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New Jersey Court of Appeals rules in favor of DEP’s ability to create public beach access over private property

In an April 2020 decision of a matter comprised of 63 consolidated cases, the New Jersey Court of Appeals affirmed that the New Jersey Department of Environmental Protection (“NJDEP”) has a right to conduct a regulatory taking of individuals’ private property for certain federally funded projects. State v. 1 Howe St. Bay Head, LLC, 463 N.J. Super 312 (App. Div. 2020).

The defendants in the consolidated suits are owners of beachfront properties along the Barnegate Peninsula, an area affected by Hurricane Sandy. Since receiving funding from the federal Disaster Relief Appropriations Act of 2013, the NJDEP has been making efforts to repair the damage Hurricane Sandy inflicted on our coastlines. A key requirement for receiving this federal funding is that the funding is used for areas that allow for open public access, and not to benefit private properties. A dune and berm system installation project that would better protect the Barnegat Peninsula coastlines was approved for funding, but required the NJDEP to create easements, or rights of way, over the defendant homeowners’ properties to allow for public beach access.

Regulatory takings, also known as eminent domain takings, occur when a federal or state agency is required to “take” private property for public use – in this case, creating public accessways to the beach. The NJDEP successfully argued that the easements were needed to ensure public access to the beach, which was a requirement to receive federal funding for the coastline protection project. The homeowners challenged the NJDEP’s takings claim, asserting that they had a revetment (another type of storm-protection structure) that sufficiently protected their properties against flooding, thus eliminating the need for this particular project to run through in their area. Their revetment dates back to the 1800s and is 1.8 miles long, while the NJDEP’s project is intended to span 14 miles upon completion. Throughout the existence of this revetment, homeowners have voluntarily hired contractors to maintain it, over time pouring millions of dollars into its preservation.

While the trial court granted the defendant homeowners a plenary hearing to determine whether the homes safeguarded by the revetment were sufficiently protected, it ultimately ended up finding in favor of the NJDEP and the Appellate Court then affirmed. In deciding against the homeowner defendants, the Appellate Court reaffirmed and relied on its holding from a 2017 case (State v. North Beach 1003, LLC, 451 N.J. Super. 214 (App. Div. 2017)) stating that “the public trust doctrine requires that the public have access to the beach when DEP uses public funds to create a dry sand area.”

This project and others like it are expected to continue throughout the coming decades, likely subjecting more homeowners to regulatory takings by the NJDEP. This continued precedent presents difficulty for beachfront property owners when challenging such takings.

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