• Atlantic County: September 30, 2013
• Bergen County: September 30, 2013
• Cape May County: October 31, 2013
• Essex County: August 16, 2013
• Hudson County: July 31, 2013
• Mercer County: May 30, 2013
• Middlesex County: July 26, 2013
• Monmouth County: July 26, 2013
• Morris County: July 31, 2013
• Ocean County: August 16, 2013
• Passaic County: July 31, 2013
• Salem County: August 30, 2013
• Somerset County: July 12, 2013
• Union County: TBD

Any property acquired with Green Acres funds is automatically part of the ROSI.  There are strict limitations on use of properties on the ROSI and on divestiture of those properties.

Ocean County argued that there was no conclusive evidence that Green Acres funds were used for purchase of any of the 934 acres and that the use of the property was not for recreation or open space.  Ocean County made an application in 2009 to remove the Air Park from ROSI pursuant to DEP Regulatory Procedures and the court noted that the burden lies with the county to provide proof that placing the property on the ROSI was in error.  DEP concluded that all of the parcels acquired were to be used as part of the Air Park and that these the properties should not have been listed on the ROSI since the Air Park use does not qualify as a recreation or conservation use.  A public hearing took place in 2010 and a decision was made by DEP on May 9, 2011 granting the County’s application and an appeal was filed.  The County had to overcome a rebuttable presumption that since the property was included in the ROSI, it was acquired with Green Acres funds and encumbered with restrictions on its use.

The Appellate Division upheld DEP’s determination that there was a bona fide error in the County’s ROSI, since the property was being used as an airport, not recreation or open space use.  The court noted the strict scrutiny that DEP must give to such applications for removal from the ROSI, however, commented that the determining factor was the actual use of the land.  Of note is that the County commenced this removal process in 2009 culminating in this court’s decision four (4) years later.

The panel will focus on how, under the Sandy Action Plan, property owners will be able to finance the rebuilding and repairing of their residential properties. The panel will feature D.C.A. Commissioner, Richard Constable, III, as keynote speaker and is sponsored by the New Jersey Builders Association. For more information, or to register, please click here.

1. Public vs. Private Beach – Oceanfront homeowners in Brick Township typically have title that runs to the mean high water line, and traditionally this has been treated the same as all other privately-owned property in Brick Township.

a.  Public Trust Doctrine
In New Jersey, land flowed by the tides is subject to the public trust doctrine, a common law principle dating back to ancient Roman times.  As interpreted by New Jersey Courts with regard to oceanfront lands, the public has a right of access to, and cannot be excluded from, the “wet sand” (area between the mean high and mean low water lines) and the water area itself.  “In addition, limited use of the upland owner’s dry sand is permitted under the public trust doctrine when it is ‘essential or reasonably necessary for enjoyment of the ocean.’”.  Long Branch v. Liu, 203 N.J. 464, 475 (2010), quoting Matthews vs. Bay Head Improvement Assn., 95 N.J. 306, 325 (1984).  Other than such limited incidental use, the public may generally be excluded from the privately-owned dry sand beach in residential areas.

The mean high water mark is generally the boundary line that divides private ownership of the dry beach for public ownership of tidally flowed lands.  That boundary line is not fixed, but fluctuates over time through processes known as accretion and erosion respectively, the gradual enlargement or contraction of the dry sand beach.  By contrast, the sudden and perceptible loss or addition to the land by the action of the water or otherwise, a process known as avulsion, does not result in the shifting of the property line.  In Long Branch v. Liu, the Supreme Court of New Jersey was called upon to decide whether the enlargement of the beach through an Army Corps of Engineers shoreline protection project should be deemed to extend the privately-owned beach to the new high water mark.  The Court said no:  the expansion of the shoreline through a government funded beach replenishment project constitutes avulsion and because the newly created beach is on land the State already owned (i.e., lands formerly seaward of the mean high water line), these lands fall within the public trust doctrine.

The bottom line is that if the shore protection project in front of a homeowner’s property will extend the width of the beach seaward of the traditional mean high water line, that new beach area will be owned by the State and subject to the public trust doctrine.  In this regard, it is irrelevant whether the easement a homeowner signs makes reference to the public trust doctrine or not.

b. Easement for Public Beach

Second, the Easement specifically gives the government the right to “[c]onstruct, preserve, patrol, operate, maintain, repair, rehabilitate and replace a public beach . . . together with appurtenances thereto . . .”  The Easement also gives the government right to “perform any other work necessary in incident to . . . the Manasquan Inlet to Barnegat Inlet Storm Damage Reduction Project together with the right of public use at access.”  (Emphasis supplied).

In other words, even if there were no such thing as the public trust doctrine, by the terms of Easement any beach area in front of a homeowner’s property would become a “public beach”, subject to “the right of public use and access”.

2. Temporary Structures – The Easement would also give the government the right to “[e]rect and remove temporary structures.”  While the apparent intent may be to allow temporary structures incident to the dune construction work, the language is not so limited.  For example, a portable restroom facility installed each Memorial Day and removed each Labor Day would be a “temporary structure.”  Such temporary restroom structures would also enhance the “right of public use and access” granted by the Easement, and could be regarded as “appurtenances” to a “public beach” as allowed by the Easement.  On the other hand, this provision may be mitigated by paragraph 6, which states:  “Structures not part of the project are not authorized.”  Apparently this refers to the Barnegat Inlet Storm Damage Reduction Project, as defined in the December 30, 2003 Chief’s Report issued by the Department of the Army.  Of course, if the intent of paragraph 6 is to exclude public restrooms, boardwalks, roads, parking areas, concessions and the like, the Easement could easily be drafted to come right out and say so.

Also, the Easement only governs what can occur on the homeowner’s property and, as stated above, the newly formed beach area east of the former mean high water line will be State-owned.  Nothing in the Easement limits the government’s use of this newly-created State-owned land to structures that are part of the “project”, and the Easement would not preclude the government from putting temporary or permanent structures on that land.

3. Assignable Easement – The Easement states that “in the event that the Township of Brick or the State of New Jersey shall become merged with any other geo-political entity or entities, the easement granted hereby shall run in favor of the surviving entities.”  That provision seems reasonable.  The Easement also provides that it is “irrevocable, assignable, perpetual and permanent.”  While it may be reasonable for the Township or State to have the right to assign their rights to another governmental agency, as worded the government could decide to close a future budget gap by a lease or sale (both of which are types of assignment) of some or all of their Easement rights to a private party.

4. Other Issues

• Land area subject to the easement – While Brick Township is in the process of establishing a “dune line”, that line has not yet been formally established or surveyed.
• Consideration of Easement in assessing value – While a “whereas” clause states that the Township shall consider the Easement in establishing the full assessed value of a property for real estate tax purposes, the provision is vague and appears only in a “whereas” clause as opposed to in the operative provisions of the Easement.
• Perpetual and permanent easement – While the Easement may be released, upon request, if the Project does not begin by September 30, 2025, there is no provision providing for abandonment of the easement should the government determine not to reauthorize the project in the future.
• Private dune overwalk structure – The Easement “reserves to the Grantor the Grantor’s heirs, successors and assigns the right to construct a private dune overwalk structure in accordance with any applicable Federal, State or local laws and regulations, provided that such structures shall not violate the integrity of the dune in shape, dimension or function.”  Yet there is nothing in the Easement that precludes the government from adopting law or regulations that would prohibit, or make it impractical, to construct such an overwalk structure.  Also, the Easement only reserves the right to construct an overwalk structure on the homeowner’s property.  If, for example, the new dune will extend east of the former mean high water line, nothing in the Easement gives the homeowner the right to construct an overwalk onto the newly-created State-owned dune area.
• Elimination of all other rights in the Easement area – The provision allowing the government to limit public access to the dune area, together the right to remove all vegetation, and the Grantor’s agreement “not to grade or excavate within the Easement area or to place therein any structure or material other than a dune walkover” could be used to prevent a property owner from planting or maintaining dune grass or doing anything whatsoever in the Easement area.
• Municipality to maintain beach – While non-objectionable, this provision guarantees very little.
• Character of property – The Easement provides that “nothing herein is intended or shall be deemed to alter the boundary lines or setback lines of the Property” and that “to the extent allowed by applicable law, the Lands burdened by the easement herein described shall not be excluded from the calculation of the minimum square footage requirement when construing applications under the Zoning Ordinance of the Municipality.”  While these provisions are to the homeowner’s advantage, the wording could be strengthened by eliminating the qualifications.
• Enforcement at the discretion of the Grantee – The Easement provides that enforcement of the Easement is at the discretion of the Grantee and that any forbearance by the Grantee in exercising its rights in the event of a violation by Grantor shall not be deemed a waiver by Grantee in the future.  Again, while unobjectionable, why not make that provision mutual?  That way, for example, any delay by the homeowner in seeking to put in a dune overwalk structure would not be deemed a waiver of the right to do so.
• Severability provision – The Easement provides that if any provision of the Easement or its application to any person or circumstances is found to be invalid, the remainder of the Easement and its application to other persons and circumstances would not be affected.  Such severability provisions are common and not per se objectionable.  As a practical matter, however, the provisions in the Easement that reserves rights or benefits to the Grantor may be more likely be held invalid in future years than the provisions benefiting the government.

5. Caveats – We have all heard public officials say that all the government wants to do with these Easements is construct the dunes and extend the beach, and that the government is not looking to put in boardwalks, parking, bathrooms or anything else.  This is not intended to question anyone’s sincerity or to suggest that anything in the foregoing “parade of horribles” is likely to come to pass.  But elected officials come and go; political winds shift.  An Easement that is “irrevocable”, “permanent”, and a “servitude running perpetuity” will last a long time.

NJ DEP adopted emergency regulations to facilitate shore rebuilding as previously reported on April 22^nd’s Environmental Law Blog by Michael Gross, Chairman of the Environmental Law Department. See http://www.njenvironmentlaw.com/emergency-coastal-regulations-issued-by-njdep

On April 25, 2013 the NJ State Senate Environment Committee (SEN) passed a package of “Sandy” bills. Unfortunately the Assembly Environment Committee (AEN) took up only two of the bills at its May 13^th meeting.

S2598 (Smith/Whelan) Passed SEN 5-0 & AEN 6-0.  Flood elevation standards.  Creates limited exemption from local land use restrictions to allow existing structures to be raised to new FEMA base flood elevations.

S2599 (Whelan/Greenstein)  Condemned beach front. Passed SEN 5-0.  Requires consideration of increased value due to dune construction in determining compensation provided for condemned beachfront property.  Is this a preemptive effort to combat the NJ Supreme Court decision in the Harvey Cedar’s case to determine whether homeowners should be paid for their lost oceanfront views due to dune construction?

S2600 (Whelan) Shore protection priority list criteria.  Passed SEN 4-1 & AEN 4-1.  Establishes criteria and requirements, including public meetings, for shore protection project priority list and funding from shore protection fund.  This bill may meet Governor Christie’s red veto pen if it reaches his desk as unnecessary additional bureaucracy.

S2601 (Smith) Atlantic Ocean beaches.  Passed SEN 4-0.  Permits the Republican majority counties of Monmouth, Ocean and Cape May to assume control and responsibility for operation and maintenance of beaches bordering the Atlantic Ocean.  Thanks but no thanks.  This bill is an improvement over the perennial bills requiring the State of NJ to assume control.  This is a good bill to foment controversy between home rule and county freeholders.

S2602  (Smith) Dune excavation.  Passed SEN 3-2.  Permits grading or excavation of dunes without emergency CAFRA permits.  This bill could help facilitate quick response to anticipated storms.

S2680 (Sacco/Kyrillos) Piers allows development.  Passed SEN 5-0.  This amended bill would permit existing piers on the Hudson River to be developed for residential purposes.  The recent adoption of the FEMA advisory base flood elevation maps by Governor Christie’s executive order put many piers in the “V” zone and now conflicts with decade old NJ DEP regulations.  New development or redevelopment into residences would still have to meet the base flood elevation requirements and all other laws.

These bills and other proposed legislation are being tracked by the Environmental Law Department and Government Affairs Department of this law firm for its clients, the business community and interested parties in the State of New Jersey.

Media included in the requirement are soil, groundwater, surface water, sediment and air.  There is not an exemption where contamination has migrated onto a site from another contaminated property.  However, under current NJDEP regulations, responsible parties will not have liability where it is demonstrated that contamination is from an off-site source.  The Department is currently developing a Guidance Document to address proofs necessary to document off-site sources.

Significantly, the new Guidance Document also allows professionals to use “professional judgment” to determine whether sufficient information exists to prove the nature and extent of contamination under applicable NJDEP regulations.  The State has also reconfirmed that delineation of contamination to the “clean zone” is needed in order to justify issuance of final approval in the form of a Response Action Outcome.

The DEP granted an exemption for the substation subject to certain conditions, including Highlands Council approval of a landscaping plan that uses native plant species to screen the substation from adjacent homes and roadways and complement the character of an existing historic district.  The Highlands Council’s review went far beyond that, and concluded that the substation project was not consistent with the goals and purposes of the Highlands Act. The DEP rejected the Highlands Council’s recommendation and upheld the exemption.

A local citizens group appealed, and the Appellate Division upheld the DEP’s decision. Emphasizing that it is the DEP, not the Highlands Council, that has authority to decide Highlands Act exemptions, the court agreed with the DEP that “the Council exceeded its mandate in issuing a ‘recommendation’ that the exemption did not apply.”  The court concluded that the DEP was not required to defer to that recommendation.

On the other side of the battle, homeowners complain that the higher dunes could block their views of the ocean.  Other homeowners have concern over a potential taking of property without just compensation, contrary to the municipalities’ position that the dunes provide a public benefit and a benefit to the homeowner.  Some homeowners have concern that the grant of the easement could eventually result in the construction of restrooms, boardwalks and other public facilities on their land, despite the fact that municipalities have expressed that the easements only permit the construction of dunes.

A bill, A1521, recently advanced through the State Assembly that would strengthen the decision making authority of administrative law judges.  The bill, which passed 73-1, provides that the decision of an ALJ in contested administrative proceedings would be final upon the filing of the decision with the agency for certain agencies including the DEP and Department of Community Affairs.  The DEP Commissioner and other affected agency heads would not have, as they currently do, authority to modify the ALJ’s final decision or reject it outright.  The bill advances goals of the Christie Administration’s Red Tape Review Commission to promote common sense principles in the administrative and regulatory process.  An identical Senate bill has not yet been acted upon and is still in Committee.  However, the Assembly’s passage of the bill is a positive step toward restoring faith in the legitimacy of the administrative process.