CSG Law Alert: New Cases – Condemning Easements for Public Beach Access and Use

On April 16, 2020, the Appellate Division of the New Jersey Superior Court, the state’s intermediate appellate court, published three precedential opinions concerning the state’s condemnation of ocean-front property for access and use by the public. New Jersey, from Sandy Hook to Cape May, has 130 miles of beaches on the Atlantic Ocean.  “Goin’ down the shore” is a firmly held tradition for New Jersey residents and visitors alike.  In 2018, around 48 million people visited the Jersey Shore counties and many of them enjoyed the beaches.  Public access and use of those beaches have occasioned public debate and court cases.  These three cases continue the line of decisions approving actions taken to create and protect such access and use.

State v. 1 Howe Street Bay Head, LLC involved a privately owned and maintained revetment (rocks covered with sand and vegetation) between homes and the ocean to protect against coastal storm flooding.  The state, with the financial assistance of the United States, intended to build a 14-mile dune and berm system to be replenished periodically after the beaches naturally eroded.   In Bay Head, this system was to be built between the revetment and the ocean. The state contended, in the trial below, that its proposed system would provide the best protection against flooding, in part because, unlike the revetment, it would also protect the beach itself.  The project required the condemnation of private property for the project as well as public access and use.  The 1 Howe Street Bay Head LLC asserted a number of defenses that were rejected by the court below and the Appellate Division.  It ruled that the state has the power to condemn easements for storm-protection purposes and for public access to public waters (which, under New Jersey law, includes the ocean) and the use of those waters.

In State v. 10.041 Acres of Land in the Borough of Point Pleasant Beach, the 14-mile dune and berm system crossed a commercial public beach property that provided parking and visitor services to the public wishing beach and ocean access.  The state wanted an easement over much of the commercial beach property, but not all.  The state included in the easement language that gave the Department of Environmental Protection, without conditions, the right to operate the beaches subject to the easement.  The appellant objected claiming it was illegal.  The trial court below and the Appellate Division authorized the State’s language.

An appeal from a denial by the court below for a requested plenary hearing (in effect, a trial with witnesses) was decided in New Jersey Department of Environmental Protection v. Midway Beach Condominium Association, Inc.  This case also involved a privately maintained preexisting storm protection system.  The condominium association contended before the trial court that the 14-mile dune and berm system was unnecessary at its property because of the preexisting system.  It requested a plenary hearing so that the court, after hearing and evaluating testimony, would rule on the issue.  The court below ruled that there was no triable issue of fact because there was no dispute as to the facts.  The state submitted a certification demonstrating the preexisting system was inadequate and the condominium association failed to dispute it.  The Appellate Division affirmed the ruling of the court below.  It also rejected an argument that, because each condominium owner had rights to access to beachfront property, each of them had to be included in the condemnation process.  The court referenced a statute that specifically provides that that condominium owners should participate through their condominium association.

Certainly, these cases will not be the last ones to address challenges to easements for public beach access and use.  But the defenses potentially available to challengers is shrinking.

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