AVALON — A state appeals court decided Aug. 6 that a 40-room beach house and swimming pool built for a Pennsylvania potato chip magnate in the dunes at 53rd Street could remain standing despite public opposition and poor handling of the matter by the state Department of Environmental Protection (DEP).
Appellate Division Judges Mary Catherine Cuff, Marie Lihotz and Marie Simonelli were not persuaded by the arguments of Save Avalon’s Dunes (SAD), a group of borough taxpayers who challenged DEP permits for the project.
The court said the appeal was filed too late.
Michael Rice, president of Utz Quality Foods of Hanover, Pa., applied to the DEP in February 1999 for a Coastal Area Facilities Review Act (CAFRA) permit to construct the home. The application was denied on June 10 of that year when the DEP said “the proposed development will cause disturbance to the dune.”
The denial was appealed and the DEP negotiated a settlement with Rice that resulted in a modified site plan that would cause less of a disturbance to the dunes.
The settlement was executed on April 26, 2001 with a stipulation that DEP provide notice of the action. The DEP, however, failed to fulfill the notice provision
In November 2001, Rice notified Avalon’s zoning/planning board of the DEP settlement and subsequently filed an application with the board for their construction project.
The board granted preliminary approval in June 2002 and final approval in January 2004. Construction commenced in March 2006.
The taxpayer group filed suit in September 2006 seeking to invalidate the DEP settlement and to stop construction of the home.
In January 2007, Atlantic County Civil Court Judge Stephen Perskie transferred the matter to the Appellate Division, which has jurisdiction over state agency decisions .
SAD maintained in its appeal that the DEP settlement was informal and not a final agency action; the DEP made no findings of fact to support its CAFRA permit; the action violated Avalon ordinance; and the time to appeal had not expired because the DEP failed to provide notice of the action.
Attorneys for the DEP and Rice asserted that the appeal was untimely because the 45 days allowed to seek appellate review of agency decisions expired in 2001, long before SAD appealed.
In the end, the appeals court sided with Rice, but admitted the DEP blundered this application.
“We agree the DEP failed to engage in the necessary fact-finding when issuing the Rice’s CAFRA permit,” the court’s opinion stated. “Had the DEP’s handling of this matter not been so negligent, resolution could have been achieved long ago.”
The appeals court also found that the public had more than enough time throughout the state and municipal approval process to address any concerns.
“SAD and its taxpayer members had ample opportunity to file an action long before it chose to do so,” the court wrote.
“The appeal is, therefore, dismissed as untimely.”
Rice’s attorney agreed.
“The court got it right,” said Richard Hluchan, of Voorhees law firm Ballard, Spahr, Andrews & Ingersoll. “You can’t challenge a permit five years after its granted.”
Contact Hart at (609) 886-8600 Ext 35 or at: jhart@cmcherald.com
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