Judge Denies DEP Request for Injunction Against NW

CAPE MAY COURT HOUSE – A Superior Court judge denied the New Jersey Department of Environmental Protection’s (DEP) motion for an injunction to prevent North Wildwood from making any changes to its dunes and beaches.
North Wildwood has been at loggerheads with the DEP for a number of years with DEP denying the city permission to take action on the beaches and issuing notices of violation, and the City of North Wildwood openly defying the DEP.
On Dec. 8, Superior Court Judge Michael Blee, assignment judge for the Superior Court, denied the DEP’s efforts, filed two days earlier, to enjoin North Wildwood from installing a bulkhead between 15th and 16th Avenues, engaging in any further excavation, placement, or regrading of sand between 14th and 16th Avenues, or engaging in any other oceanfront construction, reshaping of dunes and/or reconstruction of the access point at 16th and 25th Avenues until it has received permits from the DEP.
In a 39-page legal brief filed by the New Jersey Office of the Attorney General representing the DEP, the state asked to restrain North Wildwood from “engaging in regulated but unauthorized oceanfront construction between 15th and 16th Avenues, saying, “Specifically, in blatant disregard of the department’s written direction to refrain from installing a permanent steel bulkhead, North Wildwood has defiantly stated in two separate letters that it intends to do so as early as Dec. 5, 2022, without any review or statutorily required approval from the department. Defendants have even gone so far as to order the material necessary for the illegal construction project. Making matters worse, the proposed permanent bulkhead will be constructed in the location of protected vegetated dunes and sensitive wetland areas, both of which will be destroyed causing irreparable harm to the environment if North Wildwood is not restrained.”
“The judge rejected all their requests for emergency injunctions,” Rosenello said.
Rosenello, who previously said he looks forward to having matters with the DEP brought to court, said he considered this a big win for the city.
“The DEP has been acting like they are the prosecutor, judge and jury on these matters for a long time. Now have an impartial judge weighing in and the first thing he does is reject a request from the DEP,” Rosenello said.
Rosenello said the DEP was essentially asking the judge to order a shore town not to take any measures for shore protection. He said the judge’s unwillingness to do so exposes the failure of the DEP to do their job, which in this case is shore protection.
“The DEP has refused to do its job in terms of shore protection, leaving it up to the towns. Now the DEP is spending time and energy trying to stop a shore town from doing shore protection,” Rosenello said.
According to the mayor, the city has ordered bulkhead materials and plans to move forward with construction at 15th Avenue, where the beach patrol headquarters are located. He said if an anticipated nor’easter happens to cause a breach in the dune, there, the city can fix it.
“What the DEP wanted the judge to do was order us not to fix it,” Rosenello said. “Now we have a month to prepare to go to court with them. We are going to defend and counterclaim for a lot of things.”
According to an order signed by Judge Blee, Dec. 8, the parties will return to court Jan. 17, 2023, when North Wildwood will have the opportunity to provide an answer to the complaint.
Attorney Neil Yoskin of the Cullen-Dykman law firm has represented North Wildwood in its dealings with the DEP. Yoskin said on Dec. 8 there was no hearing of the DEP’s request for temporary restraint.
“That decision was made without input from the parties involved,” Yoskin said.
He said North Wildwood was given notice of the action filed by the DEP and responded with a letter to the judge. Yoskin said requests for temporary restraint are rarely granted.
“They asked to restrain something that hasn’t happened yet,” Yoskin said.
Yoskin echoed Rosenello’s comment that the bulkhead materials had been ordered, adding that they had not yet arrived.
On Oct. 20, the City of North Wildwood, Yoskin sent a letter addressed to DEP Commissioner Shawn LaTourette saying the city would go ahead with its plans to alter the beachfront to protect property and lives, including building a bulkhead in front of the North Wildwood Beach Patrol headquarters at 15th Avenue. On Oct. 5, the city requested emergency authorization from the DEP to do the same work. The DEP denied the request and a notice of violation dated June 6, 2020. The DEP said it still required corrective action related to the notice of violation, and on Oct. 12 the DEP denied the request for emergency authorization.
Yoskin summed up the city’s position in his letter saying, “If and when the federal government and the state government carry out their responsibility to restore the city’s beach and dune system, then any short-term impacts associated with a bulkhead will simply go away, as the bulkhead will be buried within the newly constructed beach/dune system. But until that occurs, the city must take the steps necessary to protect the lives and property of its residents.”
In his remarks, Yoskin referred to a joint U.S. Army Corps of Engineers/DEP project to construct a dune and beach berm from Hereford Inlet in North Wildwood to the Lower Township side of the Cape May Inlet. The project remains in the design phase waiting on state aid agreements to be signed by the City of Wildwood and Lower Township. Asked what the DEP was doing to advance the project, DEP Press Officer Caryn Shinske said, “The Department is working with the municipalities.”
In a letter, dated Dec. 1, from the DEP commissioner, Shawn LaTourette told Rosenello, “In the spirit of partnership, we again remind the city that taking perceived ‘self-help’ measures, including the destruction of dunes or other regulated coastal resources, the unauthorized installation of bulkheads, or other regulated activities without required DEP review or permits, is a violation of the State’s environmental laws, some of which carry severe monetary and other penalties.