NEWS - BEACH REPLENISHMENT
BEACH ACCESS DENIED AT 5 PROPERTIES
COURT RULES IN FAVOR OF HOMEOWNERS
Excerpted from an article by Nick Huba, Beach Haven Times, 07/16/08
SURF CITY - A state Superior Court Appellate Division panel rejected the state’s appeal of a November 2006 ruling seeking access to five properties for a federal beach replenishment project in Surf City yesterday.
The three-judge panel, comprised of judges Jose Fuentes, Jane Grall and Amy Piro Chambers, ruled Tuesday that Superior Court Judge Vincent J. Grasso was correct in his November 2006 ruling not granting access to the state DEP.
“The core issue here is whether the State can force a private property owner, by way of preliminary injunction, to grant a perpetual public access easement without first following the procedures in the Eminent Domain Act,” the three judge panel wrote in their 10-page ruling. “We are satisfied that the answer to this question is ‘no’. Further, NJDEP’s reliance on the provisions of N.J.S.A. 12:6A-1 is misplaced and any argument predicated on this statute is unavailing, because defendants have never denied it access to the property for the purpose of correcting an emergency situation.”
On November 16, 2006, Superior Court Judge Grosso ruled that the state did not produce enough evidence to be granted access to the properties for a federal beach replenishment project. The state appealed the decision.
Attorney Kenneth Porro, who represented one of the properties in question, said the division upheld the State Constitution. “The Appellate opinion notes that government cannot take private property even if there exists an arguable benefit to that upland owner, without paying just compensation”, Porro said. “This principle is founded under our State Constitution. Porro said, his clients….are not against a reasonable dune project, but a 29-foot wall of sand is out of the question”. “...hopefully this opinion will cause the DEP to compromise on the height of the dune as well as continuing to permit oceanfront property owners to maintain existing access paths and existing breeze flows”. “It is time to work together”.
EMINENT DOMAIN ORDINANCE MAY BOOST REPLENISHMENT PROJECT
MEETING SET FOR OCEANFRONT OWNERS
By Jessica Infante and Nick Huba, Staff Writers, July 16, 2008, Asbury Pk Press
Harvey Cedars - The stalled federal beach replenishment project for Long Beach Island may be gaining ground. On Tuesday, an eminent domain ordinance was passed in Harvey Cedars to acquire beachfront easements. On the heels of this decision a meeting is planned for Saturday for oceanfront homeowners in the borough who would be affected. On Friday, a meeting of all six Island mayors and the Army Corps of Engineers will take place in order to flesh out next steps and address detailed concerns.
The beach project aims to raise the dune level, and a 300- to 400-foot-wide berm is planned, depending on the location, according to the project's details. Approximately 11 million cubic yards of sand will be placed during the initial construction. A periodic nourishment cycle will contribute an additional 2 million cubic yards every seven years.
Harvey Cedars Mayor Jonathan S. Oldham told the nearly 100 residents at the meeting that he hoped the project would be offered to the borough in the fall. "We need to pass this ordinance now and we have appraisal work to do (to determine the value of the easements) and we have other things to do so that we would be ready to accept or reject the project for Harvey Cedars," Oldham said. "If we accept it, you may see sand on the beach in November."
Many residents at Tuesday's Harvey Cedars Board of Commissioners meeting spoke passionately both for and against the ordinance.
One resident, Wendy Mae Chambers, fought back tears as she addressed the board and the public about the need for the ordinance and the project. "It's not going to be resolved without eminent domain," she said. "Everybody knows that life is more important than money and a house." She called the May 12 nor'easter that closed the only bridge to the island and battered beaches a "gift" because of the wake-up call it delivered.
Of the 82 easements needed, 15 homeowners have yet to sign. Victor Groisser, who has not signed, said that he and many of the other 14 homeowners were against the project because of the total loss of control over the pieces of land that "may very well result in over-commercialization," the unexploded ordnances that landed on the beach in Surf City during their phase of the project and the opinion that Harvey Cedars should run the project locally, he said.
Oldham and some of the 15 homeowners will meet Saturday to discuss the ordinance and the project at a time that had yet to be determined Tuesday. Local municipal officials and representatives of the Army Corps of Engineers will meet Friday to discuss the pending future of the federally funded beach replenishment project. During the meeting, which is not open to the public, the corps will give a status report to officials about where the current project stands, Oldham said.
"We had a meeting with them eight months ago and then four months ago, but since then we have not heard from them about the project," Oldham said. "All of the municipalities want to know what is going to happen with the money that has been appropriated for the project."
Ed Voigt, spokesman for the corps, said it is not uncommon to have a series of meetings with local officials about pending projects. "The corps likes to maintain a dialogue with the local officials about the projects," Voigt said. "We want to know what their concerns are and what questions they need answered."
The first part of the project was completed in Surf City and a small section of Ship Bottom. The project's future depends on federal funding.
Beach Haven Mayor Thomas J. Stewart said he hopes the meeting will answer questions about some of the requirements for the project. He said that beachfront neighbors often compare notes and find that they've been told different things because the state and/or corps keep changing the plan. "We're hoping to get a more defined and refined set of rules," Stewart said.
What's in a word? Plenty, landowner says
by Nicholas Huba, staff writer, 7/21/08 Asbury Park Press, excerpted
Harvey Cedars - During a meeting Saturday morning, beachfront-property owners who have not signed easements for the federally funded beach project said they are not against the project but rather the way the easements are written. "Words like "perpetuity' and "assignable' are scary; they have to be changed," said Martin Flumenbaum, a homeowner on 83rd Street who said he favors the project but has declined to sign the easement agreement.
About 15 people from the area attended the special meeting of the borough Board of Commissioners and oceanfront property owners who have not signed on. "The reason that we wanted to meet in this informal setting was to get some of the issues that you have out on the table," Mayor Jonathan Oldham said. "I have talked to many of the owners that have not signed the easement, and the talks have been civil. I want to get everything out there and see what we can do."
The meeting came on the heels of the board's approval of an ordinance that would allow it to negotiate with homeowners who have not signed the easements and, if that does not work, to move forward with eminent domain — the government's right to take private property for a public purpose in exchange for just compensation.
"I think moving forward with eminent domain is a bad idea," Flumenbaum said. "We should see if we can get the easements changed before doing this."
Of the 82 easements needed, 15 homeowners haven't signed, Oldham said. Four of the easements in question are for properties without homes.
"My house is important, and 1 percent of the population should not be holding the rest of us hostage," said Brian Lewis, vice president of the Harvey Cedars Tax Payers Association.
Oldham said he is going to take the suggestions and concerns of the owners who have not signed the easements to state officials.
"We want to know what your concerns are," Oldham said. "We want to take the concerns to the state to see what they can do."
Bill adds $2M for Dredging Barnegat Inlet
Posted by the Asbury Park Press on 07/14/07, BY MATT PAIS, MANAHAWKIN BUREAU
BARNEGAT LIGHT — A proposed $2 million insertion to the federal budget would keep boating traffic moving safely to one of the country's busiest commercial fishing ports.
The 2008 Energy and Water Appropriations bill, approved Wednesday by the House Appropriations Committee, contains a sizable increase in funds earmarked for dredging Barnegat Inlet, the channel used by commercial fishing boats operating out of Viking Village.
"This is good news for the fishing community all around," Ernie Panacek, the manager of Viking Village, said. The bill, which heads to the floor for a full House debate next week, contains $2 million more than the $54,000 originally proposed by President Bush in his initial budget proposal. The proposed increase provides for further maintenance dredging to mitigate the inlet's rapid shoaling that can make passage for all fishing boats difficult.
"If we didn't get this dredging, it would be a lot more dangerous for the recreational boats and almost impassable for the commercial (vessels)," Panacek said.
The appropriation would dwarf the $1.5 million spent on maintenance dredging of the inlet in the past three fiscal years combined. The Army Corps of Engineers was allocated $450,000 in federal money this fiscal year.
In a prepared statement announcing the funding surge, Rep. Jim Saxton, R-N.J., said he pressed Rep. Peter J. Visclosky, D-Ind., chairman of the House Subcommittee on Energy and Water Development, and ranking subcommittee member David Hobson, R-Ohio, to provide more for the channel.
"This is a sizable increase to what we had been faced with," Saxton said. "Barnegat Inlet can be a dangerous passage, and adequate channels are imperative for fishermen and boat operators to safely navigate." The Senate has yet to approve a similar measure.
Beaches Left Hanging, Money Not There - Yet
It is uncertain whether the beach replenishment project will continue across Long Beach Island, and not just because many oceanfront homeowners refuse to sign easements. Officials said Monday that the funding for the project to continue is not available right now. A portion of the project was completed in February in Surf City but before beaches could be reopened, a cleanup for World War I-era military munitions pumped ashore had to be done. The beaches have been open for about two weeks and there have been no further munitions located by officials or beachgoers.
As of right now, there is no line item for beach replenishment in the 2008 budget according to a representative in Jim Saxton’s office. Last month Congress approved a $4 million emergency supplement bill to fund the munitions cleanup in Surf City and portions of Ship Bottom. About $2 million was spent on the beach cleanup and some of the remaining funds can be used toward the continuation of the beach replenishment project. Harvey Cedars still needs 18 easements before they qualify for beach replenishment. Easements have continued to come in most recently due to the sale of several oceanfront homes, according to John Oldham, HC mayor. Mayor Gove of Long Beach Township says “the munitions are a concern but even though these munitions came in, I still keep getting easements. I've gotten a number of them in; I couldn't tell you how many but I have gotten a sizable amount”. Jim Saxton and others in Congress continue working for funding of the project.
Army Corps: Munitions scan about done
Excerpted from an article by DONNA WEAVER Staff Writer, May 15, 2007
Surf City: U.S. Army Corps officials said Monday that they are just about done with the physical work of clearing beaches in Ship Bottom and Surf City of World War I-era munitions. But this announcement of completion does not include a meeting of stakeholders, which has not been scheduled yet, officials said.
“We're distinguishing our work from the whole process and we thought from the beginning that this was when we would be done with our work,” said Ed Voigt, spokesman for the corps.
Voigt said it is possible the beaches could be reopened by the end of this week. Voigt said the corps will likely make its recommendation later this week to the state Department of Environmental Protection to reopen the beaches. “It's looks as though we got everything we could get. We still need to double-check a couple of areas. We're certainly covering all of it at least once. Maybe, it's possible they could be opened this week, but you know, we'll see,” Voigt said.
Voigt and Surf City Project Manager Keith Watson said Friday the corps will never be able to say they found everything. Watson said 98 percent is the best that can be done.
The Army Corps said it is recommending that the towns not allow beachgoers to dig holes deeper than 12 inches. However, both towns already have such a restriction, but for a different reason. An ordinance against digging holes deeper than one foot has been in place for years in Surf City, borough Clerk Mary Madonna said last month.
Brief Claims taking Private Property
Posted by Times Beacon Newspaper, 04/25/07 BY NICHOLAS HUBA, STAFF WRITER
SURF CITY — A brief filed by the attorney representing a group of beachfront owners against an appeal by the state Department of Environmental Protection for access to their property claims that the impact of the ruling could be felt by all oceanfront residents.
The Amicus Curiae brief was filed by attorney Kenneth Porro to the Superior Court of New Jersey Appellate Division April 19. Amicus Curiae refers to someone, not a party to a case, who volunteers to offer information on a point of law or some other aspect of the case to assist the court in deciding a matter before it.
No date has been set for the appeal hearing, Porro said.
During a hearing in November, Superior Court Judge Vincent J. Grasso said the state did not meet criteria needed to allow the U.S. Army Corps of Engineers to go on private property without easements for the beach replenishment project.
"This lawsuit, however, is more about eroding constitutionally-protected property rights, than about restoring eroding beaches," the brief states. "This is so because property rights are the "line drawn in the sand' protecting us against tyranny of the majority over the rights of the minority.
"This case is not about "access to property,' but instead concerns government's involuntary taking of private property without paying even one penny in just compensation," the brief added.
The project, which is wrapping up in Surf City, includes the construction of a dune with a top elevation of 22 feet above sea level, with a 300- to 400-foot-wide berm, depending on the location of the beach on the Island, at an elevation of 8 feet above sea level. The corps and the DEP picked up a 20-day option with Weeks Marine to extend the contract, which could increase the price tag for this section of the project by $2 million more than the $5.7 million base price. The project has been stopped after World War II ordnance was found in the beach. The Army Corps of Engineers are in the process of cleaning up the ordnance.
Porro said that he is trying to protect the rights of the beachfront owners.
"This access statute does generally authorize the state to construct new dunes, but the same statute is not applicable where property owners' rights are buried in the sand without recourse," the brief states.
Porro said that he stands behind the original ruling of the Judge Grasso.
"If the state really believes it needs respondents and like Amicus Curiae oceanfront property owners' lands for a beach dune project it must condemn the desired property under the well established eminent domain safeguards," the brief states. "The trial court's ruling was consistent with New Jersey and United States of America Constitutional and statutory rights."
Surf City Beach Restoration
Here are several aerial photos of the recent beach restoration work in Surf City. The difference between the new beach and the old is dramatic
State to Appeal Surf City Ruling
Excerpt from an article by ZACH PATBERG in the Atlantic City Press of 2/3/07
SURF CITY — In the latest chapter of the tug-of-war between state officials and a handful of borough homeowners over completing a beach-replenishment project, the state Attorney General's Office has filed arguments appealing an earlier court ruling that sided with the residents.
Though the lawsuit focuses on Surf City homeowners, the impact of its outcome will reverberate beyond the borough. The result could set the precedent either to allow or block the State from all beachfront property along the island.
The brief, sent to the Appellate Division of Superior Court on Thursday, comes nearly two months after the state's notice of appeal and three months after state Superior Court Judge Vincent J. Grasso ruled against the government's attempt to gain access to the beachfront properties of five homeowners without their permission to pump sand onto the eroding shoreline. The five have not signed easements allowing access.Attorneys for the homeowners will file a response, most likely by Feb. 21. A court hearing will follow, though a date has not been determined.
A main disagreement with Grasso's decision cited by state officials in their appeal is the judge's suggestion that eminent domain might be the only remedy to the access issue. According to the appeal, state attorneys contend the state Department of Environmental Protection has the right under state statute to access property for the public good.
"(The ruling) ignores well-settled law, renders meaningless the clear language in (the statute), and frustrates DEP's authority to take actions in furtherance of shore protection projects of vital importance to the State," the brief says. "While the Eminent Domain Act provides the procedure for government to gain ownership of property, it is not the exclusive means by which government must act."
Paul Schneider, a lawyer representing two of five Surf City homeowners who have not signed easements, has repeatedly argued that such forced access equates to a takeover that deserves compensation. Regarding the state's latest legal filing, he said: "I believe Grasso made the right decision and I see nothing new in this brief."
LPOA Officials Support Beach Replenishment
A majority of the Officers and Trustees of the Loveladies Property Owners Association have agreed to adopt the following position regarding the $71 million beach replenishment and protection program:
1...We are strongly in favor of proceeding with this project. We believe that, despite some negative aspects, the overall benefits to Long Beach Island far outweigh the disadvantages. Any one who has experienced the devastation here caused by the great storms of the past (particularly the nor’easters of 1962 and 1992) will recognize that property protection must take top priority.
2...We fully support Mayor Gove in her efforts to have the DEP take a more reasonable stand on certain requirements:
3...In summary: We want this Beach Protection Project to go forward. The Township’s elected officials will do their best to negotiate a reasonable compromise with the DEP. The end results will not satisfy every one (compromises never do) , but the important objective must be to get this program going. It would be a shame to lose $71 million because of the objections of a few. The opportunity to do this job right may never come again.
Where to write
For individuals to write to regarding the beach replenishment project, click CONTACTS
$6 M. Earmarked for Beach Preservation
Excerepted from an article in Times-Beacon Newspapers on 01/17/07, BY KATIE WAGNER, STAFF WRITER
The House of Representatives has voted on reserving $6 million from its 2007 budget to pay for the multi-million dollar beach replenishment project, while the U.S. Senate and President are proposing $2.5 million be taken from their 2007 budget.
It's likely that the number will end up somewhere in between $2.5 and $6 million, but Rep. Jim Saxton, R-Ocean, is hopeful that the project will receive closer to $6 million in federal funding, said Jeff Sagnip, a spokesman for Saxton.
"Right now, we're waiting to see what the new majority does," Sagnip added. "We'll probably know within the next few months or as early as in six weeks."
The total estimated cost of the federal project designed to protect the Island from ocean storms is $71 million. This amount would cover initial project work and 50 years of maintenance in five out of six of the Island's municipalities. Barnegat Light is the only municipality not included in the beach replenishment project, due to another project having been done in the borough years ago.
So far, $7.5 million has been used to do project work on Surf City beaches — the only beaches on the Island to have been worked on by the U.S. Army Corps of Engineers since 2006, when the beach replenishment project started. And this $7.5 million is only paying for part of the borough's beaches to be fully replenished.
Surf City Mayor Leonard T. Connors Jr. said while the beaches between Third and 21st streets are having sand pumped in, dunes replaced and all the other beach replenishment work done, that only some of the municipality's northern most beaches will have sand pumped into them.
Connors added that Surf City's northern most beaches tend to suffer from the most erosion in the borough and that he's been receiving a great deal of letters from residents of 25th Street and other northern streets urging for the project to be done in this part of the borough.
Without permission from the beachfront property owners on these streets, however, the work cannot be done.
Beach Haven Residents Grant Access
Excerpted from an article BY KATIE WAGNER, STAFF WRITER, in the Beach Haven Times of 01/3/07
BEACH HAVEN — Since results of the Island's beach replenishment project have been observable in Surf City, more of the Beach Haven beachfront property owners have granted written permission for easements of their property to be used by the Army Corps of Engineers.
So far, Surf City is the only municipality on the Island where the Army Corps has done any project work.
"There has been. . . a very positive reception here in Beach Haven now that people have actually seen the project," said Beach Haven Mayor Tom Stewart. "We had already received a very good percentage of the easements prior to the beginning of the Surf City project."
He added that Beach Haven officials will be walking their beaches with Army Corps of Engineers Project Manager Keith Watson in the next two weeks to see if the engineers will be able to get the project started in Beach Haven in the spring.
"We're feeling very confident," he added. "Unfortunately, I don't feel confident about getting it done in the spring. I think we're going to have to wait until the fall."
Township Administrator Richard Crane said he's been encouraging people to go to Surf City and see the work that's been done.
Crane said he thinks the widths and heights of the dunes and widths of the beaches the Army Corps have created are "great."
"There have been quite a number of new ones sending them (easements) in that had previously been reluctant, including hotel owners," Crane said.
"People who did have concerns at first with regard to the project, although they were supportive ... those concerns have gone by the wayside," Stewart said. "Beach Haven is going to be ready to go. It's just a question of when the Army Corps of Engineers can get the project bids so they can come here and do it."