City fails to get quick action on emergency appeal
NORTH WILDWOOD – The city will not be getting a new bulkhead, at least anytime soon, to plug a gap between two sections of existing steel that is in place to fortify the eroded beachfront, after a two-judge appellate division panel weighed in on the matter Wednesday, Feb. 21.
North Wildwood’s request for temporary relief was filed in Superior Court as a result of an unusual legal maneuver by North Wildwood. Ordinarily, an appeal of an agency determination, like this case, would have followed the common track, ending up on the docket of an administrative law judge, whose decision could be overruled by the DEP commissioner. North Wildwood had hoped to avoid that scenario.
In their ruling, appellate Judges Allison E. Accurso and Katie A. Gummer ordered North Wildwood to exhaust its administrative remedies in challenging the DEP’s denial of the city’s request last month for emergency authorization to construct the bulkhead.
The city had sought permission from the DEP to build a bulkhead spanning an area from between 12th and 13th avenues – where the southernmost portion of an unauthorized existing bulkhead ends – to 15th Avenue, where a new bulkhead installed this fall – which the DEP did approve – begins.
The DEP denied that request, stating it did not view the conditions there as an emergency, which, under the rules, is defined as an existing or imminent threat to life, loss of property or environmental degradation that can only be prevented or ameliorated by undertaking a regulated activity which cannot afford to be delayed by the normal permitting process.
“The proofs are very technical and the regulations complex. We lack the factual record to confidently impose any relief at this juncture. The city must exhaust its administrative remedies,” the appellate judges wrote in the one-paragraph order, which effectively sent the case to the Office of Administrative Law, the venue that the city had attempted to avoid.
Neil Yoskin, an attorney for North Wildwood, said nothing positive will come of the administrative law proceedings, aside from allowing the city to expand on the record, which he said he feels has already been well established.
“Those administrative remedies are an illusion, because what will happen is we will now file a hearing request with DEP, challenging the denial of the EA (emergency authorization). DEP, after taking its sweet old time, which is a habit, will presumably grant the hearing request and after, again, taking its time, transmit it to the OAL,” Yoskin told the Herald in a telephone interview Thursday, Feb. 22.
“Then, when the ruling of the administrative law judge is handed down, as you know, that decision is not final. It goes back to the agency head. And we all know what the agency head will do.”
North Wildwood Mayor Patrick Rosenello called Yoskin the preeminent environmental lawyer in the state when he recommended City Council hire him in June 2020 as special counsel to represent North Wildwood’s interests, as disagreements with the DEP over the complex shore protection matters plaguing the city’s northern beachfront came to a head.
Earlier that month, the state agency issued two notices of violation to the city, alleging it had undertaken a number of unauthorized projects along the oceanfront, violating five different state laws.
Almost three years later, but just weeks after the city filed a $21 million lawsuit against the DEP – alleging the state agency had not held up its end of the bargain when it failed to perform contractually mandated shore protection projects – the department issued $12.8 million in fines related to those alleged violations.
In a separate interview with the Herald, also conducted Thursday, Feb. 22, Rosenello agreed that the administrative law proceedings would likely be fruitless and would put the city on a more circuitous path, eventually leading right back to the Appellate Division, which refused to offer the city its requested shortcut.
“It’s a sham proceeding, because at the end of the day, the commissioner of that state agency can overrule the administrative law judge,” Rosenello told the Herald. “One of the two parties can unilaterally override the administrative law judge’s ruling. I mean, that’s not court as anybody would understand court in America.”
In order to circumvent the administrative law review that would result in a final agency determination that could only then be challenged at the appellate level, there are five exceptions, according to a brief filed in the case on behalf of the DEP.
In the DEP’s pleadings, submitted by Jason Brandon Kane, a deputy attorney general arguing the case on behalf of the state, the five exceptions that could keep the case from having to go through the OAL review are listed: “1) only a question of law need be resolved; 2) the administrative remedies would be futile; 3) irreparable harm would result; 4) the agency’s jurisdiction is doubtful; and 5) an overriding public interest calls for a prompt judicial decision.”
“None of these exceptions apply here, so North Wildwood should be required to pursue its remedies,” the DEP’s lawyer argued.
Even if the appellate panel had determined it should retain jurisdiction, the DEP argued the city didn’t meet any of the three Crowe factors necessary for the court to grant emergent relief, which were established by the state Supreme Court in the precedent-setting 1982 case Crowe v. DeGioia.
Under the Crowe test, North Wildwood must prove it would suffer immediate, irreparable harm if relief is not granted, that the legal rights underlying the claim are settled, there is a reasonable probability of success on the merits and the relative hardships to the parties in granting or denying the relief favors granting it.
The city would have had to show that the DEP’s decision to deny the bulkhead was “arbitrary, capricious, or unreasonable, or that it lacks fair support in the record” under established case law as laid out in the DEP filing. The DEP is also afforded deference, unless the court finds its interpretation to be “plainly unreasonable” under well-established precedent.
Kane, the lawyer for the DEP, referred the Herald to Allison Inserro, a spokeswoman for the attorney general’s office. A DEP spokesman also deferred comment to the AG’s office. Inserro told the Herald her office had no comment.
Rosenello told the Herald if something bad were to happen as a result of the inaction, like damage to public or private property or some personal injury, liability rests squarely on the DEP.
“The DEP is completely liable at this point. There can be no doubt that the city took every legal action possible to protect properties and public health, and the DEP thwarted it,” he said. “The DEP is playing a game of Russian roulette. They’re rolling the dice that there is not going to be a major coastal storm. Because if there is, I don’t think anybody will question that severe damage is going to occur.”
P.J. Hondros, a North Wildwood resident, founded a Facebook group called North Wildwood Coastal Processes in 2020. There are now almost 7,000 members, including officials from the city, the DEP and the U.S. Army Corps of Engineers as well as thousands of people from the North Wildwood community who are deeply concerned with the state of the resort town’s once-healthy beaches and dunes.
Debate and discussion is prolific on the threads under each of the multiple daily posts added by Hondros and other community members. They represent a population that is not interested in Crowe tests or voluminous legal pleadings, though many have found themselves suffering through trying to understand those things because of the significance they have to the fate of a treasured natural resource, the North Wildwood beaches.
According to Hondros: “The overwhelming majority of group members want a bulkhead between 13th and 15th avenues, and I’m not talking 4-to-1, more like 99-to-1. It’s almost unanimous. Naturally, many people are extremely worried about their property.”
He told the Herald in an interview Feb. 22 he respects the DEP’s authority but doesn’t agree with its decision to deny installation of a bulkhead. One member of his group, a photographer with a private plane, has posted aerial photographs to the page of waves crashing into a bulkhead the DEP fined the city for installing.
“Group members, including myself, are incredibly disappointed that this issue is tied up in the courts. This is an emergency; we don’t have time for litigation. I understand that both parties have differing opinions on how this shoreline should be managed, but there has to be a better way,” Hondros said.
The long-delayed Five Mile Dune Project, a U.S. Army Corps of Engineers-led endeavor that is sponsored by the DEP, would eventually bury whatever bulkheads the city has or would install. So to some in Hondros’ online community, the DEP’s steadfast resistance to bulkheads is puzzling.
Yoskin, the city’s lawyer, told the Herald he doesn’t necessarily understand it either.
“The DEP is so loath to approve structural shore protection, because they have a preference for non-structural shore protection solutions, that they put on blinders with respect to the situation here. What mystifies me is the DEP does not seem to regard itself as in any way responsible for North Wildwood’s dilemma. And that’s crazy,” he said.
In one instance, the DEP did approve a bulkhead. According to Yoskin, it was actually the state agency’s suggestion that the city apply to install the steel blockade in front of the beach patrol headquarters, work the city completed in October 2023. Later, they trucked sand in from a quarry to build a dune complementing it.
Why would the department, which has taken a public relations beating for its staunchly anti-bulkhead stance, make that suggestion? Yoskin has a theory.
“My non-cynical response would be because they recognize the risk to the building. My more honest view … is that DEP was very concerned about the public perception if that building were to be destroyed,” Yoskin, who at one time represented the DEP before entering private practice, said.
“It’s the DEP’s own website that is saying, we’re getting storms with greater intensity, with greater frequency, and it’s not a matter of if, it’s a matter of when,” he said.
“One day – it could be next week, it could be next month, it could be in three months – the mayor will be calling the commissioner, but instead of standing on the beach, he’s going to be standing in the middle of JFK Boulevard.
“He’s going to say, ‘Hey, commissioner, I’m knee-deep in water, hundreds and hundreds of tons of sand are flooding and clogging our stormwater management system, waves are overtopping the sandbags in front of the buildings behind me. Is it now enough to build a bulkhead?’”
To reach the reporter, Shay Roddy, email sroddy@cmcherald.com or call (609) 886-8600 ext. 142.
