AVALON — Governing body here feels it is running the gauntlet between Department of Environmental Protection and developers in upholding its Beach Protection Ordinance.
After several years of lawsuits to maintain its ordinance to protect high dunes, council Aug. 26 introduced an amended Beach Protection Ordinance, to eliminate the blanket prohibition of pools in the R-1AA district in the high dune area.
“We cannot continue to operate this way. It’s not fair to the Planning Board, council and the taxpayers because of litigation with this ordinance,” Council President Charles Covington said during an Aug. 12 discussion. “It has seen better days in what it hopes to achieve.”
The 1994 State Aid Agreement states no swimming pools are to be permitted in the high dunes. However, in Coyle Connelly’s Seven Mile Island LLC application to expand and add a pool, the DEP approved a Coastal Area Facility Review Act (CAFRA) permit, undermining its own State Aid Agreement, Covington said.
“We need to get out of this quagmire agencies have put us in,” Councilwoman Nancy Hudanich said.
She said council is caught in a Catch 22, because the DEP mandates no pools while granting CAFRA permits for such.
Avalon prevailed in two separate Appellate Division cases concerning the protection ordinance and R-1AA high dunes zone in cases that challenged the validity of the ordinance and asserted that the borough’s ordinance is preempted by CAFRA.
Shortly after council approved Seven Mile Island’s expansion but denied a pool, Connelly won an appeal to construct the pool.
Nine out of 11 homes in the R-1AA zone already have pools in the dunes.
Council introduced an amended Beach Protection Ordinance Aug. 26, which will be subject to DEP approval and potentially an amendment the 1994 State Aid Agreement.
Applicants would still be required to get a CAFRA permit from DEP and approval by council. Council will ask the DEP to absolve the borough for any harm or penalty for approving a pool if a CAFRA permit is granted.
“Beach Protection Ordinance is the only vehicle we have to guarantee protection of those dunes,” Planning Board Chairman Neil Hensel said.
Structures would still be filtered through criteria in the Beach Protection Ordinance, which Covington said is stricter than a CAFRA review.
“This ordinance will not arbitrarily allow pools either,” Covington told the Herald. “It will require strict justification to have a pool as it does to have any other structure in the dunes. We need to govern by legislation, not litigation.”
One borough resident told council he was “dismayed by the discussion outcome” because the borough has “the right to protect the environment, even if it’s the last one left.”
“This would put a chink in the armor that could be played by developers and individuals.”
He said litigation to uphold the ordinance is “taxpayer money well spent.”
Council will have final vote on the ordinance Sept. 9.
Contact Truluck at (609) 886-8600 ext. 24 or at: ltruluck@cmcherald.com.
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