New Jersey Case Of The Month: Pinelands Preservation Alliance, Et. Al. v. NJ DEP, Et. Al.

In a published opinion, Pinelands Preservation Alliance v. NJDEP, Doc # A-4880-11T2; A-4883-11T2, the appellate division reversed and remanded for further consideration the CAFRA individual permit issued by the New Jersey Department of Environmental Protection to Jaylin Holdings, LLC for the development of a proposed shopping center on Route 37 in Toms River, New Jersey. The court overturned the CAFRA permit on a narrow fact/policy issue related to the boundaries of the Toms River Coastal Center. However, the court sanctioned consideration of habitat net impact evaluation and mitigation measures in evaluating CAFRA individual permits.

By way of background, in 2004, Jaylin applied for a CAFRA individual permit and related stream encroachment and wetland transition area relief to enable the development of its property. In 2005, evidence of northern pine snake hibernacula was discovered on the Jaylin property. The northern pine snake is a threatened and endangered species pursuant to N.J.A.C. 7:25-4.17. The discovery of the northern pine snake hibernacula lead to the NJDEP's denial of the original permit application pursuant to N.J.A.C. 7:7E-3.38.

After numerous plan revisions over the next three years, Jaylin filed a revised permit application with the NJDEP. This application reflected plan revisions and mitigation proposals that arose from a nonbinding mediation process Jaylin proposed a variety of different protective measures to minimize impact on the site to the existing hibernaculum, as well as off-site land preservation to facilitate the enhancement of northern pine snake habitat within the northern Pinelands area, but not on the Jaylin property. In 2010, the DEP again denied Jaylin's CAFRA individual permit application, which was appealed by Jaylin.

In subsequent settlement discussions, the NJDEP and Jaylin agreed to a revised permit application including further revisions to the site plan and additional protective measures for the existing pine snake hibernaculum. In support of the application, Jaylin submitted a Habitat Evaluation Method (HEM) for the northern pine snake. NJDEP also prepared a HEM. In August 2010, as a result of the concerted effort of the NJDEP and Jaylin, a proposed settlement was reached and public comment requested on the settlement. After nearly one year in the comment period, Jaylin and the DEP entered into a stipulation of settlement that resulted in the issuance of an individual CAFRA permit for the...