Jaylin, a developer, has proposed development of just under 100,000 square feet of retail space and 570 parking spaces on 43-acres of threatened species habitat at the border of Toms River and Manchester Townships. The current plans are the latest version of big box development of this site, which has been in dispute since 2009, when the developer proposed a huge Walmart super-store. Walmart has long since changed its business model and is no longer involved, but Jaylin Holdings continues to seek intensive development of the site.
This property is valuable habitat for northern pine snake, Pine Barrens treefrog and Barred owl, all species that are supposed to be protected by coastal and Pinelands laws because they are threatened with extinction in New Jersey by development of their habitats. The site also serves as a sink for nutrient runoff and stormwater in an otherwise highly developed section of Toms River township. PPA and Save Barnegat Bay successfully opposed prior development proposals because they would harm or destroy rare species habitat and create too much impervious cover (building roofs, and pavement) for such a site. PPA provided the state with numerous scientific reports on the threatened and endangered species and advocated for enforcement of relevant environmental protections.
This site is in the overlap of the Pinelands National Reserve and NJ’s Coastal Zone Management Area. Under current rules, the Department of Environmental Protection, rather than the Pinelands Commission, issues state environmental permits in this overlap zone.
After our last successful legal challenge in 2020, the developer and DEP went back to the drawing board and agreed to very minor changes to the development plan, which DEP approved in May 2022. PPA and Save Barnegat Bay have again challenged this approval in the Appellate Division of the NJ Superior Court.
PPA and SBB have successfully opposed development at this site for many years. The location features extensive wetlands and is of enormous importance to Barnegat Bay. The project site provides habitat for the Northern Pine Snake, Pine Barrens Tree Frog, and other threatened species.
We have been especially outraged by the manner in which DEP has justified approving development of protected species habitats. Back in 2010, under political pressure to approve the construction of a Walmart super-store, DEP came up with the idea of letting known rare species habitats on the Jaylin site be developed in exchange for the developer buying and “modifying” other sites elsewhere in the Pinelands where these species were not living, in the hope that the same species would move into these other places in the future. The idea was unscientific nonsense in 2010, and the intervening years have only made clearer that it is based on speculation and wishful thinking.
Unfortunately, but typically, the NJ appeals court deferred to DEP in a prior appeal and said this approach to permitting development was acceptable in that case at that time. This was another lesson in how New Jersey’s courts fail the environment by refusing to hold agencies like DEP and the Pinelands Commission to the laws we have created to save our fragile resources.
Our current appeal challenges the newest DEP approval for relying on thinking that was bad at the time, but is now also outdated, since DEP simply readopted its old methodology for all species at issue. We also challenge the DEP’s treatment of wetlands protections, since the site has extensive wetlands that are of exceptional value.
Issue Location Map:
PPA has been fighting this development for close to 15 years due to its enormous value to local northern pine snake populations and to Barnegat Bay. This area of Toms River and Manchester is undeveloped in an area where much of the surrounding area is already developed. It is also located adjacent to the proposed Heritage Minerals development in Manchester.
One of many major issues with this project is the developer’s idea that parcels disconnected from the existing development and disconnected from one another can provide suitable habitat for northern pine snake. This species has an extensive foraging range and is highly susceptible to habitat fragmentation, especially by roads. The idea that the proposed mitigation is satisfactory is absurd.
PPA and Experts Positions:
2004: Jaylin applied for a CAFRA permit to allow the construction of a 203,000 square foot Walmart superstore with 1,093 parking spaces on the site.
2005: Jaylin found northern pine snakes on the site, and NJDEP found that the proposed development would directly impact the local population.
2006: NJDEP denied the application because of noncompliance with threatened and endangered plant and animal regulations and impervious cover limits, among other regulations.
2009: Jaylin submitted an amended application for a 187,700 square foot retail space with 833 parking spaces, totaling 40.5% impervious coverage on the site. This application included some off-site habitat preservation.
2010: NJDEP denied Jaylin’s CAFRA application for non-compliance with threatened and endangered plant and wildlife regulations and impervious cover limits. Jaylin requested an administrative hearing and submitted a new application with the intention of negotiating a settlement agreement. NJDEP then created and applied a new Habitat Evaluation Model to guide mitigation in the application, but did not base the model on best available science or conservation principles.
2011: NJDEP entered into a settlement with Jaylin to authorize the construction of a 189,700 square foot retail space and 833 parking spaces.
2012: NJDEP issued a CAFRA and Freshwater Wetlands General Permit authorizing the construction of the Walmart. PPA and Save Barnegat Bay appealed this permit decision.
2014: The Appellate Division of the Superior Court of New Jersey remanded the permit decision back to NJDEP, as the agency had failed to properly assess whether the development fell within a coastal center, which would change the allowable impervious cover on the site.
2015: Jaylin submitted an application to NJDEP for a Freshwater Wetlands Letter of Interpretation (LOI) for the site.
2016: NJDEP issued the requested LOI and made the determination that some wetlands on site were of exceptional resource value and some were of intermediate resource value. PPA and Save Barnegat Bay filed an appeal of this LOI.
Jaylin submitted an application for a CAFRA permit based on this LOI, which NJDEP granted.
2017: Toms River and the State Planning Commission designated this area as part of a regional center in violation of CAFRA regulations. This designation would allow an increase in allowable impervious coverage on the site, from 30% to 90%. The designation has yet to be approved by NJDEP.
NJDEP recognized procedural defects in its review of the LOI and requested a remand from the court, which was granted. NJDEP then opened the application for public comment and PPA and partner organizations submitted comments supporting classifying the entirety of the wetlands on site as exceptional resource value based on rare species occurrences on-site. Walmart withdrew from the property, and NJDEP issued an LOI classifying all wetlands on-site as exceptional resource value.
February 2018: Jaylin submitted a new CAFRA permit application for an approximately 140,000 square foot development with over 550 parking spaces.
July 2018: Jaylin withdrew the application.
2020: DEP approves another Jaylin application to develop the site. Although the footprint is scaled down somewhat, the plan is substantially similar to previous applications and presents the same environmental problems. PPA and Save Barnegat Bay appeal DEP’s approval in court.
2021: The Appellate Division remands the case back to DEP for further consideration of the issues raised by PPA and Save Barnegat Bay. Public comment is underway until May 20, 2021.
May 2022: The DEP issues a re-approval of materially identical development plans as those it agreed were defecting in 2020. The new approval does not update or reevaluate its prior reasoning for approval rare species habitat development, though it does admit there is no precedent for this kind of habitat trading scheme that would show it works or does not work.
July 2022: PPA and Save Barnegat Bay file an appeal of the latest approval in the Appellate Division of the NJ Superior Court.