                                NOT FOR PUBLICATION WITHOUT THE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.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-1745-18T1

JSTAR, LLC,

          Appellant,

v.

NEW JERSEY DEPARTMENT
OF ENVIRONMENTAL
PROTECTION -LAND USE
REGULATION PROGRAM

and

RTS IV, LLC a/k/a JOSEPH R.
PRESTIFILIPPO, JR., No
1506-04-0203.6 CAF180001,

     Respondents.
______________________________

                    Submitted March 23, 2020 – Decided July 16, 2020

                    Before Judges Rothstadt, Moynihan and Mitterhoff.

                    On appeal from the New Jersey Department of
                    Environmental Protection.

                    R.C. Shea & Associates, attorneys for appellant (Robert
                    C. Shea, of counsel; Dina M. Vicari, on the briefs).
            Gurbir S. Grewal, Attorney General, attorney for
            respondent New Jersey Department of Environmental
            Protection (Donna Arons, Assistant Attorney General,
            of counsel; Jason Brandon Kane, Deputy Attorney
            General, on the brief).

            King Kitrick Jackson McWeeney & Wells, LLC,
            attorneys for respondent RTS (John J. Jackson III and
            Jilian L. McLeer, on the brief).

PER CURIAM

      JSTAR, LLC appeals from the New Jersey Department of Environmental

Protection's (DEP) November 8, 2018 final agency decision, granting a Coastal

Area Facility Review Act (CAFRA), N.J.S.A. 13:19-1 to -21, Individual Permit

to RTS IV, LLC (RTS). The CAFRA permit was issued in connection with

RTS's proposal to construct a residential development in Brick Township to be

called "Osborn Estates." The development called for the construction of seven

single-family homes located on a portion of a former residential community that

was commonly known as "Camp Osborn" that had been destroyed by

Superstorm Sandy.

      On appeal, JSTAR argues that: (1) RTS failed to provide the public with

proper notice of its CAFRA permit application, as both the description of the

proposed development was insufficient and property owners entitled to notice

were never notified; (2) JSTAR, as well as the public, was not afforded adequate


                                                                        A-1745-18T1
                                       2
due process; (3) RTS's application was not "substantiated by sufficient

information and empirical data," thus violating numerous regulatory provisions;

and (4) RTS is precluded from modifying its CAFRA permit. We affirm, as we

conclude that JSTAR failed to establish that the DEP's granting of the CAFRA

permit was arbitrary, capricious, or unreasonable, and its arguments to the

contrary are without merit.

                                        I.

                           The Property and the Project

        RTS's site is approximately 1.405 acres and located in Block 36 Lot 12.

Cummings Street, which was also destroyed by Superstorm Sandy, is located on

RTS's property and runs west to east from Route 35.1 It lies between the

proposed Osborn Estates and property that is being redeveloped by the Osborn

Sea-Bay Condominium Association (OSBCA) that is located in Block 13.2 In


1
    "Cummings Street" is at times referred to in the record as "Cummins Street."
2
  In In re JSTAR, LLC v. N.J. Department of Environmental Protection-Land
Use Regulation Program, No. A-4483-17, (App. Div. Apr. 27, 2020) (JSTAR I),
we affirmed the DEP's issuance of a CAFRA permit for OSBCA's project. In
that opinion, we rejected challenges raised by JSTAR that were similar, if not
identical, to many of those raised in the present appeal.
  OSBCA's proposal called for, among other things, the construction of an
extension of Cummings Street that would run from north to south on its property,
eventually connecting with the east-west portion of Cummings Street that RTS
proposed to redevelop.
                                                                         A-1745-18T1
                                        3
addition to the seven single-family homes, RTS's proposed development called

for the reconstruction of Cummings Street, and the construction of a six-foot-

wide dune walkover, allowing beach access for Osborn Estates residents.

      OSBCA's property is to the north of RTS's proposed development, and

single-family residences are located to the south in Block 36 Lots 11.01 through

11. JSTAR owns the property on Lots 11.06 and 11.07 in Block 36. To the east of

RTS's property lies the United States Army Corps. of Engineers (Army Corps.)

dune project adjacent to the beach. Route 35 lies to the west.

                   The CAFRA Individual Permit Application

      On June 26, 2018, RTS submitted an application requesting a CAFRA

permit for Osborn Estates.      Included in RTS's application was a CAFRA

Individual Permit Environmental Impact Statement (EIS) rendered by DuBois

Environmental Consultants (Dubois), as well as a Stormwater Management

Report prepared by Lindstrom, Diessner & Carr, P.C. (LDC).

      RTS submitted notice of its application by certified mail to the Planning

Board and Soil Conservation District of Ocean County, as well as the

Construction Official, Planning Board, and Environmental Commission of Brick

Township. It also published a copy of the notice in the Asbury Park Press.




                                                                        A-1745-18T1
                                         4
      In a letter dated July 25, 2018, the DEP notified RTS that its application

was sufficient, that it would be considered and published in the DEP Bulletin on

August 15, 2018, and it would be subject to a public comment period of thirty

days from the date of the publication. The letter required RTS to provide notice

of the public comment period in accordance with N.J.A.C. 7:7-24.4, including

"[n]otification, by certified mail, to all owners of real property, including

easements, as shown on [the] current tax duplicate, within 200 feet of the . . .

properties on which the proposed development would occur."

      On July 31, 2018, RTS sent letters, by certified mail, notifying property

owners within 200 feet of Osborn Estates, as determined by the municipality, of

its permit application. The notice advised that the thirty-day public comment

period would begin on August 15, 2018, and that RTS's complete application

could be viewed at the municipal clerk's office or by appointment at the DEP's

office in Trenton. The notice directed that written comments could be submitted

to the DEP. Appended to the notice was a copy of the Osborn Estates site plan.

      On July 23, 2018, the DEP contacted Dubois, requesting a copy of a Letter

of Map Revision (LOMR) issued by the Federal Emergency Management

Agency (FEMA) for RTS's proposed development. The DEP also requested that

RTS provide it with supplemental information concerning flood elevation levels


                                                                        A-1745-18T1
                                       5
based on the LOMR, as well as information concerning a gravel roadway

existing on the property. In response, LDC emailed the requested information,

attaching a copy of the LOMR issued by FEMA. The DEP later requested that

LDC revise the flood hazard notes and the development's grading and utilities

plan. LDC made the requested revisions on behalf of RTS.

      On August 15, 2018, the DEP published RTS's permit application in the

DEP Bulletin. The publication described the requested permit, informed readers

of the date that the application was received, and indicated the thirty-day public

comment period had begun.

      In an August 29, 2018 letter to the DEP, JSTAR objected to the permit

being issued to RTS.      JSTAR attached two reports, prepared by separate

consulting firms, concluding that RTS's proposed development did no t comply

with the DEP's Coastal Zone Management (CZM) rules, N.J.A.C. 7:7-1.1 to -

29.10, and the Flood Hazard Area Control Act (FHACA) rules, N.J.A.C. 7:13-

1.1 to -24.11. RTS sent the DEP a September 25, 2018 letter responding to the

arguments raised by JSTAR.         RTS also included a supplemental policy

compliance statement.

      On November 1, 2018, the DEP issued an environmental report for Osborn

Estates, concluding:


                                                                          A-1745-18T1
                                        6
            [T]he applicable CAFRA findings, as required by
            [s]ection [ten] of the [a]ct, and as embodied in the Rules
            on [CZM], will be met by the permittee provided all
            permit conditions are met.            A CAFRA permit
            containing permit conditions is expressly contingent
            upon compliance with those conditions, and failure to
            comply with any or all of the permit conditions may
            result in appropriate enforcement actions, or
            suspension or revocation of the permit.

      The DEP's Bureau of Coastal Regulation (Bureau) issued a November 7,

2018 engineering report that concluded RTS's proposal satisfied the FHACA

rules and Stormwater Management rules, N.J.A.C. 7:8-1.1 to -6.3. The Bureau

recommended that the DEP approve the engineering components of RTS's

proposal, subject to several conditions.3

      The next day, the DEP issued CAFRA Permit No. 1506-04-0203.6

CAF180001 to RTS. According to the permit, Osborn Estates consisted of

"seven . . . [two and a half] story, single family dwellings with [an] associated

sewer line, a stormwater management system, a beach access dune crossover

and other associated development including the reconstruction of Cummin[g]s

Street as shown on nine . . . sheets . . . prepared by [LDC]." On November 21,


3
  The conditions referenced in both the environmental and engineering reports
are specified on RTS's CAFRA permit. They range from prohibiting
construction of habitable areas below the elevation listed on the grading and
utilities plan to modifying the deeds to inform purchasers of the flood risks
associated with the property.
                                                                         A-1745-18T1
                                        7
2018, the DEP published RTS's permit in the DEP Bulletin.                   This appeal

followed.

                                           II.

      We accord substantial deference to a state administrative agency to the

extent it acts within its sphere of delegated functions. In re Stallworth, 208 N.J.

182, 194 (2011). We will uphold an agency's decision "unless there is a clear

showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair

support in the record." J.B. v. N.J. State Parole Bd., 229 N.J. 21, 43 (2017)

(quoting In re Herrmann, 192 N.J. 19, 27-28 (2007)). In evaluating whether a

decision was arbitrary, capricious, or unreasonable, we examine:

                      (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 erred in
                      reaching a conclusion that could not
                      reasonably have been made on a showing
                      of the relevant factors.

                      [Stallworth, 208 N.J. at 194 (quoting In re Carter,
                      191 N.J. 474, 482 (2007)).]

      Similarly, we accord substantial deference to an "agency's interpretation

of   statutes   and     regulations   within     its   implementing   and     enforcing

                                                                                A-1745-18T1
                                           8
responsibility." E.S. v. Div. of Med. Assistance & Health Servs., 412 N.J.

Super. 340, 355 (App. Div. 2010) (quoting Wnuck v. N.J. Div. of Motor

Vehicles, 337 N.J. Super. 52, 56 (App. Div. 2001)). In our review, we defer to

an agency's expertise. As we have observed:

            [J]udicial deference to administrative agencies stems
            from the recognition that agencies have the specialized
            expertise necessary to . . . deal [] with technical matters
            and are 'particularly well equipped to read and
            understand the massive documents and to evaluate the
            factual and technical issues . . . .' "[W]here there is
            substantial evidence in the record to support more than
            one regulatory conclusion, it is the agency's choice
            which governs." The court "may not vacate an agency
            determination because of doubts as to its wisdom or
            because the record may support more than one result,"
            but is "obliged to give due deference to the view of
            those charged with the responsibility of implementing
            legislative programs."

            [In re Adoption of Amendments to Ne., Upper Raritan,
            Sussex Cty. & Upper Del. Water Quality Mgmt. Plans,
            435 N.J. Super. 571, 583-84 (App. Div. 2014)
            (alterations in original) (citations omitted).]

      For those reasons, where an agency's expertise is a factor, we will defer

to that expertise, particularly in cases involving technical matters within the

agency's special competence. In re Freshwater Wetlands Prot. Act Rules, 180

N.J. 478, 488-89 (2004). This deference is even stronger when the agency, like

the DEP, "has been delegated discretion to determine the specialized and


                                                                          A-1745-18T1
                                        9
technical procedures for its tasks." City of Newark v. Nat. Res. Council, Dep't

of Envtl. Prot., 82 N.J. 530, 540 (1980). We are therefore "obliged to give due

deference to the view of those charged with the responsibility of implementing

legislative programs." In re Reallocation of Prob. Officer, 441 N.J. Super. 434,

444 (App. Div. 2015) (quoting In re N.J. Pinelands Comm'n Resolution PC4-00-

89, 356 N.J. Super. 363, 372 (App. Div. 2003)).

      Despite our deference, we are "in no way bound by the agency's

interpretation of a statute or its determination of a strictly legal issue." U.S.

Bank, N.A. v. Hough, 210 N.J. 187, 200 (2012) (quoting Univ. Cottage Club of

Princeton N.J. Corp. v. N.J. Dep't of Envtl. Prot., 191 N.J. 38, 48 (2007)).

"When 'the issue involves the interpretation of statutes and regulations, it is a

purely legal issue, which [is] consider[ed] de novo.'" Pinelands Pres. All. v. N.J.

Dep't of Envtl. Prot., 436 N.J. Super. 510, 524-25 (2014) (quoting Klawitter v.

City of Trenton, 395 N.J. Super. 302, 318 (App. Div. 2007)).

                                       III.

                                      Notice

      We first address JSTAR's contention that RTS's notice was defective

because RTS's description of the project in its application was insufficient and

notice was not sent to all entitled property owners. According to JSTAR, the


                                                                           A-1745-18T1
                                       10
description of the project failed to provide the complete proposed use for

Cummings Street, and the notice should have been extended to other property

owners within 200 feet of both RTS's and OSBCA's properties since residents

from both would be using Cummings Street. Additionally, a proposed five-foot

road-widening easement and a curb cut located along Route 35 necessitated

extending notice to all of those same property owners.

      As JSTAR raised substantially similar challenges to OSBCA's notice,

which we addressed in our earlier opinion, we incorporate by reference our

earlier discussion of the legal principles that we concluded applied to the

required notices for a CAFRA permit application.             These same principles

governed RTS's application. See JSTAR I, slip op. at 13-15.

      With those principles in mind, we turn to RTS's notice. RTS's notice advised

the nearby property owners of its application for the permit, described the project,

and informed interested parties that the full application could be viewed either at the

municipal clerk's office or the DEP's office. As part of its notice, RTS stated it was

seeking a "CAFRA [i]ndividual [p]ermit for a residential project with seven . . .

proposed single-family dwellings, an access road, and one . . . six . . . foot wide

at grade walkover for beach access." Further, the notice identified the street

address as "Route 35 and Cummin[g]s Street."


                                                                               A-1745-18T1
                                         11
      JSTAR contends, relying principally on the Municipal Land Use Law

(MLUL), N.J.S.A. 40:55D-1 to -163, and N.J.A.C. 7:7-24.3, that RTS's notice

was deficient because it failed to advise nearby property owners that Cummings

Street would be used by both Osborn Estates residents and OSBCA residents

since Cummings Street was integral and essential to both sets of residents.

Therefore, RTS's proposal "did not accurately reflect the 'location and

boundaries of the project site and depicting the proposed development.'"

N.J.A.C. 7:7-24.3(d)(1)(ii). There is no merit to JSTAR's contention.

      First, the MLUL does not dictate the contents of a CAFRA permit

application's notice. See JSTAR I, slip op. at 17. Second, under the applicable

CZM rules, RTS's notice was required to briefly describe the proposed project,

provide a site plan detailing the development's location and boundaries depicted

in relation to existing site conditions, and provide a copy of the DEP's form

notice letter. See N.J.A.C. 7:7-24.3(d) and -24.4(d). RTS complied with those

requirements. There was no requirement that RTS had to specify that Cummings

Street would be used by its residents or others.

      JSTAR's second notice argument, that not all property owners entitled to

notice were provided with such notice, is similarly without merit. As JSTAR

did in JSTAR I, it cites to Brower Development Corp. v. Planning Board of the


                                                                        A-1745-18T1
                                      12
Township of Clinton, 255 N.J. Super. 262, 267-70 (App. Div. 1992), and argues

here that because Cummings Street was an "improvement essential to the

proposed RTS [s]ite and the OSBCA [s]ite", "RTS should have properly

requested a property owners list from Brick Township and notified all

landowners within 200 feet of Block 36, Lot 13, as ordered in Brower."

      We again find JSTAR's reliance on Brower to be inapposite essentially for

the reasons stated in our earlier opinion. See JSTAR I, slip op. at 17-18. We

conclude that JSTAR's contention in this matter about the scope of RTS's notice

is equally without merit.    Contrary to JSTAR's assertions here, RTS, like

OSBCA, did not plan for an extension of Cummings Street beyond the confines

of its property. No additional notice was required.

      JSTAR also argues that four property owners never received proper

notice, four other property owners should have been given multiple notices since

they owned multiple properties within 200 feet of the project, notice should have

been extended beyond the initial 200 feet of the project because of an easement

within OSBCA's property, and similarly, a proposed curb cut for Cummings

Street that would extend onto Route 35 required the boundaries for notice being

extended. We are not persuaded by these contentions.




                                                                         A-1745-18T1
                                      13
      First, while JSTAR contends that four property owners within 200 feet of

RTS's development did not receive notice of its application, its contention is

belied by certifications filed in this appeal in accordance with an order we

granted for leave to supplement the record. The certifications from the four

homeowners that supplemented the record confirmed that they were properly

noticed and had no objection to RTS's application. Second, as to JSTAR's

contention that multiple notices should have been sent to some of the property

owners because they owned multiple properties, the CZM rules merely require

that owners be sent notice. The number of properties one owns is irrelevant

under the rules. See N.J.A.C. 7:7-24.3(b)(6).

      Also, JSTAR's contention, that because RTS's site plan indicated both a

five-foot road-widening easement and "a portion of the Cummin[g]s Street

driveway entrance curb cut located along Route 35," are located on OSBCA's

site, RTS should have provided notice to all property owners within 200 feet of

OBSCA's property as well, is factually incorrect. RTS was not proposing to

develop the area cited by JSTAR. As its site plan showed, the five-foot road-

widening easement lies just beyond RTS's property line and Cummings Street.

This is indicated on the site plan by "edge of access road at property line,"

denoting where RTS's proposed development of Cummings Street ends.


                                                                       A-1745-18T1
                                     14
      Further, N.J.A.C. 7:7-24.3(b)(6) merely contemplates that notice be given

to easement holders within 200 feet of the development, not that the existence

of an easement would expand the range of notice required. RTS does not

propose to extend development beyond the boundaries of its lot, thereby limiting

the required notice to 200 feet of Lot 12.

                  Due Process and the Public Comment Period

      We next turn our attention to JSTAR's due process argument. JSTAR

contends that the DEP violated JSTAR's procedural due process rights when the

DEP declined to communicate with JSTAR throughout the public comment

period.4 Here, again, JSTAR raises an argument that is substantially the same

as one it raised in JSTAR I. See JSTAR I, slip op. at 19. We therefore

incorporate the legal principles we discussed in our earlier opinion, id. at 19-21,

and conclude that there was no violation of JSTAR's, or the public's, due process

rights.



4
  In doing so, it relies upon DeBlasio v. Zoning Board of Adjustment of West
Amwell, 53 F.3d 592, 597 (3d Cir. 1995), overruled on other grounds by United
Artists Theatre Circuit, Inc. v. Township of Warrington, 316 F.3d 392 (3d Cir.
2003), to argue that the DEP's failure to communicate with JSTAR throughout
the public comment period was a violation of procedural due process. We
conclude that its reliance on DeBlasio is without merit given the thirty-day
public comment period, during which JSTAR submitted its objections to the
DEP.
                                                                           A-1745-18T1
                                       15
      Here, the record demonstrates that the DEP held the thirty-day public

comment period, of which JSTAR took advantage by submitting its objections

to RTS's application. JSTAR brought to the DEP's attention data, views, and

arguments that it felt should be considered by the DEP in deciding whether to

grant the permit. See In re Issuance of Access Conforming Lot Permit No. A-

17-N-N040-2007, 417 N.J. Super. 115, 130 (App. Div. 2010).            Following

JSTAR's objection, RTS responded to each of JSTAR's contentions, and the

DEP considered JSTAR's arguments.

      JSTAR's insistence that the DEP was obligated to respond to it lacks merit,

as due process only requires JSTAR have an opportunity to respond to the permit

application.   The thirty-day comment period provided such due process.

"[W]hen a state 'affords a full judicial mechanism with which to challenge the

administrative decision' in question, the state provides adequate procedural due

process." DeBlasio, 53 F.3d at 597 (quoting Bello v. Walker, 840 F.2d 1124,

1128 (1988), overruled on other grounds by United Artists Theatre Circuit, Inc.

v. Township of Warrington, 316 F.3d 392 (3d Cir. 2003)).

           Sufficiency of Information to Support Issuing the Permit

      We next turn to JSTAR's contention that RTS's CAFRA permit "was not

substantiated by sufficient information and empirical data."        Specifically,


                                                                         A-1745-18T1
                                      16
JSTAR argues that the DEP's issuing the permit violated N.J.A.C. 7:13-12.6 –

requirements for a railroad, roadway, and parking area; N.J.A.C. 7:7-16.11 –

buffers and compatibility of uses; N.J.A.C. 7:7-9.16 – dunes; and N.J.A.C. 7:7-

9.36 – endangered or threatened wildlife or plant species habitats. As a result

of these violations, JSTAR thus argues that the permit must be suspended under

N.J.A.C. 7:7-27.7.

                                       A.

      JSTAR's first contention is that RTS failed to comply with N.J.A.C. 7:7-

9.25 because its proposed roadways would not be built at the correct elevation

and additionally, RTS failed to meet the exemption in the event it was infeasible

to build the roadways high enough under N.J.A.C. 7:13-12.6(e)(1)(i) to (iv).

Specifically, JSTAR contends that RTS did not satisfy N.J.A.C. 7:13-

12.6(e)(1)(i) to (iv).

      Here, again, JSTAR has raised another contention that we evaluated in our

earlier opinion as it related to OSBCA's application. See JSTAR I, slip op. at

22-23. We therefore again incorporate our explanation of the governing legal

principles set forth in that opinion. Suffice it to say here, as we did there, the

CZM rules required for RTS to either construct Cummings Street "at least one foot




                                                                          A-1745-18T1
                                       17
above the flood hazard area design flood elevation," or meet the requirements for an

exemption by showing that the construction requirement was not feasible. Ibid.

      In support of its argument, JSTAR refers to an expert report, rendered on

its behalf by a consulting firm, finding that RTS made no effort to raise

Cummings Street to the required flood hazard elevation and that it had no valid

reasons for failing to attempt to do so. RTS, however, addressed the flood

hazard elevation requirement in its supplemental policy compliance statement

dated September 2018.

      This report explained in detail why it was not feasible to reconstruct

Cummings Street in conformance with the regulation; not only because of

increased construction costs, but primarily because of Cummings Street's

relationship to Route 35. According to the supplemental report, the current

project involved reconstructing Cummings Street as an access roadway for the

development, and that

            [t]he existing grade is at elevation five . . . to seven . . .
            feet associated at the proposed driveway location.
            Construction of a new roadway at one . . . foot above
            the L.O.M.R. flood hazard elevation of [eight] feet in
            the AE zone5 is not practicable as it would raise the road

5
  According to FEMA, Zone AE includes "[a]reas subject to inundation by the
[one]-percent-annual-chance flood event determined by detailed methods."
Zone AE and A1-30, FEMA, https://www.fema.gov/zone-ae-and-a1-30# (last
updated March 27, 2018).
                                                                             A-1745-18T1
                                        18
            above the existing grade by approximately [four] feet.
            This would result in excessive fill and the requirement
            for guard rails and retaining walls such that the cost
            would be prohibitive.

            Additional fill would be required to meet the AO zone 6
            requirements. Construction of the roadway more than
            one . . . foot higher than the referenced three . . . foot
            depth in the AO zone as per the L.O.M.R. reference is
            also not practical as the roadway would be
            approximately [four] feet above existing grade.

      The report also addressed N.J.A.C. 7:13-12.6(e)(1), stating (i) there would

be significant construction costs to comply with elevation requirements based

on the excessive fill and the need for retaining walls and guide rails; (ii) because

any people leaving the development would need to exit onto Route 35 at an

elevation four feet lower than the flood elevation of eight feet, the construction

costs would be excessive and disproportionate to the benefit derived; (iii) the

amount of fill needed would be excessive, at an average of four feet, to satisfy

the flood zone requirements; and that subsection (iv) did not apply.

      The report thus concluded:

            [T]he limiting elevation for ingress and egress for this
            single family development is . . . Route 35. Th[e]


6
  FEMA states that Zone AO is an area "subject to inundation by [one]-percent-
annual-chance shallow flooding . . . where average depths are between one and
three feet." Zone AO, FEMA, https://www.fema.gov/zone-ao (last updated May
23, 2019).
                                                                            A-1745-18T1
                                        19
            highway was recently reconstructed. It was not raised
            to the required level of [one] foot above the [b]ase
            [f]lood [e]levation of [eight] feet. Since . . . Route 35
            is approximately [e]levation [five] in this area, raising
            the onsite roadway to elevation [nine plus] would
            require [four feet] or more of fill, be costly and would
            serve no meaningful purpose because the highway itself
            would be inundated with flood waters during a 100
            [y]ear [f]lood event.

            For the reasons set forth above . . . it is not feasible to
            construct the roadway above the flood elevation and
            that sufficient reasons have been provided to
            demonstrate that the project meets the requirements for
            approval. The appropriate deed notification as required
            in [N.J.A.C. 7:13-12.6(f)] is offered in lieu of raising
            the roadway to [one] foot above the [b]ase [f]lood
            [e]levation.

      After reviewing RTS's application, the DEP adopted the supplemental

policy compliance statement's Route 35 flooding concerns, concluding in its

engineering report that "[i]t has been satisfactorily demonstrated in the

compliance statement, in accordance with N.J.A.C. 7:13-12.6, that it is not

feasible to elevate the travel surfaces of the proposed driveways, access ways

and internal roads at least one foot above the regulatory flood hazard elevation."

      In its arguments challenging the DEP's decision, JSTAR fails to

acknowledge the DEP's Route 35 flooding concerns, as stated in the

supplemental policy compliance statement. Since Route 35, the only road to



                                                                          A-1745-18T1
                                       20
exit the barrier island, was constructed at such a low flood hazard elevation,

raising Cummings Street is both impractical and inconsequential.

      Applying our discretionary standard of review, we conclude that the DEP

properly exercised its discretion by granting RTS an exemption based on the

negative impact that strictly adhering to the flood elevation requirements would have

on Route 35 and its propensity to flood. Under these conditions, the DEP's granting

RTS an exemption under N.J.A.C. 7:13-12.6 was supported by sufficient evidence

in the record.

                                         B.

      Next, JSTAR argues that RTS's proposed development failed to satisfy

N.J.A.C. 7:7-16.11, and JSTAR's explanation for not complying with the

regulation was insufficient. Specifically, JSTAR contends that "the setbacks of

the proposed project, particularly the front and side yard setbacks, make the

buffers provided inadequate." We disagree.

      Under N.J.A.C. 7:7-16.11(b), a development must "be compatible with

adjacent land uses to the maximum extent practicable."              In this regard,

"[d]evelopment that is likely to adversely affect . . . residential . . . uses, is

prohibited unless the impact is mitigated by an adequate buffer." N.J.A.C. 7:7-

16.11(b)(1).


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      A buffer is defined as a "natural or man-made area[], structure[], or

object[] that serve[s] to separate distinct uses or areas." N.J.A.C. 7:7-16.11(a).

The purpose of the buffer is to promote "compatibility of uses," or "the ability

for uses to exist together without aesthetic or functional conflicts." N.J.A.C.

7:7-16.11(a). "The purpose, width, and type of the required buffer shall vary

depending upon the type and degree of impact and the type of adjacent area to

be affected by the development, and shall be determined on a case-by-case

basis." N.J.A.C. 7:7-16.11(b)(1).

      As part of its EIS, RTS stated:

            The project is [a] redevelopment of a prior residential
            community that was associated with minimal buffer to
            surrounding properties due to the extensive number of
            dwelling units throughout the community (on and off-
            site). The proposed project will maintain the dune and
            beach area to ensure compatibility and avoid functional
            conflict with the beach and water to the east. Each lot
            is required to be associated with landscaping to consist
            of a minimum of one . . . tree and ten . . . shrubs or
            grasses per lot, which will provide additional buffer to
            surrounding residential lots. Landscaping and seeding
            is also proposed along the Route 35 boundary of the
            site . . . . The overall project is compatible and
            consistent with surrounding residential land use. The
            project is in compliance with [N.J.A.C. 7:7-16.11].

      JSTAR's argument before us focuses on the setback front and side yards

which, according to JSTAR, made the proposed buffer of the shrubs and trees


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inadequate under N.J.A.C. 7:7-16.11. JSTAR argues that RTS was obligated to

explain how its proposed buffers complied with N.J.A.C. 7:7-16.11 given its yard

setbacks and yet failed to do so. While JSTAR questions whether the setbacks

proposed by RTS satisfied the code's requirements, it has provided no applicable

case law or statutory authority indicating that yard setbacks are in any way

related to buffers. Applying our deferential standard of review, we conclude

that the DEP correctly determined that RTS's application was not barred by

N.J.A.C. 7:7-16.11, as is evident from the DEP's engineering report stating any

issue with buffers was "N/A."

                                        C.

      JSTAR next challenges the DEP's environmental report, which concluded that

Osborn Estates was not located on a dune, and therefore N.J.A.C. 7:7-9.16 was

inapplicable. While we, and now on appeal, the DEP, agree with JSTAR that the

regulation was applicable because of RTS's proposed construction of a walkover on

the dunes, we conclude that the DEP considered RTS's application with that

knowledge and therefore did not err in issuing the permit.

      N.J.A.C. 7:7-9.16(b) prohibits development on dunes unless the

construction "has no practicable or feasible alternative in an area other than a

dune, and that will not cause significant adverse long-term impacts on the


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natural functioning of the beach and dune system." The regulation identifies

"acceptable activities" to include "[l]imited stairs, walkways, pathways, and

boardwalks to permit access across dunes to beaches, in accordance with

N.J.A.C. 7:7-10, provided they cause minimum feasible interference with the

beach and dune system." N.J.A.C. 7:7-9.16(b)(3).

      In its EIS, RTS stated that no proposed structures would be within the

dune's limits, and that dune development would be limited to the proposed

walkover for beach access from the residences. It specified that the walkway,

which would be six-feet wide and constructed from "plank walk" or "mobimat,"

would have sand or split-rail fencing along each side of the walkway to limit

access to the dune surrounding the walkway. It also explained that the perimeter

of the dune walkover would be replanted with American beachgrass to address

any temporary disturbances from construction.

      While the DEP acknowledges that its environmental report incorrectly

concluded that N.J.A.C. 7:7-9.16 was inapplicable, the DEP considered the proposed

use of the nearby dune when it rendered its environmental report. The DEP stated

that the dune walkover was otherwise permissible, as it complied with N.J.A.C. 7:7-

9.16(b)(3), as well as additional requirements delineated under N.J.A.C. 7:7-




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10.4(f).7 Thus, even though the DEP incorrectly concluded that the regulation

was inapplicable, it granted RTS's application with full knowledge that the dune

walkover was being proposed and there was no evidence that the proposed

walkover contravened any regulation. As such, the DEP's determination to grant

RTS a CAFRA permit was not arbitrary, capricious, or unreasonable.

                                        D.

      Next, we turn our attention to JSTAR's contention that the DEP also failed to

properly apply N.J.A.C. 7:7-9.36, because it found the regulation inapplicable

and RTS never addressed it. JSTAR argues that the regulation is applicable, as

least tern, an endangered bird species, maintains a foraging habitat on RTS's

proposed site.

      Under N.J.A.C. 7:7-9.36(b),

            [d]evelopment of endangered or threatened wildlife or
            plant species habitat is prohibited unless it can be
            demonstrated, through an endangered or threatened
            wildlife or plant species impact assessment . . . that
            endangered or threatened wildlife or plant species
            habitat would not directly or through secondary impacts
            on the relevant site or in the surrounding area be
            adversely affected.




7
  NJAC 7:7-10.4(f) requires the dune walkover to not exceed six feet in width,
to not result in lowering of the beach, and to have fencing on both sides.
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                                       25
      Here, JSTAR's N.J.A.C. 7:7-9.36 contentions are belied by the record.

According to JSTAR, a report prepared on its behalf concluded that RTS failed

to conduct a species survey at all and further failed to explain "how the at grade

walkover and associated fencing will not have adverse impacts to [the] least tern

nesting habitat or sea beach amaranth habitat and how [these] critical habitat[s]

will be protected." However, RTS's EIS stated that while the proposed site is

home to the least tern, its habitat would "not . . . be disturbed as part of any

residential development." The EIS also detailed that RTS's proposed walkover

would likewise "have no significant adverse impacts to any critical least tern

nesting habitat."

      Moreover, Dubois, on behalf of RTS, requested that the DEP's Natural

Heritage Program provide it with "documented occurrences or critical habitat on

and in the vicinity of the site," which identified several species located off-site

in the nearby Atlantic Ocean. Dubois determined that the development would

"not result in any direct or indirect adverse impacts to threatened or endangered

species population or habitat," thereby satisfying N.J.A.C. 7:7-9.36.

      Thereafter, the DEP found that because the property had not been mapped

as an endangered or threatened species habitat, N.J.A.C. 7:7-9.36 did not apply.

We agree. The findings reported by Dubois serve as substantial evidence that


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the property was not considered a critical habitat for any species. See N.J.A.C.

7:7-9.36(b). This determination is supported by the DEP's own resources, as

Dubois contacted the Natural Heritage Program to provide it with information

about nearby endangered species habitats. As such, we conclude that the DEP's

determination that N.J.A.C. 7:7-9.36 was inapplicable was not arbitrary,

capricious, or unreasonable.

                  RTS's Prohibition from Seeking Modification

     Last, JSTAR argues here, as it did in opposition to OSBCA's application, that

under N.J.A.C. 7:7-27.5, RTS is precluded from filing a modification of its

individual permit and therefore is required to file an entirely new application because

of its failure to include the Cummings Street property as part of its public notice.

We conclude that this argument is without sufficient merit to warrant discussion in

a written opinion. R. 2:11-3(e)(1)(D). See JSTAR I, slip op. at 30-31.

     Affirmed.




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