Beach Development is Prohibited. What Are the Exceptions?

Development is prohibited on beaches (N.J.A.C. 7:7E-3.22(b)).  That said, it is important to know just what the State of New Jersey designates as a beach.

According to the Coastal Zone Management Rule (N.J.A.C. 7:7E-3.22), beaches are generally sloping areas of sand or other unconsolidated materials found on all tidal shorelines, including the ocean, bay and river shorelines that extend landward from the mean high water line to a man-made feature or a dune.

The only exceptions to the prohibition of development on beaches are for development that has no prudent or feasible alternative in an area other than a beach, and that will not cause significant adverse long-term impacts to the natural functioning of the beach and dune system, either individually or in combination with other existing or proposed structures, land disturbances, or activities.  Examples of acceptable activities are:

  1. Demolition and removal of paving and structures;
  1. Dune creation and related sand fencing and planting of vegetation for dune stabilization, in accordance with N.J.A.C. 7:7E-3A;
  1. The reconstruction of existing amusement and fishing piers and boardwalks;
  1. Temporary recreation structures for public safety such as first aid and lifeguard stations;
  1. Shore protection structures which meet the use conditions of N.J.A.C. 7:7.11(g);
  1. Linear development which meets the Rules on Location of Linear Development (N.J.A.C. 7:7E-6.1);
  1. Beach maintenance activities which do not adversely affect the natural functioning of the beach and dune system, and which do not preclude the development of a stable dune along the back beach area. These activities include routine cleaning, debris removal, mechanical sifting, maintenance of access ways and Department approved dune creation and maintenance activities;
  1. Post-Storm beach restoration activities involving the placement of clean fill materials on beaches, and the mechanical redistribution of sand along the beach profile from the lower to the upper beach. These post-storm activities, which are difference than routine beach maintenance activities, must be carried out in accordance with the standards found at N.J.A.C. 7:7E-3A.

The State takes the position that N.J.A.C. 7:7E-3.22(a) makes no distinction regarding size in defining the term beaches.  See Muir v. N.J.D.E.P., OAK Docket No. ESA-02956-98S, Agency No. WFD-1507-93-0083.4, wherein the residential lot having frontage of approximately 138 feet on Barnegat Bay containing a sloping sand shore with pockets of sand constituted a beach.  As such the 138 feet of area containing pockets of sand was deemed “not so small or devoid of value as to make their protection unreasonable”.  Rather than protect the residential lot from further erosion by a bulkhead with fill behind it, the N.J.D.E.P. decided that a revetment would be a reasonable way to protect the pockets of sand rather than by filling them to build a bulkhead.

Author:  Edward C. Eastman

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