This appeal arises from a denial by respondent New Jersey Department of Environmental Protection ("DEP") of a request by appellants to rescind what is known as a flood hazard area general permit-by-certification 5 ("GPC 5") granted to a neighboring residential property owner, Kenneth Nicosia.
Appellants own residential property that abuts Nicosia's parcel, both located within a block of the Atlantic Ocean shoreline. Nicosia, a developer, sought the permit to replace a single-family house on the site with a new house.
After receiving notice of Nicosia's application for a GPC 5, appellants and several other local residents submitted comments to the DEP contesting the application. The comments objected to the issuance of the GPC 5, and further alleged that Nicosia's ongoing construction of the new house was not adhering to the permit's conditions. A DEP Section Chief responded to appellants by email, rejecting their objections and declining to modify or rescind the permit. This appeal ensued.
Appellants principally argue that (1) the written notice they received of Nicosia's permit application was deficient because it failed to state the permit was effective during the comment period; and (2) the applicable DEP regulations should be construed to require a GPC 5 applicant to show that an existing structure is not in "usable condition" due to "decay" or "damage." See N.J.A.C. 7:13-1.2 (defining the terms "reconstruct" and "repair" under the regulations).
The court concludes the GPC 5 notice did not violate any statutory or regulatory provisions, nor was it constitutionally deficient. In addition, although the pertinent regulations are poorly worded and punctuated, the DEP has reasonably construed them to not require an applicant who, as here, seeks to replace a lawfully existing structure to demonstrate the structure is decayed, damaged, or otherwise not in usable condition. But nothing in this opinion precludes the pursuit of available enforcement remedies if the construction, as built, does not comply with the conditions of the GPC 5 or applicable statutes or regulations.