Last week the New Jersey Appellate Division invalidated at least part of the Department of Environmental Protection’s beach access rule. The rules, adopted in 2007, required coastal towns that provide unrestricted access to the beach. Towns that seek shore protection funds are required to provide parking spaces and restroom facilities close to the beach.
The Borough of Avalon and others sued DEP alleging that the beach access rules were beyond the authority of the Department. DEP argued the beach access rules were authorized by the public trust doctrine, Coastal Area Facility Review Act (CAFRA), and the Shore Protection Fund Act. The Appellate Division found DEP’s basis for authority to be unpersuasive and invalidated the Public Access Rules. This is somewhat startling given that the Courts give all due deference to the agencies and presume that the rules are valid and reasonable.
In invalidating the rule, the Court noted that township may close public facilities, including beaches, at times when use of the public facility may pose a threat to public safety. Township’s further have the legal authority to implement reasonable “regulations as to the use and enjoyment of the beach.” This right of the township is not inconsistent with the public trust doctrine according to the Court. The Court then compared this broad right with DEP’s narrower authority to control the beaches. The Judges found no basis in the law or the Public Trust Doctrine for the DEP to interfere with this township right.
The Court made short work of DEP’s argument that CAFRA provided the authority to implement the rules. CAFRA provides DEP authority to regulate certain land use applications, including development of greater than 24 units; developments on the dunes etc. The Court found absolutely no authority under CAFRA for the rules.
Lastly, the Court noted that the Shore Protection Fund statute only authorized the DEP to develop a ranking system for shore protection projects and recommend projects to the legislature. NJSA 13:19-16.2(a). It is then up to the Legislature to enact the actually funding of non-emergency shore protection funding. According to the Court, northing in the statute gave DEP authority to place obligations upon township in exchange for these funds.
At this time it is not clear whether the DEP will seek certification to the New Jersey Supreme Court. The real solution is for the legislature to pass a bill authorizing DEP to implement the regulations. Given that the State has already enacted a bill delaying the implementation of the beach access rules’ application to marinas, such a result is very unlikely.