Home Shore Environment Legislators to Feds: Start Beach Replenishment Now, Despite Lawsuits

Legislators to Feds: Start Beach Replenishment Now, Despite Lawsuits

20
SHARE
A beach replenishment project in the Brant Beach section of Long Beach Township. A similar project is being planned for Ocean County's northern barrier island. (Photo: U.S. Army Corps of Engineers)
A beach replenishment project in the Brant Beach section of Long Beach Township. A similar project is being planned for Ocean County’s northern barrier island. (Photo: U.S. Army Corps of Engineers)

Deal the lawsuits and replenish the beaches – now. That was the message sent by a group of Ocean County legislators Monday to the U.S. Army Corps of Engineers, which has put off a vital beach and dune replenishment project on the county’s northern barrier island as lawsuits pend from homeowners who refuse to grant easements to allow the dunes to be constructed, and Jenkinson’s, which has sued over a plan to build a protective dune on a beach it owns in Point Pleasant Beach.

The entirety of Brick Township’s oceanfront, left with piles of sand acting as makeshift dunes since Superstorm Sandy struck is 2012, would be covered under the project, which would include at least a 200 foot-long beach and 23 foot-high vegetated, engineered dunes.

The project, which was slated to begin by this month, has been put on hold over the lawsuits. Earlier this year, Ocean County Superior Court Judge Vincent J. Grasso ruled that the state and local municipalities should not have used the Disaster Control Act to take small slivers of oceanfront property whose owners refused to allow access so the dunes could be built. Instead, Grasso ruled, traditional eminent domain proceedings should have applied.

ADVERTISEMENT - STORY CONTINUES BELOW


On Monday, state Sen. James Holzapfel, along with Assembly members Dave Wolfe and Greg McGuckin (all R-Ocean) called on the Army Corps to find an alternative method to begin the project before the 2015 hurricane season gets underway June 1.

In the letter to Lieutenant General Thomas Bostick, Chief of Engineers for the U.S. Army Corps of Engineers, the group said erosion from Sandy has left local communities vulnerable to storms as dunes are non-existent in some areas.

“We feel that the U.S. Army Corps of Engineers needs to implement a start date for this imperative project which will remediate and restore shore communities and beaches,” the legislators wrote. “Recent reconstruction projects have begun in Monmouth and Cape May County raising concerns from local government officials and residents about when projects will begin for our shore towns in Ocean County.”

As for the lawsuits: “Safeguarding our communities and our natural resources is the responsibility of government and its citizens,” the letter stated. “Many beachfront homeowners support replenishments projects and the construction of dunes because they know it is necessary to protect their property.  This is a public safety issue and the U.S. Army Corps of Engineers and the Federal Government need to work together with towns to develop another course of action for beginning these crucial replenishment projects.”

A copy of the letter was forwarded to state DEP Commissioner Bob Martin along with U.S. Senators Cory Booker and Bob Menendez, as well as President Barack Obama.

A hearing in U.S. District Court in Trenton over the Jenkinson’s matter is scheduled for Wednesday before Judge Peter G. Sheridan.


SHARE
  • Beach N8iv

    Give the holdouts ONE more chance to allow access. If they refuse go after the ENTIRE property with eminent domain. Set up the dune and sell the property to pay for the dunes and the legal fees. I don’t see ANY reason to allow a bunch of rich people to threaten the rest of us when the next storm comes and I see NO REASON to use my tax dollar to fight them.

    • Scott Right

      I think most people have really misrepresented the “holdouts”. I have not heard of one holdout who does not want this done or is worried about their view. It is all about what can be done in addition to the easement for beach repair. If the easement said “We only want to put sand on the beach and leave I think very few would mind. Take a look at the easement and all the conditions attached and you might also want things clarified. I for one would never trust an open ended agreement from the government. I have been told that the town is willing to negotiate with the people who have not signed. What about all the other people who gave up more?

      • Beach N8iv

        How about those who lost EVERYTHING to Sandy? The ones that live a block or two in from the surf? Want to ask them?

      • Scott Right

        Take a look at the easement it is public information.

      • Beach N8iv

        Yeah, I didn’t think you would have much to say to that.

      • Scott Right

        Allow them to sign the same riparian rights for bat easements.

      • Guest

        Yeah, I didn’t think so.

      • Kevin Kane

        I assume you are referring to the requirements for public access that is a requirment for Federal funding and support on these dune/berm projects. If you’d research the New Jersey Public Trust Doctrine, you would find those same requiremnts are a condition of the Riparian Grants held by private parties such as Jenkinson that operate private beach clubs along the New Jersey coastline. Those public access requirements are already codified in New Jersey State Law. The project easements do not require anything beyond what is already required under state and Federal law. Any additional terms and/or agreements between the towns and subject landowners must be expressly memorialized in the easement language itself. IF the terms of those side agreements attempt to limit the easement rights necessary for the project, then they are unacceptable. Side agreements cannot, by law, limit the rights granted to the state via the easements that are necessary for construction, operation, and maintenance of these storm damage risk reduction projects. I am a subject matter expert in this realm, so please, take my word for it.

      • Scott Right

        Kevin from what I understand that is not the problem. People do not want, boardwalks,bathrooms, and other things placed on their property. They have told people it will not happen. Have them put it in the easement and I think most people will sign.

      • Kevin Kane

        The easement estate language only conveys a right to NJDEP to construct,maintain, and rehabilitate the sand dunes and berm.The easement is very clear about the limited rights granted to the state via that easement. The easement grants absolutely no rights to any party other than NJDEP. The landowners retains all of their rights within the easement area that do not threaten the project purpose. The easement estates are specific and narrowly defined. Nobody can build a boardwalk or any other structure within those easement areas.

      • Scott

        All beach are public until the private property starts. That is determined by tides tides every year.

  • Chuck Cumella

    START THE PROJECT NOW!!!!!!!!!! To hell with the ‘holdouts’!!!

  • Kevin Kane

    Jenkinsons does not “own” the beach; they merely control a restricted fee interest via a Riparian Grant conveyed to them by the state. It is more accurately described as a restricted fee interest. The Riparian Grants convey Jus Privatum rights to the grant holder, which are subject to the Jus Publicum rights held in trust by the state via the Public Trust doctrine. The state cannot convey a fee simple real property interest to any private party. There is an overwhelming public interest to build the protective dune/berm system that overrides any interests held by Jenkinsons or any other Riparian Grant holder in the state of New Jersey.
    The state legislature could fix this problem by amending the DCA and Title 12 administrative acquisition laws to include express provisions that mimick the Eminent Domain Act. Another sure shot option to secure those project easements entails the Federal Government acquiring those interests on behalf of the Non-Federal Sponsor NJDEP, which would require the Department of Justice to file Eminent Domain proceedings in Federal District Court, which would secure those easmement interests upon filing the Declaration of Takings; thus allowing the construction efforts to begin immediately. Amendment of the DCA and Title 12 state authorities would give NJDEP a similar Quick Take authority that would hold up to any legal challenge in both state and Federal courts. Without those Quick Take authorities an uncooperative landowner like Jeninson can hold off project construction for months; leaving the shoreline unprotected in the event of another hurricane. Therefore, either the state legislature should take action to put some teeth into their existing administrative Quick Take authorities under DCA and Title 12, or the Feds could exercise Federal Eminent Domain actions, which would also result in immediate possession of those necessary easement interests to allow the project to initiate construction immediately.

    • Scott

      They own from the difference between the winter high water mark and the summer high watermark. The actually do own some of the beach.

      • Kevin Kane

        Some Riparian Grants extend into the intertidal areas, which are generally for private piers used for fishing, etc. and in some cases amusement facilities, but most privately owned riparian grants terminate at the MHW line which is visibly delineated by the line of debris/seaweed left behind at the upper limit of high tide. That MHW line can actually be surveyed and depicted on the map as a specific elevation . As I mentioned above the restricted fee interest granted to a landowner via riparian grant is always subject to the Jus Publicum rights held in trust by the state via the Public Trust Doctrine.

      • Scott Right

        Pretty straight forward Kevin. The doctrine is most often invoked in connection with access to the seashore. In the United States, the law differs among the fifty states but in general limits the rights of ocean front property below the mean high tide line. Massachusetts and Maine (which share a common legal heritage) allow private ownership as far as the mean low water line but allow for public rights to fishing, fowling and navigation (with the necessary permits). These two states are the most restrictive of public rights and represent the exception. Most states allow free access to the intertidal zone for walking, swimming, sunbathing, etc. This does not always include the right to cross private land to reach the shore but prevents private owners from excluding the public below the mean high tide line. This line is calculated as the average high tide line of a 14.1 year cycle which means in practical terms that neither property owners nor the public are likely to be able to identify its precise location. On tidal waters the burden of proof therefore falls to the property owner as it would be trespassing for the public to willfully cross above the mean high tide line but not to miscalculate its location. On smaller creeks and streams the burden of proof falls on the party claiming the navigable servitude, Harrison v. Fite, 148 F. 781 (1906) .

      • Scott Right

        WOW read a lot of your other post. I guess you are up for the struggle!!

  • Scott

    Kevin I think you should read it again. The state can build temporary structures. How long is Temporary? They can post signs. Thay can patrol. They can store material. They can cut and trim any vegetation. They can plant as they see fit. This is for a beachfront owners entire lot. It is not just the front part on the beach. You might think that the state will only do what us “right”. Sorry to say I do not trust them. Could you imagine if they told Jenkinsons they wanted to put vegetation on 2/3 of their beach? Read it again it is 5 pages long.

    • Kevin Kane

      The only easements that allow for temporary structures are the Temporary Work Area Easements for construction staging. Those temporary structures include job trailers for the contractor who is building the dunes/berms and porta potties for the equipment operators and construction management personnel, and the right to store construction equipment within the temporary staging area. The perpetual dune/berm easement does not allow for any structures or facilities within the dune/berm easement right-of-way. It sounds like you’re a bit misinformed on this subject matter; perhaps you shoudl attend a public meeting where NJDEP and Corps of Engineers representatives provide a Q & A for coastal communities’ residents.

      • Scott Right

        Kevin I have been to every one and have had private meetings with DEP. Look at most of easements of beach front owners it covers all the property in case they need access from the side. The “holdouts” will fair much better it seems. The condemnation papers that some have received only covers the front of the property they need for the dune reconstruction. Makes perfect sense. Put in the verbiage you just said. Can’t build boardwalks, can’t build bathrooms, give the homeowner xxx days when you need to cut vegetation or access there property when it is not an emergency. I am glad we agree on the HIGH WATER MARK.