworth, 208 N.J. 182, 194 (2011) 

(citing Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). When 

making that determination, we consider:

(1) whether the agency's action violates express or 

implied legislative policies, that is, did the agency 

follow the law; (2) whether the record contains 

substantial evidence to support the findings on which 

the agency based its action; and (3) whether in applying 

the legislative policies to the facts, the agency clearly 
10 A-3561-18

erred in reaching a conclusion that could not reasonably 

have been made on a showing of the relevant factors.

[Ibid. (citing In re Carter, 191 N.J. 474, 482-83 

(2007)).]

We are "in no way bound by the agency's interpretation of a statute or its 

determination of a strictly legal issue . . . ." Carter, 191 N.J. at 483 (quoting 

Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)). We will, however, 

generally "afford substantial deference to an agency's interpretation of a statute 

that the agency is charged with enforcing." Patel v. N.J. Motor Vehicle Comm'n, 

200 N.J. 413, 420 (2009) (quoting Richardson v. Bd. of Trs., 192 N.J. 189, 196 

(2007)). Substantial deference must be extended to an agency's interpretation 

of its own regulations, particularly on technical matters within the agency's 

expertise. In re Freshwater Wetlands Prot. Act Rules, 180 N.J. 478, 488-89 

(2004).

Under the Administrative Procedure Act (APA or the Act), an "applicant" 

is entitled to request an adjudicatory hearing with respect to a decision by the 

DEP on its application. The APA defines "applicant" as an entity seeking an 

"agency license, permit, certificate, approval, chapter, registration[,] or other 

form of permission required by law." N.J.S.A. 52:14B-3.2. The Act, however, 

"strictly limits the situations in which third parties are entitled to . . . a formal 
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hearing to challenge a permit application." In re Riverview Dev., 411 N.J. 

Super. at 424. A third party is defined as any person other than:

a. An applicant . . . .

b. A State agency; or

c. A person who has a particularized property 

interest sufficient to require a hearing on constitutional 

or statutory grounds.

[N.J.S.A. 52:14B-3.2.]

Accordingly, a non-applicant can demand an adjudicatory hearing only 

where the non-applicant can demonstrate: (1) a right to a hearing under an 

applicable statute; or (2) a "particularized property interest" of constitutional 

significance. In re Freshwater Wetlands Statewide Gen. Permits, 185 N.J. 452, 

463–64 (2006). These limitations are "intended to prevent the processing of 

permit applications by State agencies from being bogged down by timeconsuming and costly formal hearings," which "consume substantial public and 

private resources." In re Riverview Dev., 411 N.J. Super. at 424.

Having considered the record in light of the applicable legal precedents, 

we conclude that DEP's decision denying Fairways's request for an adjudicatory 

hearing is well supported by the record. Fairways acknowledges that it is not an 

applicant with respect to the Permit. Neither the CAFRA nor the FWPA provide 
12 A-3561-18

a third-party with a statutory right to appeal a permit issued to an applicant by 

the DEP. In re Auth. for Freshwater Wetlands Statewide Gen. Permit 6, 433 

N.J. Super. 385, 407 (App. Div. 2013) (finding the FWPA does not provide 

third-party objectors with the right to a plenary administrative hearing to 

challenge the DEP's issuance of a permit); Spalt v. Dep't of Envt'l Protection,

237 N.J. Super. 206, 211-12 (App. Div. 1989) (finding the CAFRA does not 

provide third-party objectors with the right to a plenary administrative hearing 

to challenge the DEP's issuance of a permit). Fairways identified no other 

statute entitling it to a hearing.

We also agree with DEP's determination that Fairways does not have a 

particularized property interest sufficient to create a right to an adjudicatory

hearing. "[T]hird parties generally are not able to meet the stringent 

requirements for constitutional standing in respect of an adjudicatory hearing." 

In re NJPDES Permit No. NJ0025241, 185 N.J. 474, 482 (2006). Fairways does 

not own the property that GDMS seeks to develop; its members own property in 

an adjoining development. "[L]andowners objecting to the development of 

neighboring property" do not, by proximity alone, "have a particularized 

property interest warranting an adversarial hearing before an administrative law 

judge." In re Freshwater Wetlands Gen. Permits, 185 N.J. at 470. Our courts 
13 A-3561-18

have consistently held that a generalized property right shared with other 

property owners, such as collateral economic impacts, traffic, views, quality of 

life, recreational interest, and property values, are insufficient to establish a 

third-party right to an adjudicatory hearing. Ibid.; In re Riverview Dev., 411 

N.J. Super. at 429; In re AMICO/Tunnel Carwash, 371 N.J. Super. 199, 212 

(App. Div. 2004); In re Waterfront Dev. Permit No. WD88-0443-1, Lincoln 

Harbor Final Dev., 244 N.J. Super. 426, 436 (App. Div. 1990); Spalt, 237 N.J. 

Super. at 212; Normandy Beach Improv. Ass'n v. Comm'r, DEP, 193 N.J. Super. 

57, 61 (App. Div. 1983).

Any interest that the members of Fairways have with respect to the alleged 

prior dedication of the golf course property as open space and the municipal and 

DEP approvals associated with the construction of their development are not 

particularized property interests under the APA. The DEP adjudicatory process 

is not the forum in which Fairways may assert those claims. The Commissioner

concluded she would take no position on those claims, which Fairways may 

pursue before municipal land use authorities or in its pending Law Division 

action.

In addition, the Permit does not purport to affect Fairways's rights under 

the Augusta Boulevard easement. As the Commissioner aptly noted, the Permit 
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authorizes activities on land adjacent to, and not including, Augusta Boulevard, 

does not address the terms of the easement, and is based on a proposal that 

GDMS concedes does not include use of Augusta Boulevard for access to the 

development. As is the case with the zoning-related claims raised by Fairways, 

any rights that it has under the easement can be enforced through the courts. An 

adjudicatory hearing before the DEP is not the appropriate forum for claims 

under the easement.

To the extent we have not addressed any of Fairways's remaining 

arguments we find them to be without sufficient merit to warrant discussion in 

a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.