Thursday, December 24, 2015

NJ court strikes down beach access rules, so what now?

As concerns go, it may be farthest from most minds today on Christmas Eve, but a court ruling this week could have a significant impact on public access to New Jersey beaches for upcoming summers.

Brent Johnson and Samantha Marcus report in the Star-Ledger that:

A state appellate court Tuesday threw out rules put in place by Gov. Chris Christie's administration that opponents argued limited public access to New Jersey's beaches and waterways.
In the latest chapter of a fight that has stretched on for decades, a three-judge panel ruled that the state Department of Environmental Protection overstepped its authority by issuing the 2012 guidelines, which govern how people are allowed to access the state's waterfronts. 
The decision favors a pair of nonprofit environmental groups that claimed the rules allowed companies and private property owners to take over swaths of New Jersey's shorelines and deny access to the public.
Andrea Leshak, a staff attorney for Hackensack Riverkeeper, which filed the suit alongside  with the NY/NJ Baykeeper, said the decision is a victory for beachgoers.
"It will be good for the typical beachgoer in that their public access is not limited by DEP rules," she said.
The court battle began in 2007, when the DEP under then-Gov. Jon Corzine adopted rules expanding the DEP's authority allowing more public access to New Jersey's beaches and waterways.
Those rules were praised by some for creating new access points. However, others, including those in the business community and some shore towns, who have been accused of trying to limit public beach access with limited parking and restrooms were critical.The rules required towns to build parking lots and bathrooms every half mile along New Jersey's 127-mile coastline. They also required industrial companies that operated on waterfront property and couldn't provide access to give money to create parks or walkways in other areas.
Avalon, in Cape May County, sued, and a state appellate court agreed the DEP went too far with the bathroom and parking requirements, ruling that the regulations were "not statutorily authorized and therefore invalid."
In 2012, the DEP under Christie — who defeated Corzine three years earlier — adopted new rules, effectively leaving it up to individual towns to create their own access plans. Hackensack Riverkeeper and NY/NJ Baykeeper filed suit.
The DEP argued in the case that it "has been implicitly recognized as the proper governmental authority to manage lands held in public trust." 
But on Tuesday, the appellate panel said the DEP didn't have authorization from the state Legislature to implement the rules.
"DEP was not authorized to promulgate the rules under the public trust doctrine," Judge Carmen Messano wrote for the panel. "The rules far exceed the Legislature's limited delegation of authority to DEP under (Coastal Area Facility Review Act) to regulate land uses in the coastal zone."    

Read the full story here

Not all environmental groups agreed with the ruling.  Wayne Parry of the Associated Press reports: 

Ralph Coscia of Citizens Right To Access Beaches (C.R.A.B.) said no one appears to be in charge of protecting public beach access now.

“The court said DEP doesn’t have the authority to make these rules,” Coscia said. “The next question is if they don’t, who does.”

Tim Dillingham of the American Littoral Society, an environmental group that sided with the department, voiced similar concerns.

“Who will now act as the trustee to protect these interests if not the state Department of Environmental Protection?” he asked. “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.”

Groups on both sides of the issue called on the Legislature to clearly define who represents the public’s right to access beaches and waterways. 

Do you have an opinion on this?  Let us know in the comment section below.

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