COURT HOUSE – A judge ruled North Wildwood will not be allowed to build an extension of its bulkhead – at least for now – but that it may proceed with a $21 million counterclaim it filed against the state Department of Environmental Protection (DEP).
In an order issued on the record in Cape May County Superior Court Feb. 1, Judge Michael J. Blee granted the DEP’s motion for a temporary restraining order, prohibiting the city from building a bulkhead in front of its Beach Patrol headquarters and other vulnerable coastline where it had planned construction of the storm defense mechanism. Blee also granted the city’s motion for leave to file its counterclaim.
As part of the court’s restraining order, North Wildwood is prohibited from excavation, placement, or regrading of sand between 14th and 16th avenues without a permit from the DEP. The city is also prohibited from constructing or reshaping dunes or access points between 16th and 25th avenues without a permit from the state, the order states.
Blee ordered North Wildwood to file a new request for emergency authorization to complete that work within 10 days.
Blee’s ruling only reinforces a position the DEP had already maintained was a matter of law. However, North Wildwood flouted the regulation, moving large equipment to the area, ordering bulkhead building supplies and regrading the sand.
Now, the city would be in direct violation of a court order if it proceeds with any work prior to approval of the emergency authorization request the judge ordered the city to submit.
In meetings held off the record, first in chambers, including just the judge and counsel, and later with a larger group in a courthouse conference room, the two sides discussed the parameters of the request North Wildwood will submit in the coming days, according to persons privy to the discussions.
The conference room meeting included the judge, counsel, North Wildwood Mayor Patrick Rosenello and other city representatives, as well as multiple DEP officials who did not appear at the counsel table.
“A person seeking an emergency authorization must demonstrate there is an imminent threat to public health, safety, welfare or property, or a significant degradation to the environment, if work is not commenced immediately,” according to the DEP.
North Wildwood contends that is obviously the case, and they asked the judge in court filings to make a site visit to the beach so he could see for himself. The DEP objected to that request.
The DEP argued what’s before the court is an issue of law, adding North Wildwood ignored required procedure when constructing existing bulkheads further north and didn’t adequately respond to notices of violation the DEP issued to the city related to that unauthorized work, during which the department also alleged the city destroyed existing wetlands.
The DEP argued the city violated the Coastal Area Facility Review Act (CAFRA) by installing the bulkheads without a permit and, therefore, the state does not need to debate the merits of the project before the court since the project violated a statute.
DEP said the city also violated the Freshwater Wetlands Protection Act, Flood Hazard Area Control Act and Coastal Zone Management Rules by installing the bulkhead.
DEP said that in October 2022, the city then ignored the department’s position, denying a request to go forward with work in front of the Beach Patrol building, by moving and regrading sand in the area without a necessary permit.
North Wildwood did not deny this and put the DEP on notice in an Oct. 20, 2022 letter that stated they planned to do just that, in direct defiance of the agency.
The city does not disagree that there are preferred alternatives to bulkheads and the back passing projects they have undertaken over the years, in which large dump trucks are used to drive sand excavated from the expansive beaches of Wildwood to the island’s north end.
However, the city contends nature took the wetlands and forced construction of the bulkhead, a reaction to a dire circumstance the city’s mayor said was fostered by the state’s complacency.
Had the bulkhead not been put in place, nature would have taken John F. Kennedy Beach Drive, too, the mayor contends.
Back passing, the city says, is the best they can do to supplement the bulkhead and have relied on their own resources to do so, but even that is off the table this year because trucks are not able to make it around Morey’s North Wildwood pier due to the erosion.
Videos taken this fall and winter show waves crashing over the previously constructed bulkhead – for which the DEP issued the violations – and onto the city streets. Condo buildings, residences and hotels sit just on the other side of the asphalt.
Blee said, when issuing his ruling, that the city cannot now litigate in court if the bulkhead was necessary because the violations are a final agency action, and the city did not exhaust the available administrative recourse in response.
A War of Words
In a January press release, announcing the city’s counterclaim, Rosenello didn’t mince words when referring to the DEP.
“Our answer and motion for a counterclaim is a damning indictment of the incredible lack of professionalism and scientific integrity at the NJDEP,” the mayor stated.
In an October 2022 interview with the Herald, in the wake of Hurricane Ian, which took even more sand from North Wildwood’s beaches and created 15-foot sand cliffs in front of the Beach Patrol headquarters, 13 blocks south of the city’s most eroded beachfront, Rosenello referred to the DEP as a “failed government agency,” and said the city would do what he felt it needed to do with or without DEP approval.
Perhaps it was, in part, Rosenello’s brash approach and defiance that lit a fire under DEP officials and solidified their opinion that litigation was the best outlet to achieve resolution. DEP first filed a complaint against North Wildwood Dec. 7, 2022, in the Chancery Division of Superior Court.
Neil Yoskin, an attorney representing North Wildwood, who Rosenello called the preeminent legal authority in the state on environmental issues when asking City Council to hire Yoskin in June 2020, said he is happy with the venue and plans to make no motion to move the case someplace else.
In the courthouse hallway, Kevin Terhune, the deputy attorney general arguing the case for the DEP, told the Herald he needed to refer press inquiries to the agency’s communications team, but did say the agency’s filings speak for themselves, adding it was inevitable that the case ended up in court.
“Unfortunately, we really didn’t feel like we had any other alternative than to move forward the way we did,” Terhune told the Herald. “Again, the papers speak for themselves.”
A DEP spokesman did not return a request for comment.
“As the deputy AG said, we are a society of laws and regulations. I agree with that. The mayor agrees with that. We all agree with that. But sometimes, you just have to do what you have to do,” Yoskin said.
In a separate interview with the Herald, Rosenello said he does not regret his approach or any of the letters he sent the DEP or the public comments he made condemning the agency. To the mayor, the steps the city took, effectively forcing the DEP’s hand in taking them to court, landed North Wildwood right where it wants to be.
“I have said for two years that this matter needs to be in front of a judge, right? Because NJDEP is incapable of being impartial on this issue,” Rosenello said. “This issue is now in front of a judge. It’s going to stay in front of a judge for the future. I am happy that we are at this spot.”
Rosenello said he’s fine with where things stand and doesn’t regret not suing the DEP before they brought the case against the city.
“It is absolutely ironic that it was DEP who first brought this in front of the judiciary, but now the judiciary has given us the ability to pursue our claims against the NJDEP, and so, that’s just how things work out sometimes,” said the mayor.
Could This Settle Out of Court?
Yoskin rebuked an assertion that the $21 million counterclaim was made to add to the city’s bargaining power in any potential negotiations toward a settlement with the DEP.
“We would never bring a claim which we didn’t feel had legal merit standing on its own. So, your question is, was that brought for purposes of negotiation? No,” Yoskin said in an interview after court.
While maintaining that the counterclaim was filed strictly on its merits, Yoskin said it is too early to determine how it might play into potential negotiations.
“I just couldn’t say. I don’t know. I don’t know where it will go,” he said, “but on this issue of exchanging that [$21 million claim] for having them do a beach fill, they’re statutorily and contractually obligated to do that beach fill. That has to happen, sooner or later.”
How Does the Case Progress?
In the coming days, North Wildwood will, again, request from the DEP permission to take the protective measures they deem necessary to protect the barrier island city.
Blee said in court he had asked for representatives from the DEP and the city to attend the hearing. North Wildwood is not without remedy, he said. In discussions off the record and after the hearing, the parties worked toward a better understanding of what might be allowed in terms of immediate action.
North Wildwood “presented the court with myriad exhibits and certifications, detailing the significant degradation to the coastal protective barriers,” Blee said in rendering his ruling. “Currently, North Wildwood has zero feet of beach berm between 11th and 16th avenues. They have suffered a loss of 12,382 cubic yards of protect from 15th to 16th avenues… These are just assertions, but it is based on expert opinion. I’m not making findings that it’s accurate, but it’s being asserted. It is alleged defendants have lost more than 75% of the protective dune system in front of the Beach Patrol… Even a moderate storm would, as [North Wildwood’s expert] says, easily decimate the defense’s infrastructure, as things stand. Defendant’s expert asserts what appears to be somewhat of a persuasive argument.”
The parties will be back in court, via Zoom, March 10. As to North Wildwood’s $21 million counterclaim, Blee ordered discovery to be completed by Oct. 13 and set trial dates for Nov. 13-17, continuing Nov. 27, if required.
The DEP did not reply to a question submitted to a spokesman asking if they plan to appeal the ruling allowing North Wildwood to proceed with the counterclaim.
How Do You Solve the Problem?
“Overall, the granting of the motion for leave to file a counterclaim and the judge’s observations about what a serious problem North Wildwood is facing, I think it was a good day for the city. The shame of it is the ultimate answer is one that was beyond the control of anybody in that room, which is to get the beach built,” Yoskin said.
Rosenello and other city officials agree with the DEP that the real answer to the problem would ideally come in the form of a hydraulic dredge project, like the state and federal government perform for every other barrier island in New Jersey. They just don’t agree with the DEP’s interference with city projects in the meantime, which they say are born of desperation.
A state and federally funded project that has been slated to come to Five Mile Island for years has still not cleared the necessary barriers at the state level. The federal funding is in place, but the start date has been consistently pushed back.
The DEP has “an obligation to provide shore protection in New Jersey and to North Wildwood. They have failed for 10 years, and they’re continuing to fail as we sit here today. So, I’m not going to let up until they do their job,” Rosenello said after court. “They compounded that failure by issuing violations to us for doing their job. We are now in front of an impartial judge who is going to decide if NJDEP is doing the right thing or not, and that’s all we could ever ask for.”
Thoughts? Questions? Contact the author, Shay Roddy, at sroddy@cmcherald.com or 609-886-8600, ext. 142.
