Monday, December 17, 2012

New Beach Access Decision in New Jersey

New Jersey’s coastal development policies have served as significant fodder for debate as the recovery from Hurricane Sandy continues. This week, the Huffington Post offered a particularly exacting critique of the leniency of the state’s coastal land-use regulations.  The lengthy report begins by explaining how exclusive private beach clubs in the town of Sea Bright, though constructed seaward of the town’s sea wall, will be allowed to rebuild in the same location in Sandy’s wake.  One of these private clubs, the “Sea Bright Beach Club,” is the defendant in an important recent beach access decision of a state appellate panel.

In the early 1990s, the State sought to replenish the beaches in Sea Bright.  Originally, several private beach clubs refused to sign an easement to allow public construction and, ultimately, recreational access to those replenished beaches.  Ultimately, in 1993, an Assistant Commissioner of the State’s Department of Environmental Protection signed identical agreements with each of the clubs that would limit public access to the replenished beaches to a mere 15’ north-south transit corridor along the water’s edge. 

Following the New Jersey Supreme Court’s landmark 2005 decision in Raleigh Avenue v. Atlantis, which concluded that public use of some reasonable portion of dry sand is “ancillary to use of the ocean” in accord with the public trust doctrine, the State filed suit seeking reformation of the 1993 agreements involving the Sea Bright beach clubs.  The suit proceeded to mediation before the former Chief Justice of the New Jersey Supreme Court, James R. Zazzali.  (In full disclosure, as a then-Deputy Attorney General in New Jersey, I was involved in the early stages of the litigation and mediation.)  All but one of the beach clubs agreed to an amicable settlement with the State in 2010, as reported here.  Litigation continued with the Sea Bright Beach Club.

In September of this year, a three-judge appellate panel unanimously affirmed a trial court order holding that the limited access provisions in the 1993 agreements are “void as against public policy.”  The court stated:

“Certainly, after the Raleigh Avenue ruling, both parties to the 1993 agreement should have recognized that the limited public access to . . . the oceanfront tidal property the club owned might be questionable and the limited public access to the remainder [the un-granted state tidelands that the state had replenished] was wholly untenable.  . . . We have identified no factor or circumstance to disturb [the trial court judge’s] decision that equitable estoppel principles barred the State from seeking to void the portion of the 1993 agreement limiting access to the majority of beachfront property controlled by the Club.”

The appellate decision, available here, is captioned Chiesa v. D. Lobi.  As reported here, here and here on this blog, the New Jersey Supreme Court is set to take up a major beach replenishment case, Borough of Harvey Cedars v. Karan, this spring regarding the existence and scope of the “special benefits” doctrine.  In Karan, an oceanfront landowner alleges that the increased height of a replenished dune reduced the value of her property by impairing her view of the water.   The claim challenges the $300 offered by the Borough to condemn an easement to replenish the dune.  Affirming a jury award of $375,000, the appellate court below held that the replenished beach and dunes directly adjacent to the claimant’s property did not confer a direct benefit to the claimant that should serve as an offset in determining an appropriate condemnation award.

It remains to be seen whether the following pronouncement by the D. Lobi panel will serve as an important marker in Karan: “To be sure, beach replenishment serves the greater public good of flood protection, but its direct benefit to the [oceanfront] Club is almost incalculable.”

-Tim Mulvaney

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