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No Breeze for Sea Breeze ~ DEP Halts Avalon Manor Project

By Al Campbell

Neighbors, who want to preserve waterfront views, went ballistic. Lawyers went into overdrive. Phone calls were made to officials.
On Feb. 2, Kevin J. Broderick, manager of the state Department of Environmental Protection’s Land Use Regulation Program’s Bureau of Coastal Regulation, put dual dampers on the project:
• The retaining wall needs a Coastal Area Facilities Review Act (CAFRA) permit, something that can take months or years to acquire.
• Houses may be built there, but cannot connect to sewer lines.
Instead, those posh waterfront dwellings would have to rely on composting toilets or holding tanks.
Broderick added that the Feb. 2 letter was mean to “supersede all letters previously issued by the program concerning the availability of sewer tie ins” for proposed homes on Seabreeze Lane.
Officials in Middle Township and the state Department of Environmental Protection were alerted to the latest activity in a longstanding, hotly-contested development issue over an attempt by Island Bay L.L.C. to erect up to seven homes there.
Opposing factions in the matter include James MacElree of West Chester, Pa., and Island Bay L.L.C., represented by attorney Richard Hluchan.
MacElree, in 2002, a north-side property owner, and neighbors sought to prevent construction of houses across the street to protect their scenic vistas.
On Jan. 23, Hluchan wrote Broderick, citing a July 9, 2003 DEP letter that confirmed CAFRA exemption of the tract. He noted that construction was permitted above the Corps of Engineers’ jurisdictional line.
“My client is now attempting to proceed with construction of the retaining wall, as shown on the plan,” Hluchan wrote. “This retaining wall is necessary to address erosion on the site, which is an issue raised by the neighbors.”
He added that Roderick Falla, of DEP’s Bureau of Coastal Land Use and Coastal Enforcement, informed Middle Township Construction Official Jim James “that a building permit should not be issued for the retaining wall.”
He noted that Falla’s dictate “conflicts with the previous approvals issued by DEP.”
“I ask that you inform the local construction official immediately that the department has no objection to the issuance of the building permit for the retaining wall to be constructed in accordance with the plan,” Hluchan wrote.
Broderick’s Feb. 2 reply was that no retaining wall was shown on any plan on file with DEP.
He also noted that DEP is a party to litigation currently before the Appellate Division of Superior Court in the matter.
The case in point is whether DEP “has authorized sewer connections from the existing sewer line in Seabreeze Land to structures that are within 50 feet of the adjacent wetlands,” Broderick wrote.
Regarding the wetlands issue, Broderick wrote “the Land Use Regulation Program in evaluating the requirements of (a condition) finds that it erred in authorizing sewer connections to seven lots adjacent to Seabreeze Lane and Ingram’s Thorofare.”
MacElree wrote to Meers and the municipal zoning office Feb. 3, and referenced the Feb. 2 DEP action.
“None of the parcels or submitted plans meets these minimum requirements. They are illegal undersize parcels with no legal building area,” MacElree wrote.
“I respectfully request that Middle Township immediately revoke any and all zoning, sewer and construction permits issued involving (the parcels) and issue  post stop work orders,” MacElree wrote.
HOW IT BEGAN
The case began in March 2002 when Middle Township’s late Zoning Officer Carol Nicoletta, took action, based on DEP approvals, to allow the project.
Her action was based solely on zoning, since lots were of sufficient size and setbacks, to conform to local ordinances.
Part of her decision was made, based on a boundary line agreement between Island Bay Associates, and the state, signed Nov. 3, 1994, and recorded in the county clerk’s office.
It showed where the high water line was, and contained the caveat that no artificial filling “outshore of the established boundary” on state lands, be permitted.
Since bulk requirements were met by Island Bay, Nicoletta allowed the project.
In July 2003, Island Bay, via Hluchan, sought exemption from CAFRA for the tract on which 11 sewered single family homes.
The DEP responded, at that time, and said it would allow “no more than seven single-family homes” on the lots that were “exempt from CAFRA for an additional period five years,” ending Dec. 29, 2008.
That DEP permission included that the seven homes be sewered.
A prime issue is uncluttered views of Ingram’s Thorofare along the Intracoastal Waterway by property owners to the north.
The parcel lies on the water, north of the high-rise bridge on Avalon Boulevard.
A gazebo is visible on the tract, surrounded by tall phragmites.
Another hurdle the developer faced was prohibition of constructing anything in the high tide line, as established by the U.S. Army Corps of Engineers.
Before proceeding, Island Bay had to record a “conservation restriction” for all wetlands on the tract.
It seemed DEP was satisfied, and indicated no further approvals would be required from the agency prior to the beginning of construction.
In the interim, Nicoletta passed on, and John Ludlam, who retired this year, became zoning officer.
One of Ludlam’s concerns in 2004 was confirmation from DEP that the existing high water line was considered as the boundary under the boundary line agreement.
To support that, Hluchan cited a Sept. 9, 2004 survey by Steven Martinelli of the Aqua Terra firm.
In November 2004, Hluchan made application for zoning permits for six lots, which had been combined from the original nine lots on the parcel.
On Nov. 22, 2004, Kathleen Meers, municipal director of Sewer and Water, indicated sewer permits would be issued for each of those lots.
At that time, only five homes were to be permitted on the parcel.
In April 2005, after Ludlam’s decision, 10 Seabreeze Lane residents filed an appeal to the Zoning Board of Adjustment.
At a special board meeting, April 7, 2005, MacElree’s attorney, David DeClement of Pitman, and an environmental consultant appeared represented MacElree while Hluchan appeared on behalf of Island Bay LLC.
Attorney Vincent Lamanna of Avalon appeared on behalf of William and Judith Young, adjacent property owners on Seabreeze Lane.
Ludlam was represented by township Solicitor James Pickering Jr.
The board upheld Ludlam’s actions, since all applicable criteria had been met to allow building to begin.
Subsequently, MacElree filed suit in Superior Court to overturn the zoning board’s action in upholding Ludlam’s decision.
Contact Campbell at (609) 886-8600 Ext 28 or: al.c@cmcherald.com

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