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The New Jersey Beach Access Saga Continues

In a much anticipated decision that came down on Tuesday, December 22, 2015, the Appellate Division of the Superior Court of New Jersey found that the 2012 beach access rules constructed by the Christie Administrative were invalid. The three-judge panel declared the New Jersey Department of Environmental Protection (“DEP”) was not authorized to promulgate the rules, siding with two nonprofit environmental groups arguing for public access rights to the State’s beaches. Hackensack Riverkeeper, Inc. and NY/NJ Baykeeper v. New Jersey Department of Environmental Protection, Docket No. A-1752-12T3 (App. Div. Dec. 22, 2015) (hereinafter, “Riverkeeper”).

After Borough of Avalon v. New Jersey Department of Environmental Protection. 403 N.J. Super. 590, 595 (App. Div. 2008), certif. denied, 199 N.J. 133 (2009) (hereinafter, “Avalon”), a case in which the Appellate Division held the prior version of the DEP’s beach access rules invalid, the DEP adopted the new Public Access Rules. 44 N.J.R. 2559(a) (Nov. 5, 2012) (the “2012 Rules”).

In Avalon, the court considered a municipality’s challenge to the 2007 version of the public access rules that required public access to municipal beaches at all times, and that conditioned eligibility on certain appropriations upon a municipality’s agreement to provide additional parking and restrooms along the coastline. 403 N.J. Super. at 595. The court found these rules to be in contrast with the specifically stated authority granted to the municipalities by the legislature, and rejected the argument that the public trust doctrine supported DEP’s authority to regulate municipally-owned beaches. Id. at 600.

In Hackensack, the DEP asserted the argument that the 2012 Rules do not mandate any action by a municipality, but rather encourages cooperation in planning for access. However, the court reasserts its position as provided in Avalon that the public trust doctrine cannot serve as the “fount” of the agency’s regulatory power in the face of a want for statutory authorization.

In doing so, the court specifically rejected the DEP’s claim that Raleigh Ave. Beach Ass’n v. Atlantis Beach Club, Inc., 185 N.J. 40, 51 (2005) “recognized the agency’s independent regulatory authority pursuant to the public trust doctrine.” Instead, in Raleigh Ave. Beach Ass’n, the private property owner’s development of a boardwalk pathway triggered the DEP’s jurisdiction pursuant to the Coastal Area Facility Review Act, N.J.S.A. 13:19-1 to -21 (“CAFRA”). The court also concluded that the DEP could not support the 2012 Rules pursuant to CAFRA, the MLUL or any other statutory authority the DEP attempted to rely upon.

There is dispute regarding the impacts of the court’s holding. For example, while some celebrate this decision as a victory for the common beachgoer in New Jersey, others question whether the decision creates a void in beach access rules for the State.

Lieberman & Blecher’s attorneys have extensive experience in handling beach access cases.  Stuart Lieberman successfully argued one of New Jersey’s seminal beach access cases, Raleigh Avenue Beach Association v. Atlantis Beach Club, Inc., 185 N.J. 40 (2005), before the New Jersey Supreme Court. 

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