| Read Time: 3 minutes | Real Estate

IMG_1330It’s the summer time at the Jersey Shore and all you want to do is go to the beach.  You could go to Sea Bright, Belmar or Point Pleasant – the list is endless.  Perhaps even walk onto the beach in Deal.  The problem in many places is the actual access to the beach.  Many beachfront homes, beach clubs, restaurants, etc. do not provide adequate public access to the beach.

Recent legislative and judicial activity in New Jersey has attempted to clarify the New Jersey Department of Environmental Protection’s (NJDEP) rules pertaining to waterfront development and associated public access requirements. However, despite these efforts, developers in waterfront areas still face uncertainty and conflicting guidelines.  Developers and real estate practitioners alike need to be aware of the latest round of legislation, while at the same time keeping an eye open for any new regulatory guidance.

On January 19th the New Jersey legislature enacted P.L. 2015, c. 260, which authorized the NJDEP to require as a condition of the issuance of waterfront development approvals and CAFRA permits, that access to the waterfront and adjacent shoreline be provided for the public.  The legislation was enacted in response to the Appellate Division’s December 22, 2015, decision in Hackensack Riverkeeper v. NJDEP, in which the NJDEP’s administrative Public Access Rule and Public Trust Rights Rules were invalidated.

Although the legislation provided the statutory authority that had been found lacking by the Appellate Division, the NJDEP has yet to revise the Rules in response to the Hackensack Riverkeeper decision. Instead, the NJDEP continues to operate under the Rules as effective prior to December 22, 2015. The continued enforcement of the Rules has created uncertainty for developers in waterfront areas, particularly in light of the various issues left unresolved by the legislation.

In declaring the Rules invalid, the Hackensack Riverkeeper court made several key determinations. First, the court concluded that the NJDEP had not received express authorization from the legislature to adopt the Rules, and the public trust doctrine alone did not empower the NJDEP to require that developers provide public access to the waterfront. While recognizing that the public’s right to access the beach includes use of privately owned property as necessary, the court found that the NJDEP was without authority to pre-empt the statutory power of municipalities under N.J.S.A. 40:61-22.20(a) to manage and control their own beaches. Under that statute, entitled “Municipal control over beaches, etc.; fees,” any municipality that owns lands bordering on the Atlantic Ocean, tidal water bays or rivers shall have the exclusive control, government and care thereof.

In addition, the court found that the creation of municipal public access funds, by which the Rules empower municipalities to receive monetary contributions from developers for off-site public access projects, is ultra vires absent a specific legislative grant of authority. The court concluded that municipalities are not authorized by the Municipal Land Use Law (MLUL) to require such contributions. Rather, the MLUL limits the off-site improvements for which municipalities may compel contributions from developers to water, sewer, drainage and street improvements. In addition, the court noted that no other statute authorizes municipalities to collect contributions for off-site public access improvements.

Finally, the court noted that although the MLUL could be interpreted to authorize adoption of a Municipal Public Access Plans( MPAP) as part of a municipality’s master plan, its provisions governing the adoption and amendment of master plans by municipalities leave no room for the pervasive involvement by the NJDEP in that process as contemplated in the Rules.

Looking forward from here, the continued imposition of public access requirements under the Rules also presents substantial practical difficulties to developers and private property owners seeking to construct new homes in waterfront areas. Recently towns such as Deal have been entertaining ordinances to limit public parking and access to beach in its town.  On-site public access has, and continues to be, an undesirable option in many situations, i.e. residential development, since homeowners are not typically enthusiastic about allowing the public to travel through their yards in order to access the waterfront. By the same token, members of the public looking to access the beach are much more likely to utilize public entrances than they are to look for pathways across private properties. The result is that in many instances, developers and property owners are left without a feasible way to satisfy their public access obligations under the Rules.

It remains to be seen whether the Rules will again be successfully challenged. Further litigation appears likely, given that the Rules have been invalidated more than once and the legislation only addressed one of the various shortcomings identified by the Hackensack Riverkeeper court. Due to the uncertainty surrounding the continued imposition and enforcement of public access requirements in connection with CAFRA and waterfront development permit applications, clients should be aware of the practical issues and seek clarity from the NJDEP as early as possible regarding the anticipated conditions of approval.  Contact the Attorneys at Gale & Laughlin with any real estate and zoning questions you may have.

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