ELR Citation: ELR 20236
No(s). A-102 (N.J. Jun 20, 1990)

The court holds that the New Jersey Department of Environmental Protection (DEP) exceeded its authority in promulgating two rule amendments to the Waterfront Development Act that would allow New Jersey to regulate development in upland areas not immediately contiguous to a waterfront. Following a declaration by then-Governor Kean that the state's coasts were in "imminent peril" and to protect the coast from the environmental hazards of development, the amendments would have established a buffer zone, extending DEP's regulatory authority to developments in upland areas extending considerably beyond the waterfront. The court holds that the amendments are ultra vires because they exceed the Act's underlying purpose of regulating commerce along the waterfront. The court further holds that the Act permits DEP to regulate development only if it has a direct effect on New Jersey's navigable waterways. Although the amendments are outside the Act's scope, the court notes that it is conceivable that a well-crafted regulation tying the development of adjacent uplands to potential damage to the state's waterfront and water resources could withstand scrutiny.

Counsel for Appellants
Harley A. Williams, Mary C. Jacobson, Deputy Attorneys General
Peter N. Perretti Jr., Attorney General
R.J.H. Justice Complex CN 080, Trenton NJ 08625
(609) 292-4925

Counsel for Respondents
Richard M. Hluchan
Levin & Hluchan
1202 Laurel Oak Rd., Voorhees NJ 08043
(609) 627-8555