Avalon Wins Beach Access Case Against DEP

TRENTON — Every coastal town in the state can now shred its State Aid Agreement as Avalon prevailed in its landmark lawsuit against the state Department of Environmental Protection.
A decision released by the Appellate Court Nov. 19 stated the DEP’s now-invalidated rules “are not statutorily authorized and infringe upon the statutory powers of municipal government.”
The decision not only closed the doors to an appeal by DEP to Supreme Court, but also enables coastal towns to challenge other DEP rules currently in place.
“This has opened up a can of worms on a bureaucracy that’s been out of control for the past four or five years,” Avalon Mayor Martin Pagliughi said.
He said neighboring Stone Harbor, a “friend of the court” in the case, had brought up some issues unique to their borough during arguments Sept. 16 and the borough is likely to further challenge DEP mandates.
Pagliughi said the court admitted DEP had taken on issues out of the scope of its responsibility.
“We’re hopeful that the DEP, especially with new leadership, will be more diligent with its State Aid Agreements and public policy regarding beach access and other environmental policies affecting taxpayers in the years to come,” he said.
Deputy DEP Commissioner Mark Borello will assume Commissioner Lisa Jackson’s position as she leaves office as Gov. Jon Corzine’s pick for chief of staff.
Pagliughi said in his 21 years as an elected official, through four governors and five DEP commissioners, relations with the DEP have never been this difficult.
The case stemmed from Avalon’s challenge of a mandate from the DEP that would have forced it to make more parking and public restrooms available in order to comply with dictates on which Shore Protection Funds are allocated.
Avalon officials maintain that the lawsuit was not an appeal. Since the borough never adopted the new rules, they could not appeal them. The borough has challenged these rules since they were introduced in December of 2006.
In 2007, the DEP adopted articles, known as Public Access Rules to beaches and other tidal waterways. One of the rules was that any municipality located along a tidal waterway must allow 24/7 public access to those waterways and adjacent shores unless a unique circumstance threatened the public safety.
In the case of a safety threat, municipalities would then need to gain DEP approval to close the beaches.
“Avalon experienced a very difficult situation during the last week of August where we had to make daily decisions on beach closures due to medical waste that came ashore,” Pagliughi said.
The DEP obligated municipalities to provide additional parking and restroom facilities every one-half mile along beaches and waterways. The rule required a municipality, if needed, could use the power of eminent domain to provide the obligatory parking and restrooms.
Avalon, which has about four miles of oceanfront, sought funding for its eroded north-end beaches. Because of those rules, it challenged the right of the DEP via compliant to the court’s Chancery Division. Arguments went before Superior Court Judge Stephen Perskie and the complaint was transferred to the Appellate Court.
“We knew from day-one that the rules were illegal. The rules made no sense when they were introduced, and the Appellate Division agrees,” Pagliughi said.
In addition to Stone Harbor, Cape May County also signed on as a “friend of the court” in the matter and also argued the case with Avalon Sept. 16.
“By invalidating DEP’s public access rules, the Appellate Division halted its unauthorized encroachment on local government authority on issues of coastal access. The legislature did not authorize DEP to manage and control the beaches in New Jersey,” Freeholder Director Daniel Beyel said.
Surf City Mayor Len Connors also was able to provide ample background information that supported Avalon’s claim that the DEP policy was flawed.
Pagliughi said his only disappointment is that more towns didn’t join the case.
The American Littoral Society filed a “friend of the court” brief on behalf of the DEP.
Avalon argued, and the DEP did not deny, that four miles of oceanfront was open to the public without restriction, except for a payment of “reasonable” beach fee.
Avalon cited that it has 62 public streets, all fronting on the ocean, and most of those allow open beach access.
The exceptions are 13 streets at the eroding north end that do not, but they front on “environmentally sensitive” high sand dunes.
In addition, Avalon noted it has 5,700 on-street parking spaces and 550 off-street parking spaces accessible to the public, of which 370 are within one-quarter mile to the beach.
“There are no restrictions upon the use of any of these parking spaces,” the court wrote.
Avalon also maintains public restrooms at 15 different locations, although they are not located every half-mile on the oceanfront, as required by the challenged rules.
In the court’s judgment, what the DEP sought was “within the exclusive province of the Legislature. The Legislature could of course delegate authority for making these decisions to the DEP. However, CAFRA does not contain such a delegation of authority.”
While the court rested its decision on the DEP’s lack of authority in the rules it also noted the DEP’s parking rules had no formula by which to follow and the intention to be determined on a case-by-case basis would “create a substantial risk of arbitrary decision-making.”
Furthermore, if a town was required to apply to the DEP for Shore Protection Funds for an emergency project, it would have no way of knowing what requirements the DEP would impose within the 180-day period after the project in which they could establish costly demands with which the municipality would be forced to comply.
“Avalon has proven time and time again that public access is part of our community character, as evidenced by the number of existing public access points to the beach, public bathrooms and parking spaces for our residents and visitors,” Pagliughi said.
“The DEP simply tried to create a boilerplate set of rules that would apply to each and every coastal community. Their latest set of rules had no applicable use in Avalon and that’s why we objected to the latest version of the State Aid Agreement,” he added.
“It’s unfortunate that taxpayers’ dollars had to be spent to prove in court that a major state agency (DEP) had a flawed public policy,” Pagliughi said. “But we were happy to be proactive on this issue, and be a leader for all coastal communities in the state of New Jersey in fighting for what we believe is fair, right and legal.”
Contact Truluck at (609) 886-8600 ext. 24 or at: ltruluck @cmcherald.com.