If court says NJ can’t ensure access to beaches, who can?
A state appellate court has said New Jersey overreached when it set up rules governing public access to beaches and waterways — that the state's environmental agency didn't have the authority to make those rules in the first place.
Bu the question left now: If the state doesn't have the authority to ensure public access to beaches, who does?
"Who will now act as the trustee to protect these interests if not the state Department of Environmental Protection?" Tim Dillingham of the American Littoral Society said. "The decision would appear to create a void, and in the absence of any state leadership, could promote a return to town-by-town and development-project-by-development-project litigation over the public's ability — or inability — to access the waterfront."
At issue is a set of rules established by the Christie administration's Department of Environmental Protection in 2012 that gave towns more authority than before to establish their own beach access plans. Their elimination affects not only the Jersey Shore, but any New Jersey communities with shores along tidal wetlands — including several in north Jersey.
The DEP and some environmental argued the rules ensure public access, incorporating the public trust doctrine — which says the state holds ownership over tidal lands, for the benefit of its residents.
"They help to ensure that every municipality provides sufficient public access to our waters and that developers pay their fair share when constructing along tidal waters," DEP Commissioner Bob Martin said Tuesday. "This ruling puts that progress and potentially future public access in jeopardy."
But other environmental groups — the NY/NJ Baykeeper and Hackensack Riverkeeper — argued the rules didn't go far enough to protect the public, and instead turned over control of parts of the coastline to private property owners. They said the rules kept municipalities from imposing public-access requirements on private projects.
Debbie Mans, Baykeeper's executive director, said now New Jersey municipalities will be able to do just that.
Mans said existing law can be used to fight against any attempts to restrict public access.
“With this rule the DEP was putting corporate and private property interests above the public interest,” NorthJersey.com quoted Mans saying. “We don’t have a great history in this state where towns are doing the right thing in providing public access.”
The appellate decision is the latest in a ping-pong of regulation by the state and court rulings striking it down.
In 2007, under then-Gov. Corzine, the DEP imposed rules for New Jersey's 127 miles of coastlines that, among other things, required access points every half-mile. Those rules also required towns to provide bathrooms every half mile and to build parking lots — something some towns were loathe to do, hoping to make beaches more convenient for their own residents than for outsiders.
In 2009, an appellate court sided with a lawsuit by Avalon saying the DEP didn't have the statutory authority to put those rules in place.
In 2012, the Christie administration put its own rules in place, delegating more authority to individual communities. But the court ruled Tuesday no legislation gave it the right to do so.
"In sum, we conclude that absent a specific legislative grant of authority, DEP was not authorized by the public trust doctrine to promulgate the Rules," the court wrote.
The court's ruling:
— Reporting by the Associated Press was used in this story