Appellate Division Upends Public Access Rules (Again)

December 23, 2015 | No Comments
Posted by Michael J. Gross

 UPDATE 1/8/16:
Yesterday a bill was voted out of the New Jersey Senate Environment Committee which would authorize DEP to require on or off-site public access as a condition of coastal permits. 

This week, the New Jersey Appellate Division threw out the so-called “public access rules” (“Rules”) promulgated in 2012 by the New Jersey Department of Environmental Protection (‘DEP”), which govern DEP’s authority to require public access to New Jersey’s beaches and other tidal waterways.  This is not the first time DEP has been unsuccessful in defending public access rules from a legal challenge.  In 2009, in Borough of Avalon v. N.J. Dep’t of Envtl. Prot., 403 N.J. Super. 590, 595 (App. Div. 2008), the Court overturned public access rules that DEP finalized in 2007.  Interestingly, the Court’s reasoning in overturning the current Rules is markedly similar to the earlier decision.

In the recent case, Hackensack Riverkeeper, Inc. and NY/NY Baykeeper v. N.J. Dep’t of Envtl. Protection, Docket No. A-1752-12T3, two environmental groups brought a challenge to the Rules shortly after their final adoption in 2012.  The environmental groups argued that DEP gave itself authority in the Rules beyond what has been granted to it by the state Legislature, and which infringes on powers reserved to the state’s municipalities.  Further, the environmental groups claimed that the powers granted to DEP in the Rules were not authorized by any statute.

In response, DEP argued that it was authorized by the public trust doctrine to manage lands held in public trust, such as beaches and tidally-flowed waters.  DEP also contended that the provisions of the 2012 Rules were authorized by the Coastal Area Facility Review Act (“CAFRA”) and that certain provisions of the Rules encouraged cooperation with municipalities consistent with the Municipal Land Use Law (“MLUL”).

The Court ultimately agreed with the environmental groups and struck the Rules.  First, the Court held that, despite case law that establishes the public’s right to access the ocean and certain privately-owned dry sand areas upland of the water, the public trust doctrine does not operate to afford DEP the broad authority to promulgate rules affecting lands held in public trust.  Instead, relying on the earlier Avalon case, the Court held that the earlier cases explained what access must be afforded to the pubic but did not stand for the proposition that the public trust doctrine grants regulatory powers to DEP.  Next, the Court held that the provisions of the Rules were not authorized by any statute.  Specifically, the Court found that provisions of the Rules allowing municipalities to adopt Municipal Public Access Plans (“MPAP”) and thereafter enjoy certain benefits had little, if any, connection to the permitting process under CAFRA.  Moreover, the Court noted that CARFA only applied to a portion of the state rather than everywhere lands held in public trust might exist.  Lastly, while the Court held that there is room in the provisions of the MLUL to allow MPAPs without creating a direct conflict, it expressed doubt as to how the provisions of the Rules requiring regular updates of an MPAP could coincide with the provisions of the MLUL as a practical matter.

The environmental attorneys at Giordano, Halleran & Ciesla, P.C. regularly counsel clients on matters involving public access, coastal permitting and CAFRA, as well as the administrative rulemaking process generally.  They are readily available to assist in complying with state environmental regulations and in handling coastal development issues. Should you have any questions concerning environmental issues, please do not hesitate to contact any of the attorneys of our Environmental Department.

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