By Will Parker
For fifty years, New Jersey’s Coastal Area Facility Review Act (CAFRA) has been protecting coastal resources and guiding development patterns along the shoreline. To commemorate that anniversary, this project sought to understand the law’s history to inform conversations about its impact, where it stands today and how it can be used to address current and future challenges. CAFRA’s history has mirrored 50 years of evolving public concerns including coastal industrial development and environmental impacts, and it contains threads that lead straight to present-day issues, including coastal retreat and the ever-sensitive issue of regulatory jurisdiction with regard to local land use. Forming the keystone of a suite of coastal laws and regulations making up New Jersey’s federally approved Coastal Management Program (CMP), CAFRA established a mandate for coastal planning as well as a state permitting approval process for development in coastal areas.
When CAFRA was signed into law on June 20, 1973, local and state media predicted massive and rapid industrial development on the shore. A deepwater oil port proposed by the United States Army Corps of Engineers for 13 miles off the coast of Long Branch was intended to support growing fuel needs along the east coast. The Corps further proposed that, if an alternative approach that involved smaller ports was preferred, they would best reside at the Long Branch site as well as a second site off the coast of Cape May. Echoing general public opinion at the time, New Jersey Governor William T. Cahill was quoted in the New York Times as saying “The superport sites recommended by the Army Corps of Engineers are unacceptable to New Jersey.”
The resulting CAFRA legislation was initially designed to regulate industrial facilities and sites, with controlling major residential development as a secondary consideration. In the same legislative session when CAFRA was adopted, a bill placing a moratorium on deepwater port development was also being hotly debated by the legislature. Although the moratorium bill failed, one of its sponsors (Thomas H. Kean – R, Essex County) made clear that CAFRA could do the job: “I think in the Coastal Area Facility Review Act the state has the perfect mechanism to keep out oil ports, but it really depends on administration of the law.” He also correctly assessed that implementation of the new law would determine a lot about its real impact.
During the next two decades, public concern quickly turned toward problems more familiar to the shore today—overdevelopment of residential and commercial buildings and the resultant impairment of environmental quality. CAFRA was up for the job—the very first permit denied under the program was for a 10-story, 220-unit condominium in Toms River. The project was denied due to its aesthetic dominance, traffic congestion impacts, damage to a historic property, and effects on local air quality. In 1979, a six-month period of the program reviewed by the National Oceanic and Atmospheric Administration (NOAA) saw the approval of 5,000 new residential units and receipt of only one industrial development application, for a small energy facility. Given its intended purpose of controlling industrial development, the original 1973 version of CAFRA was limited by its exemptions, including an exemption for any housing development under 25 units. Initial implementation of the law also faced challenges, with many years of NOAA reviews noting that the program had insufficient enforcement capacity and that inspectors frequently discovered permit violations in their inspections. Still, when federal legislation was passed in 1980 to strengthen the national Coastal Zone Management Program, New Jersey was identified as one of the most advanced states in coastal management. In particular, NOAA reviews from the 1980s note the progress in streamlining and combining multiple different coastal permitting processes, and proactive engagement with developers to ensure permitting was considered early in project planning.
When the first and only major amendments to CAFRA were made on July 19, 1993, they followed years of debate about reform—and a landmark storm. The December 1992 nor’easter was described as the region’s worst flooding in 30 years, and sparked intense debates about rebuilding, storm resiliency and fiscal sustainability, and even the possibility of coastal retreat. One month later, CAFRA amendments had been proposed. Those CAFRA amendments addressed many of the issues identified in a much more complex and context-sensitive piece of legislation—the 25-unit exemption was largely removed, more steady funding for administration was established, fines were increased, permits were standardized, and a much more advanced system of identifying projects was put in place, basing permit requirements on nearby development patterns, proximity to ocean waters or tributaries, presence of dunes on the property, and coordination with the State Development and Redevelopment Plan. Existing undeveloped zones were respected, dunes were preserved as natural resiliency features, and development in the most vulnerable flood zones was much more strictly limited.
The threat of industrial development provoked swift action in 1973, and the reality of storm vulnerability and limits in regulation led to the same in 1993. In such moments of crisis, calls for action are met with responsive action. Looking back proactively at 50 years of CAFRA history in the absence of an imminent threat can help us respond in a more sophisticated way to issues on the coast today.
Both today and 50 years ago, CAFRA is a forum for balancing growth with environmental protection. The 1973 law states that the coastal area should be reserved for “land uses which promote the public health, safety and welfare…,” but it also “recognizes the legitimate economic aspirations of the inhabitants of the coastal area.” CAFRA has indeed toed this line, and its success can be measured both by its denial of developments inconsistent with the policies of the Coastal Management Program as well as its impact to modify and redesign proposed developments to make them less invasive or more environmentally sensitive. One former coastal regulator commented that simply counting the number of development applications approved under CAFRA is a poor measure of CAFRA’s impact because it fails to recognize the extent to which the regulatory review process resulted in extensive and substantial changes in the pre-construction design of development projects. Many important present-day solutions to challenges on the shore, such as nature-based infrastructure and natural flood barriers, are incremental and diffuse changes which can also fit within this regulatory model and contribute to a balance between growth and environmental protection.
Despite the successes of CAFRA, it has not met every challenge. The legislation may have put fewer homes in ecologically sensitive, vulnerable, and fiscally unsustainable locations, but it has also allowed many to be constructed. Some critics indicate that protection of “public health, safety and welfare,” a primary goal of CAFRA, has not been achieved. Environmental degradation from the accumulated impacts of many small developments has been noted year after year in NOAA reviews, and homes constructed in vulnerable areas continue to endanger their residents. Finally, state and local budgets—and even federal funding—are constrained by an obligation to invest in flood protection, beach replenishment, and disaster management.
The next chapter of CAFRA’s story will be defined by existing environmental pressures, climate change, and economic pressures. Already, facility-based review like CAFRA is showing its limitations with a large cumulative impact on environmental quality resulting from many small developments. Some features of CAFRA—such as the right to rebuild, enshrined in the 1993 amendments—also have an evolving meaning as sea level rise makes the provision of services more cost-prohibitive as properties are being taken not by regulation, but by the ocean.
A changing climate also changes the meaning and role of CAFRA. While the law has helped keep people and property out of harm’s way, the frequency of flooding and severity of coastal storms and storm surge are increasing—meaning some existing development may now be located in areas which might not have been granted a CAFRA permit in today’s climate. As a permitting process, CAFRA is inherently limited to new development or substantial expansions. Other programs such as beach nourishment and flood buyouts have grown up to respond to existing development after the fact. As many parts of the state approach full build-out, with all available land either developed or preserved, CAFRA’s role may diminish.
There are also additional emerging challenges facing the coast today. The rising cost of flood insurance since Hurricane Sandy, and the real estate pressures of recent years have begun to change the makeup of the coast. With some longer-term residents being driven out by these economic forces, there may be a role for CAFRA in identifying areas for the development of affordable housing and other measures to ensure viability and equity of New Jersey’s coastal communities.
Since 1973, the need for CAFRA has evolved but remains critical. As the potential for industrial development has subsided, a huge demand for living, working, and playing along the shore has created its own challenges especially for low- and moderate-income New Jerseyans. When debating CAFRA’s 1993 amendments in the legislature, Senator Joe Kyrillos, sponsor of the amendments, reflected that the challenge of coastal regulation involved permitting “those who want to live at the shore to enjoy the resources that attracted them there without destroying those resources in the process.” Fifty years in, the challenge remains the same.
Will Parker is a first year graduate student in the City and Regional Planning Program at the Rutgers University Bloustein School of Planning and Public Policy and a member of the New Jersey Climate Corps. The author is grateful for the support and review of this piece by several experts in New Jersey coastal management.