New Jersey property owners do not need to show that their home is damaged or decayed in order to qualify for a flood hazard permit to replace it, a state appeals court has ruled.
The court upheld the state Department of Environmental Protection’s (DEP) granting of a permit known as a GPC 5 to Kenneth Nicosia to rebuild a single-family beachfront home and then refusing to rescind the GPC 5 after neighbors on abutting properties in Mantoloking complained.
Nicosia’s neighbors in the small Ocean County community appealed the DEP denial of their request that the permit be rescinded. They argued that the permit should be rescinded because the written notice they received of Nicosia’s permit application was deficient and because the DEP regulations should be construed to require a GPC 5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.”
On April 13, 2023, Nicosia mailed notice to all owners of property within 200 feet of his property. The notice advised that persons “may provide comments concerning the proposed development and site” through “written comments within 30 calendar days.” The following day, Nicosia filed an application with the DEP for a GPC 5. The DEP automatically issued the permit the same day.
A three judge panel of the appellate division of the Superior Court concluded that the GPC 5 notice did not violate any statutory or regulatory provisions, nor was it constitutionally deficient. They also deferred to the DEP, finding that its granting of the permit was reasonable under the regulations.
The judges noted that third party objectors have limited constitutional interests in participating in the procedures used for DEP permitting and they recognized that the policies underlying the GPC 5 program strive to minimize delay. The judges found that the basic elements of notice and an opportunity to be heard were met by GPC 5 process.
“A key facet of the permit-by-certification program is to enable property owners who abide by the rules to move ahead with their construction activities expeditiously, and not get bogged down with bureaucratic delays and unwarranted litigation burdens. Indeed, we can take judicial notice that such expediency became especially important in recent years as New Jersey shore communities were rebuilt in the aftermath of Superstorm Sandy. If, as here, an affected third party has a valid objection to the permit, it does not have to wait a full 30 days to voice its concerns and take action,” the court commented.
In addition, although the court said the pertinent regulations are “poorly worded and punctuated,” it nevertheless concluded that the DEP “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.”
The court noted that the Flood Hazard Area Control Act (FHCA) “confers broad authority” on the DEP to protect the “safety, health, and general welfare” of the public by marking flood hazard areas and subjecting them to land use regulations.
The court also noted that FHCA regulations provide for automatic approval of a GPC 5 in certain situations. The GPC-5 regulations authorize the reconstruction, relocation, expansion, and/or elevation of a lawfully existing building: According to the rules:
“Reconstruct” means to patch, mend, replace, rebuild and/or restore a lawfully existing structure to a usable condition after decay or damage has occurred, in which 50 percent or greater of the structure is replaced and/or the size, shape or location of the structure is altered.
The neighbors contended that the home was in good condition before its demolition, arguing a GPC 5 was therefore inappropriate because a permit is allegedly only available to restore or replace damaged homes.
The court considered whether the definition of a “reconstruction” requires GPC 5 applicants to prove that a lawfully existing structure is not in usable condition due to either “damage” or “decay.” The court said DEP’s interpretation that such proof is not necessary is reasonable.
“Although the question is not free from doubt, we construe the agency’s regulation in the manner it has interpreted it. We do so mindful of the agency’s expertise within the zone of its statutory responsibilities,” the opinion stated. “Although deference is not warranted on pure questions of law, courts generally “afford substantial weight to an administrative agency’s own interpretation of its delegated functions.”
The judges stressed that nothing in their 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.
Topics Flood
Was this article valuable?
Here are more articles you may enjoy.
Trigger Warning: Cyber Policy Wordings to Impact Coverage for Tech Outage 
Hurricanes Get the Headlines But Inland Flooding Tops the Disaster List 
Morgan & Morgan Vows to Fight Proposed Class Action on ‘Botched’ Injury Claims 
Nationwide Plans 5% Reduction in Employee Headcount 
