SandBar 8:1, April, 2009

Court Invalidates New Jersey Public Access Rules

Borough of Avalon v. New Jersey Dep’t of Envtl. Prot., 403 N.J. Super. 590 (2008).

Surya Gablin Gunasekara M.R.L.S., 2L, University of Mississippi School of Law

In 2007, the New Jersey Department of Environmental Protection (DEP) adopted a comprehensive set of rules expanding public access to beaches and other tidal waterways. When the Borough of Avalon (Avalon) challenged the rules as they applied to municipalities, the Superior Court of New Jersey held that the regulations were invalid. The court based its decision on the fact that the DEP did not have legislative authority to regulate municipally owned beaches.

Background
New Jersey’s Public Access Rules significantly expanded DEP authority over public access to municipal beaches and tidal waterways. One of the new rules required municipalities located on tidal waterways to allow public access to those waterways “at all times,” unless the municipality obtained DEP permission to close those areas during late night hours based on threats to public safety or for “exigent circumstances.”1 Two other new rules required municipalities seeking appropriations from the state’s Shore Protection Fund to enter into a State Aid Agreement, which functionally obligated the borough to provide enough parking spaces to accommodate public demand and install public restrooms every one-half mile parallel to the beach.2
      Avalon, a borough situated on Seven Mile Beach, a barrier island off the coast of New Jersey, filed suit challenging the rules. The borough argued that the rules were not statutorily authorized and constituted an infringement on the statutory powers of municipal government. Furthermore, the town already provided significant public access to its beaches.
      Avalon’s entire four miles of beaches are open to the public without any restrictions except for the payment of a reasonable beach fee. In addition, the borough has sixty-two public streets that front the beach, the majority of which are open to the public. These streets combine to provide 5,700 on-street public parking spaces, in addition to 550 off-street parking spaces, 370 of which are within one-quarter mile of the beach.3 Avalon also maintains fifteen different public restrooms; however, the restrooms are not located every half-mile along the beachfront as required by the challenged regulation.4 Avalon claimed that it would have to install portable restrooms at certain locations to comply with the requirement.5

24-Hour Access
The New Jersey Superior Court first addressed the validity of the Public Access Rule that required all municipalities to allow public access to tidal waterways at all times, unless the municipality obtains the DEP’s permission to close the area. The application of this rule was not contingent upon the municipality applying for appropriations from the Shore Protection Fund; therefore, it applied to every municipality located on a tidal waterway. The court noted that the legislature had delegated broad and general police powers to municipalities for the protection of its residents and property owners. These general police powers not only extended to municipally-owned beaches, but municipalities also have the statutory authority to “close beaches and preclude the use of property,” even those falling under the umbrella of the public trust doctrine, “when the public safety and welfare is threatened.”6
      In contrast, the court found no legislative authority for the DEP to supervise a municipality’s operation of its beaches. Moreover, there was no basis to imply such authority since “[i]t is the municipalities, not the DEP, that owns and operates and therefore bears responsibility for the management of its beaches.”7 The court acknowledged that while it may be possible for some municipalities to keep their beaches open at all times, others may need to close areas as a matter of public safety. Either way, the court explained that a municipality is in a better position than the DEP to determine whether the beach poses a public safety risk warranting closure. Despite the DEP’s authority over land uses in coastal zones, the court determined that the legislature did not authorize the DEP to usurp municipal authority to manage and operate beaches, “including deciding when those areas should be open to the public.”8

Restrooms and Parking
The court turned next to assessing the validity of the Public Access Rule that required municipalities seeking an appropriation from the Shore Protection Funds to enter into a State Aid Agreement with the DEP. According to the regulations, any municipality wishing to participate in the Shore Protection Program may be required to provide additional public parking spaces and restrooms in proximity to the beachfront based upon DEP directives. The DEP claimed that the legislature had implicitly approved such requirements through the Shoreland Protection Program. The court found that the DEP’s authority under the Shore Protection Program was limited to “develop[ing] a priority system for ranking shore protection projects and establish[ing] appropriate criteria therefore.”9 The priority list compiled by the DEP, however, was simply a recommendation to the legislature, which retained the authority to determine which projects should be funded.
      The DEP also argued that the public trust doctrine provided a required authorization for the adoption of these regulations. While the public trust doctrine precludes municipalities from limiting public access, the doctrine does not require that a municipality provide a specific number of parking spaces or restrooms within a certain proximity of the beachfront. The court stated that the imposition of such obligations are under the exclusive jurisdiction of the legislature and the DEP cannot create, without express authority, regulations which require municipalities to provide public parking and restrooms near tidal waterways. In addition, the court noted that while its decision relied upon the DEP’s lack of statutory authorization, the parking rule was so vague that it would be subject to invalidation on the grounds that it failed to provide “regulatory standards that would inform the public and guide the agency in discharging its authorized function.”10

Conclusion
The court held that the DEP lacked the requisite legislative and statutory authority necessary to create the challenged regulations. Therefore, the Public Access Rules requiring a municipality to grant public access to tidal waterways at all times unless it obtains DEP permission and requiring any municipality that seeks appropriation from the Shore Protection Fund to enter into State Agreements that obligates the municipality to provide additional parking spaces and restrooms were invalid. The court’s invalidation of the rules for lack of statutory support opens the door for future challenges to all of the Public Access Rules. In the meantime, the DEP has filed a petition for certiorari with the New Jersey Supreme Court.

Endnotes
1.   Borough of Avalon v. New Jersey Dep’t of Envtl. Prot., 403 N.J. Super. 590, 595 (2008); see also N.J.A.C. 7:7E-8.11(f).
2.   Borough of Avalon, 403 N.J. Super. at 602; see also N.J.A.C. 7:7E-8A.2(c)(2)(i).
3.   Borough of Avalon, 403 N.J. Super. at 596.
4.   Id.; see also N.J.A.C. 7:7E-8.11(p)(7)(iii).
5.   Borough of Avalon, 403 N.J. Super. at 596.
6.   Id. at 599.
7.   Id.
8.   Id. at 601.
9.   Id. at 604; see also N.J.S.A. 13:19-16.2(a).
10. Borough of Avalon, 403 N.J. Super. at 608 (citing N.J. Soc. For Prevention of Cruelty to Animals v. N.J. Dep’t of Agric., 196 N.J. 366 (2008)).