Public Access to Beaches and Other Waterways – Pending Legislation

In 2007 the New Jersey Department of Environmental Protection (NJDEP) adopted Public Access Rules which sought to expand its authority over public access to beaches and other tidal waterways (bays, streams, lagoons: waterways now or formerly flowed by tide or influenced by tide).  The regulation (39 N.J.R. 5222(a)) provided, among other things, that municipalities must allow public access to tidal waterways and their shores “at all times,” unless the municipality obtains the NJDEP's permission to close the area during “late night hours” based on “unique circumstances” that threaten “public safety” or during other times for reasons such as “exigent circumstances.  N.J.A.C. 7:7E-8.11(f).  Other sections of the new rules required any municipality that seeks an appropriation from the “Shore Protection Fund” to enter into a “State Aid Agreement” with the NJDEP that, among other things, obligates the municipality to provide additional parking spaces and restroom facilities in proximity to the oceanfront as specified by the Public Access Rules and NJDEP directives.  N.J.A.C. 7:7E-8.11(p)(7)(v); N.J.A.C. 7:7E-8A.2(c)(2)(i).  The rules also require the municipality, if necessary, to acquire land, including by exercise of the power of eminent domain, in order to provide such additional parking spaces and restroom facilities.  N.J.A.C. 7:7E-8.11(p)(7)(i)(l).

The Borough of Avalon brought suit against the NJDEP to set aside the new rules arguing (a) that the Legislature had not delegated any authority to the NJDEP that would preempt or supervise a municipality’s obligations to its public lands and beaches, and (b) that the provision that disallowed the municipality’s receipt of Shore Protection Funds, if the municipality failed or refused to install restroom facilities at least every one half mile, was not supported by existing legislation or the Public Trust Doctrine.  The Court agreed and declared the regulations invalid.  (Avalon v. NJDEP, 403 N.J. Super. 590 (App. Div. 2008) certif. denied 199 N.J. 113 (2009).

In response the NJDEP embarked upon another round of rulemaking, culminating in the 2012 adoption of new Public Access Rules (44 N.J.R. 2559(a) (11-5-2012).  The Hackensack Riverkeeper and the N.Y./N.J. Baykeeper brought suit against the NJDEP  (443 N.J. Super 293 (App. Div. 2015) arguing that the agency did not have the legislative authority to, among other things, (A) mandate municipalities adopt public access plans and (B) mandate public access across private property, both residential and commercial.  The Appellate Court agreed, striking the rules, and declaring the power to manage lands held in public trust is reserved to the Legislature.

The Legislature thereupon enacted P.L. 2015, c. 260 effective January 19, 2016, which, among other things, amended N.J.S.A. 12:5-3 regarding required approvals for waterfront development, that allowed the New Jersey Department of Environmental Protection to require as a condition for approval of a waterfront development permit on-site public access to the waterfront and adjacent shoreline, or off-site public access to the waterfront and adjacent shoreline if on-site public access is not feasible.

Thereafter Senate Bill 2490 was introduced in this legislative session along with its companion Assembly Bill 4092 seeking to authorize the NJDEP to adopt rules that would require owners of private land to grant access to adjoining public waters upon the land owner’s application for a CAFRA permit, Waterfront Development Permit, Wetlands Act Permit, Flood Hazard Control Act Permit or “any other law” as a condition of approval.  A replacement of a worn out bulkhead, for example, could trigger the obligation to grant to the public vertical access from the public street to the waterway and horizontal access along the waterway on the private citizens’ side and back yard.

The trouble with the Bills is that they violate the New Jersey and United States Constitutions which provide that private property shall not be taken for public use without just compensation.  The U.S. Supreme Court, when reviewing such a schema in California, has noted that:

“That is simply an expression of the Commission's belief that the public interest will be served by a continuous strip of publicly accessible beach along the coast. The Commission may well be right that it is a good idea, but that does not establish that the Nollans (and other coastal residents) alone can be compelled to contribute to its realization. Rather, California is free to advance its “comprehensive program,” if it wishes, by using its power of eminent domain for this “public purpose”.  Nollan v. California Coastal Comm'n, 483 U.S. 825, 841–42 (1987).”

The Bills have not been amended to provide for just compensation for the taking of private rights despite the constitutional requirement that the State do so.

Author:  Edward C. Eastman

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