DEP: Beach Access Regs- Update about Appellate ruling

[OPRA Reporter]

The postings at http://www.ventnorevoice.com/bulleti...read.php?t=715
about new DEP regulations affecting beach access and requirements for public accomodations prompted a look-up to Rutgers Law School's online resources here.

http://law-library.rutgers.edu/ilg/njlaw.html

Under the heading of NJ Regulations one can find all N.J.A.C. titles and chapters. The provisions that were extensively re-written during 2007 are alluded to by the highlighted general references found below.

§ 7:7-7.6 Coastal general permit for beach and dune maintenance activities

(a) This coastal general permit authorizes beach and dune maintenance activities provided:

1. The beach and dune maintenance activities are conducted in accordance with Best Management Practices as defined by the Department in the Coastal Zone Management rules at 7:7E-3A.2, 3A.3 and 3A.4 (routine beach maintenance, emergency post-storm beach restoration, and dune creation and maintenance, respectively);

2. The beach and dune maintenance activities shall not be conducted in any wetlands; and

3. Public access to the beach shall be provided in accordance with the lands and waters subject to public trust rights rule, 7:7E-3.50, and the public trust rights rule, 7:7E-8.11.

To force coastal towns to sign "new agreements" which reflect the rule-making activity that spell out 24/7 access to beaches and bays as well as parking and restroom accommodations, DEP used as leverage all funding sourced by the DEP to benefit such towns. This would include Green Acres funding (which accounts for around $1,000,000 in grants and low-cost 2% loans for the new Ventnor pier) and beach replenishment grants. That DEP funding for the pier may be getting withheld because Ventnor's past and current administrations have not signed the 2007 agreement and it might be somewhat "ephemeral" anyway since Ventnor appears to "owe" over $700,000 as a past-due billing for the 2003-04 dunes replenishment. The DEP could easily choose to erase the debt with a deduction from the newer pier funding commitment.

Avalon filed suit last November to challenge the new N.J.A.C. provisions as vague and improper even before their final effective date on December 17, 2007. It was joined in its suit, with amicus filings, by Stone Harbor and by the Cape May Board of Freeholders. When Avalon needed an emergency beach sand replenishment after the Mother's Day Storm this year, it was able to obtain funding from DEP without waiver of its rights under the suit (now heading for oral arguments in two weeks before the N.J. Appellate Division) and without being forced to sign onto the revised agreements apparently sent out to all coastal towns (including Ventnor) during 2007.

Ocean City, in order to obtain its own beach replenishment funding for this year, signed the revised DEP agreement and dropped its former beach curfew ordinance. Stone Harbor and Avalon, which have bars, pointed out that O.C. is a "dry town" and faced less potential for liability for drinking-related misadventures late at night on its beaches.

The American Litoral Society is the most recent entrant in the amicus filing festivities, and it will file on the "side" of the DEP.

The Philadelphia Evening Bulletin carried the following first installment of an investigative series about the controvery now in court. No second installment has come out yet.

http://www.thebulletin.us/site/index...d=576361&rfi=8

Inside Today's Bulletin
Pagliughi: NJ DEP Is Coercive
By: Chris Freind, The Bulletin
08/07/2008

The borough of Avalon, N.J., is refusing to cede to conditions attached to funding for beach replenishment by the New Jersey Department of Environmental Protection (DEP).

According to Avalon's Mayor, Martin Pagliughi, the DEP requires coastal communities seeking state assistance and permits for beach protection to sign a "State Aid Agreement."

The agreement would be wide-ranging in its regulatory authority, including rules for beach and waterway access, on-street parking and bathroom facilities.

Mr. Pagliughi has rejected the DEP's criteria and has taken legal action to have withheld funds released. A hearing in a state appellate court is scheduled for September.

Mr. Pagliughi sent a letter to homeowners last winter, outlining the reasons why the beach replenishment projects had not yet taken place, and explained the stipulations put forth by the DEP.

In an interview, Mr. Pagliughi said because beach erosion has always been a problem with many New Jersey coastal communities, consistent beach replenishment is necessary to protect public health, safety and welfare, as well as to protect billions of dollars in property and infrastructure.

"There was legislation passed in 1987 that dedicates $25 million a year from the Real Estate Transfer Tax to go into a beach protection fund ... even though Gov. [Jon] Corzine[, D-N.J.,] just took $9 million from that fund to keep the state parks open," Mr. Pagliughi said.

Since then, he said, the shore communities have made significant strides to protect themselves from a storm like a nor'easter that devastated Avalon 46 years ago.

"Even if we had a storm like 1962 again, we wouldn't sustain nearly the damage that we did back then. When you combine the federal, state and borough funds, we have spent about $50 million over the last 20 years - $9 million from the borough alone for beach fills," he said.

Improvements include extending the 8th Street Jetty, which incorporates an artificial reef to break up currents, and the construction of a new 4,000-foot seawall. "But we still have a bad erosion zone in the north end and are working with Stockton College and the Stevens Institute of Technology to find additional solutions," he said, adding that the problem will never fully dissipate.

Given that significant beach erosion is a never-ending issue, Mayor Pagliughi is flabbergasted that the DEP would withhold funds - and hold coastal towns "hostage", in order to affect what he referred to as "social engineering."

"I call it bureaucratic extortion," he said. "When we went to them last September for an emergency beach fill, they said 'Fine. Just sign this State Aid Agreement'. And they were trying to push it down our throat before it became their own rule! They didn't make it a rule until Nov. 15."

Mr. Pagliughi explained that the origin of the DEP's rules were rooted in its decision not to pay replenishment funds to fill some private beaches in North Jersey. Additionally, he remarked that towns such as Bellmawr and Spring Lake were the problem areas, when in the past these towns charged exorbitant beach fees to keep people off the island, which is "... exactly the opposite of what we do. Look, they have the tools to rectify these (particular) problem areas, but instead they use a shotgun approach to use along the entire coast. They have eminent domain and condemnation power, but then they would have to get involved in paying fair market value, and they don't want to spend any money. So they just made up these rules on their own."

He added that the 1987 legislation only dealt with coastal protection, and never mentioned bathrooms, parking or beach access.

"They just dreamed all this up. I told the DEP Commissioner (Lisa Jackson) that the agency has lost focus on what its mission is. I was always under the impression that the DEP's role was to protect the public health, safety and welfare. Where are you coming up with bathrooms, easements, and 24 hour bay and beach access? It makes no sense."

When asked what specific measures the DEP was mandating in its agreement, he said he was perplexed that stipulations were vague and open to interpretation.

"Adequate parking. What does that mean? We don't know. That's why we're suing them; it's too vague. What if they say that we have adequate parking now, but down the road a new DEP commissioner says that he interprets the rule differently and tells us we have to condemn properties and install parking lots by the beachfront? Who knows?"

When asked how the DEP would want Avalon to provide additional spaces, Mr. Pagliughi said that was the crux of the issue, in that they wouldn't specify any particular method, but just mandate that it occurred.

"There is no formula. There are no set standards. There is nothing that says 'This is what you have to do. Period. You should do this'. They left it too broad," Mr. Pagliughi stated.

He then described how Avalon already had extensive parking and restroom facilities.

"We have a parking lot on the beach that handles 950 cars, and we are the only shore town with NO parking meters. None. We put extra public restrooms next to the parking lot four years ago, in addition to what was already there, and even added to those facilities by installing portable units. Is that OK? They (the DEP) can't answer that. What are we supposed to do? Put port-a-potties at the end of each street and listen to the neighborhood scream? And who is going to pay for that? It amounts to unfunded mandates."

The aspect of the DEP agreement that generates the most ire in the mayor is the provision for 24-hour beach access.

"They want 24-hour beach AND bay access, which means all beaches and private marinas - and theoretically, even bayfront homes. This means that a marina would have to allow for people to get to the water around the clock, even at night. Can you imagine the liability? How do you guard a beach at three in the morning? That's our point!"

Repeated calls to DEP Commissioner Lisa Jackson for comment were not returned.

(The second installment will discuss liability issues and Avalon's lawsuit)

[OPRA Reporter]

The news that Cape May County joined the suit was reported here.

http://www.capemaycountyherald.com/a...it-against-dep

County to Join Avalon Suit Against DEP
By Herald Staff
CREST HAVEN — The state Appellate Division has granted the county’s motion to join the Borough of Avalon in its suit against the New Jersey Department of Environmental Protection, according to a release from Freeholder Director Daniel Beyel.

The Cape May County Board of Chosen Freeholders petitioned the court to support Avalon’s efforts to challenge a new state aid agreement drafted by the DEP.

The decision by the Appellate Division will allow the county to file a “friend of the court” brief to support Avalon’s challenge.

“It is impractical for the New Jersey Department of Environmental Protection to put these latest regulations in effect for every community in the Garden State,” said Beyel. “The freeholders recognize that Avalon’s arguments against this agreement are valid, and the county is supportive of Avalon’s court challenge”.

“We’re very pleased that the county freeholders recognize that there are problems with the latest version of the state aid agreement,” said Avalon Mayor Martin Pagliughi. “Avalon officials and county leadership both agree that the rules outlined in the latest version of the agreement should not be applicable to every coastal community in the state of New Jersey”.

The latest state aid agreement requires coastal communities to provide 24 hour a day, seven day a week access to all beaches, waterways and marinas. It also regulates how many parking spaces and public bathrooms a coastal community has to provide, although no specific formula to determine those numbers are included in the agreement.

“Avalon could not sign the state aid agreement because it left the community open to entering into open-ended agreements that were vague,” Pagliughi said. “Plus, at times, coastal communities need the ability to close beaches during storm events and other emergencies. This state aid agreement does not allow coastal towns to do that.”

Shore communities must sign a state aid agreement in order to secure permits that are needed for coastal protection projects.

Avalon filed a lawsuit against the DEP over the agreement in November. The case is expected to be heard on Sept. 16.

The news that Stone Harbor and Surf City joined the suit was reported here.

http://www.capemaycountyherald.com/a...lon-versus-dep

Stone Harbor Joins Avalon Versus DEP
By Leslie Truluck

STONE HARBOR — Borough officials have decided to support neighboring Avalon as a “friend of the court” in its opposition to the Department of Environmental Protection’s (DEP) State Aid Agreement, which Avalon officials believe is vague.

The appeal is now in the New Jersey Superior Court Appellate Division, where oral argument is scheduled for early fall.

Stone Harbor’s decision to join Avalon follows a similar decision made by the Cape May County Board of Chosen Freeholders to also oppose the State Aid Agreement. The county is also a “friend of the court” in this lawsuit.

Avalon officials said the agreement requires “sufficient” public parking, but without specific guidelines. The agreement would also require public restrooms every one half mile. Shore communities must sign the State Aid Agreement before getting permits and funding requested from the DEP or the Federal Government for beach replenishment projects.

Avalon was able to negotiate an emergency beach fill with the NJDEP for a North End beach fill last month without having to sign the State Aid Agreement.

“I was grateful that the leadership at the Department had an open mind and allowed us to do the beach fill that was needed with no major concessions on our end. But the fact of the matter still remains that the agreement is seriously flawed, and Avalon intends to fight it in court,” Avalon Mayor Martin Pagliughi said. “I believe elected officials in other shore communities and shore counties need to read the document, understand what it means, and join the growing list of government entities who oppose this policy.”

Municipal leaders in Surf City have also joined Avalon’s lawsuit regarding the State Aid Agreement.

Contact Truluck at (609) 886-8600 ext. 24 or at: ltruluck @cmcherald.com

The news that Ocean City lifted curfew to qualify for its recent beach replenishment was reported here.

http://www.philly.com/philly/news/20...from_time.html

Posted on Sun, Aug. 3, 2008

Sands free from time
By Jacqueline L. Urgo
Inquirer Staff Writer

OCEAN CITY, N.J. - Mauve and deep-orange light filtered across the darkening sky has long signaled the end of the Jersey Shore beach day.

But a state requirement that towns keep their beaches open 24/7 to qualify for tax-subsidized beach replenishment could soon have the fun lasting into the night.

In Ocean City, where a dusk beach curfew was lifted in June, the public can stroll the shore at all hours. Other beach restrictions - on dogs, bonfires, camping, sleeping, and swimming after lifeguards leave - remain.

"To me, the evening has always been the best time of the day on the beach. The light, the birds, the sounds - I love it," said artist Shereen Miller, 57, an Ocean City resident who acknowledged she previously broke the law to linger near the water.

"I'm glad that now I can't get kicked off if I want to hang out after sunset," she said.

Ocean City, the first Shore town to officially rescind its curfew, did so in a deal with the state Department of Environmental Protection to obtain money for a $7.5 million replenishment of its north beaches, said Jim Rutala, the town's business administrator. The project was completed in June.

"The ordinance is very narrow. People can stroll or sit on the beach, but that's about it," Rutala said. "So far, we've had no problems or incidents."

Taxpayers deserve unlimited access to natural resources that their dollars help maintain, the DEP has told towns. Agency officials cite the Public Trust Doctrine, applied since colonial times, which established the public's right to use tidal waterways and their shores, including the ocean, bays and tidal rivers.

But the idea of folks' setting foot on the sand after dark has rankled Cape May County and two of its beach towns.

Avalon and Stone Harbor have joined the county in a 2007 lawsuit that would keep the state from withholding money to municipalities not in compliance with DEP access requirements.

While provisions such as parking, beach pathways and rest rooms for the public have been sticking points in other locales, it's the possibility of people going wading at, say, 2 a.m. that concerns some officials in Cape May County.

"I don't think they were thinking straight when they said you should have 24-hour access to the beaches," Stone Harbor Mayor Suzanne Walters said.
Charlie Bowman, deputy chief of the Ocean City Beach Patrol and the Ocean City Fire Department, said expanding access in his town had not led to the problems some feared.

"I think when everyone first heard about it, they really worried about what could go on in the middle of the night on the beach," he said, "but we haven't had any problems reported."

Ocean City is a dry town, with no nightclubs or bars and a family-oriented reputation.

"People are in bed in the middle of the night here," Bowman said. "Maybe in towns where bars close late, they could have more problems, but we just don't have gangs of people running out and making noise or problems on the beach in the middle of the night."

In filing suit, Avalon Mayor Martin Pagliughi called the 2007 DEP regulations "short-sighted policies that are vague and ridiculous." In particular, he said, all-hours beach access could leave municipalities open to lawsuits.

Avalon and Stone Harbor do have clubs and bars frequented by a young crowd in the summer. After a few cocktails, vacationers could be seduced by the notion of a midnight stroll in the surf, where they could be injured or worse.

Danger exists even before the sun sets, Pagliughi said. Though posted regulations forbid swimming after the beach patrol leaves at 5:30 p.m., the temptation to go in the water may be too great for some and could lead to drownings. In Wildwood last month, a man died when a rip current carried him away about 7 p.m.

"It boggles my mind that Ocean City doesn't understand the liability of 24-hour beach access," Pagliughi said. "I think that Ocean City went along with it just to get a beach fill."

Despite Avalon's lawsuit, the borough obtained from the state 75 percent of the money it needed for an emergency $2.4 million north-end beach replenishment in June.

The DEP declined to comment on the suit or why it was willing to provide Avalon with funding, but indicated that it was firmly committed to uphold the Public Trust Doctrine.

"That doctrine envisions that people have the right to enjoy the beaches at all times, not just 9 to 5," said Karen Hershey, a DEP spokeswoman.

"If there are extenuating circumstances for a town not wanting to comply, we are willing to work with a municipality," she said, "but maintaining public access 24/7 is our primary goal."
________________________________________
Contact staff writer Jacqueline L. Urgo at 609-823-9629 or jurgo@phillynews.com.

[OPRA Reporter]

Today's news about the American Littoral Society weighing in with an amicus brief in support of the new rules was reported here.

http://www.courierpostonline.com/app...808270339/1006

Littoral Society opposes privatizing N.J. beaches
COURIERPOSTONLINE.COM • AUGUST 27, 2008

The American Littoral Society has received permission from the Appellate Division of the Superior Court of New Jersey to appear as a "friend of the court" in a lawsuit challenging New Jersey's new public beach access rules.

"The litigation brought by the Borough of Avalon threatens to undermine this effort and privatize the shore," said Tim Dillingham, the society's executive director.

The litigation seeks to invalidate public access rules adopted by New Jersey Department of Environmental Protection in 2007. A key element of the rules being attacked is the requirement that towns receiving federal and state tax dollars for beach protection provide regular access points to the beach.

[OPRA Reporter]

The reworked language in the N.J.A.C. is below.

§ 7:7E-8.11 Public trust rights





(a) Public trust rights to tidal waterways and their shores (public trust rights) established by the Public Trust Doctrine include public access which is the ability of the public to pass physically and visually to, from and along lands and waters subject to public trust rights as defined at 7:7E-3.50, and to use these lands and waters for activities such as swimming, sunbathing, fishing, surfing, sport diving, bird watching, walking and boating. Public trust rights also include the right to perpendicular and linear access. Public accessways and public access areas provide a means for the public to pass along and use lands and waters subject to public trust rights.




(b) When used in this section, the following words and terms have the following meanings, unless the context clearly indicates otherwise:




"Green Acres funding" means a loan or matching grant, or both, to a local government unit, or a matching grant to a nonprofit, for the acquisition of land or the development of outdoor recreation and conservation facility(ies) provided by the Department's Green Acres Program in accordance with 7:36.





"Held" when used with reference to land means owned, leased, or otherwise controlled.




"Natural area" means an area that has retained its natural character, as evidenced by the presence of woody vegetation (trees, saplings, scrub-shrub vegetation) or rare or endangered plants. A disturbed area may be considered a natural area if such vegetation is present. A natural area does not include maintained lawns or areas landscaped with non-native herbaceous plants.




"Paper street" means the street shown on a recorded plan but never built.




"Public accessway" means a route that provides a means for the public to reach, pass along, and/or use lands and waters subject to public trust rights. Public accessways include streets, paths, trails, walkways, easements, paper streets, dune walkovers/walkways, piers and other rights-of-way.




"Shore Protection Program funding" means monies from the Shore Protection Fund established by N.J.S.A. 13:19-16 and any other Department money provided for shore protection projects associated with the protection, stabilization, restoration or maintenance of the shore and adjacent land, including beach nourishment projects and land acquisitions. A State Aid Agreement is the means by which a municipality participates in Shore Protection Program funding.




"State Aid Agreement" means a cost sharing agreement entered into by the Department and a municipality for the construction of a shore protection or beach nourishment project. The State Aid Agreement shall describe the project and project area for purposes of compliance with (p)7ii through vi and (p)8ii through v below in recognition of the phasing of a large-scale or multi-phase shore protection or beach nourishment project.




(c) (Reserved)




(d) Except as otherwise provided at (f) below, development on or adjacent to all tidal waterways and their shores shall provide on-site, permanent, unobstructed public access to the tidal waterway and its shores at all times, including both visual and physical access. Specific requirements for sites located along the Arthur Kill, Kill Van Kull west of Bayonne Bridge, Newark Bay, Delaware River from the Trenton Makes Bridge to the CAFRA boundary, Elizabeth River, Hackensack River, Passaic River, Rahway River, Raritan River, Cohansey River in Bridgeton City, and Maurice River in Millville City are found at (e) below. Public accessways and public access areas shall:




1. Include perpendicular access and a linear area along the tidal waterway and its entire shore; and




2. If located in a natural area of a tidal waterway, be designed to minimize the impacts to the natural area and tidal waterway including impacts to habitat value, vegetation and water quality.




(e) Except as provided in (f) below, in addition to the requirements of (d) above, the perpendicular access and linear area provided for sites located along the Arthur Kill, Kill Van Kull west of Bayonne Bridge, Newark Bay, Delaware River from the Trenton Makes Bridge to the CAFRA boundary, Elizabeth River, Hackensack River, Passaic River, Rahway River, Raritan River, Cohansey River in Bridgeton City, and Maurice River in Millville City, shall comply with the following. The standards for public access along the Hudson River Waterfront Area are set forth at 7:7E-3.48.





1. The linear area shall consist of a walkway that meets the following:




i. The minimum width of walkway free of obstruction shall be 16 feet; and




ii. An area a minimum of 30 feet wide, including the walkway area, shall be permanently protected by a conservation restriction; and




2. The perpendicular access shall consist of a walkway that meets the following:




i. The minimum width of the walkway free of obstruction shall be 10 feet;




ii. An area a minimum of 20 feet wide, including the walkway area shall be permanently protected by a conservation restriction; and




iii. The linear distance between perpendicular accessways shall not exceed one-half mile as measured generally parallel to the waterway; and




3. The Department may reduce the walkway width requirements at (e)1i and 2i above, as necessary to protect endangered and threatened wildlife or vegetation species habitat, critical wildlife habitat as defined at 7:7-3.39, natural areas or existing infrastructure.




(f) The permanent on-site public access required at (d) and (e) above may be modified in the following circumstances. However, in no case shall such modification constitute permanent relinquishment of public trust rights of access to and use of tidal waterways and their shores.

 

[OPRA Reporter]

Continuing the sections of revised language:

1. Public access to tidal waterways and their shores shall be available at all times. However, the Department may allow closure of an area otherwise available for public access during specified late night hours upon documentation of unique circumstances, other than the risk associated with tidal waterways, that threaten public safety and warrant such closure. In no case shall physical barriers be used to close public access. This exception does not apply to the Hudson River Waterfront Area or to the waterways listed in (e) above;




2. The Department may allow, require or impose temporary restrictions to public access, including closure of an area otherwise subject to public access, when it determines:




i. Exigent circumstances of public safety or security, or repair, maintenance, or construction relating to any public access infrastructure such as a walkway or boardwalk exist, with such closure to terminate immediately when such exigent circumstances cease to exist;




ii. Restrictions are necessary to protect endangered or threatened wildlife or plant species from disturbance or destruction; or




iii. Restrictions are necessary to protect other critical wildlife resources such as seasonal assemblages of wildlife in areas that provide critical feeding, roosting, resting or staging habitat;




3. Where development of a new or at an existing energy facility, industrial use, port use, airport, railroad, or military facility is proposed and the Department determines that perpendicular access and/or a linear area along the entire shore of the tidal waterway is not practicable based on the risk of injury from existing or proposed hazardous operations, or substantial existing and permanent obstructions, and no measures can be taken to avert these risks:




i. The linear public access that would be required in accordance with (d) above on site shall be reconfigured and enhanced to accommodate such structures and address such risks; or




ii. If public access on site is not practicable in accordance with (f)3i above, alternate public access of comparable use to the public shall be provided at a nearby off site location;




4. Where development of a new or at an existing two-unit (excluding duplexes) or three-unit residential development, or associated accessory development or associated shore protection structure is proposed, the Department may allow the provision of alternate public access on-site or at a nearby offsite location based on an evaluation of the size of the site, the character of the waterway, and the availability and type of public access in the vicinity, provided (f)4i through iii below are met. This paragraph does not apply to the Hudson River Waterfront Area and the waterways listed at (e) above. Public access requirements may be imposed as a condition of Shore Protection Program funding, pursuant to (p) below.




i. The development does not result in the development of more than three residential units either solely or in conjunction with a previous development as defined at 7:7-2.1(b)8;





ii. No beach and dune maintenance activities are proposed; and




iii. The site is not located on or adjacent to the Atlantic Ocean, Sandy Hook Bay, Raritan Bay or Delaware Bay and their shores;




5. Where development of a new or at an existing two-unit or three-unit (excluding duplexes) residential development, or associated accessory development, or associated shore protection structure is proposed that meets (f)4i above and is located on a site that is located along the Arthur Kill, Kill Van Kull west of Bayonne Bridge, Newark Bay, Delaware River from the Trenton Makes Bridge to the CAFRA boundary, Elizabeth River, Hackensack River, Passaic River, Rahway River, Raritan River, Cohansey River in Bridgeton City, and Maurice River in Millville City, linear and perpendicular public access shall be provided in accordance with the following:




i. The linear area shall consist of a walkway, that meets the following:




(1) The minimum width of walkway free of obstruction shall be 10 feet; and




(2) An area a minimum of 20 feet wide, including the walkway area shall be permanently protected by a conservation restriction; and




ii. The perpendicular access shall consist of a walkway that meets the following:




(1) The minimum width of the walkway free of obstruction shall be 10 feet;




(2) An area a minimum of 10 feet wide, including the walkway area shall be permanently protected by a conservation restriction;




6. Except as provided in (f)7 below, the Department shall not require public access where development of a new or at an existing single family home, duplex, or associated accessory development or associated shore protection structure is proposed, provided (f)6i through iii below are met. Public access requirements may be imposed as a condition of Shore Protection Program funding, pursuant to (p) below. This paragraph does not apply to the Hudson River Waterfront Area at 7:7E-3.48.





i. The development does not result in the development of more than one single family home or duplex either solely or in conjunction with a previous development as defined at 7:7-2.1(b)8;





ii. No beach and dune maintenance activities are proposed; and




iii. The site does not include a beach on or adjacent to the Atlantic Ocean, Sandy Hook Bay, Raritan Bay or Delaware Bay and their shores; or




7. Where development of a new or at an existing single family home, duplex, or associated accessory development, or associated shore protection structure is proposed that meets (f)6i above and is located on a site that includes a beach on which beach and dune maintenance activities are proposed or a beach on or adjacent to the Atlantic Ocean, Sandy Hook Bay, Raritan Bay or Delaware Bay and their shores, public access along and use of the beach and the shore shall be provided. Additional requirements may be imposed as a condition of Shore Protection Program funding, pursuant to (p) below.




(g) Public access must be available on a nondiscriminatory basis. All establishments, including municipalities, counties, marinas, condominium associations, homeowner associations and beach clubs, which control access to tidal waterways and their shores shall comply with the Law Against Discrimination, N.J.S.A. 10:5-1 et seq.




(h) Public access to tidal waterways and their shores shall be clearly marked. Department approved public access signs shall be installed at each public accessway, public access area and/or public parking area at the development site and maintained in perpetuity by the permittee and its successors in title and interest. 7:7E-8.11(p) contains the standards for signs for municipalities that participate in Shore Protection Program funding. Subsection (q) below contains the standards for signs for municipalities, counties and nonprofits that receive Green Acres funding for a Green Acres project site.




(i) Activities that have the effect of discouraging or preventing the exercise of public trust rights are prohibited. These activities include, but are not limited to, requiring photographic identification, requiring a liability waiver, requiring the purchase of drinks or food from a specific vendor, or prohibiting bringing beach equipment such as blankets or beach chairs.

[OPRA Reporter]

Continuing with NJAC:

(j) Parking shall be provided for the public to access tidal waterways and their shores, except where public access is not required in accordance with (f)6 above or the project is limited in scope in accordance with (f)7 above. Subsection (p) below contains the parking standards for municipalities that participate in Shore Protection Program funding. Subsection (q) below contains the parking standards for municipalities, counties and nonprofits that receive Green Acres funding for a Green Acres project site. All other development shall provide parking as follows:




1. For developments which propose to reduce existing on-street or off-street parking that is used by the public for access to tidal waterways and their shores, mitigation for the loss of these public parking areas shall be required at a minimum creation to loss ratio of 1:1. This mitigation shall occur through the creation of new parking spaces within the proposed development site or at another location within 250 feet of the proposed development site;




2. The area set aside for off-street parking shall be dedicated for public access parking through the recording of a conservation restriction maintaining the parking spaces in perpetuity; and




3. The area set aside for on-street parking shall be dedicated for public access parking through municipal ordinance.




(k) Development on or adjacent to tidal waterways and their shores shall provide barrier free access where feasible and warranted by the character of the site.




(l) Development on or adjacent to tidal waterways and their shores shall incorporate fishing access and associated amenities to the maximum extent practicable within the area provided for public access. In the case of a beach, fishing access shall not be required in areas designated for swimming during hours designated for swimming.




(m) A fee for use of bathing and recreational facilities and safeguards, such as lifeguards, toilets, showers, and parking, at publicly or privately owned beach or waterfront areas, may be charged in accordance with (m)1 through 6 below. However, no fees shall be charged solely for access to or use of tidal waterways and their shores. The fee schedule and documentation of compliance with this paragraph shall be submitted to the Department by the permittee, Shore Protection Program participant or recipient of Green Acres funding for a Green Acres project site, and its successors in title and interest upon request.




1. Fees shall be no greater than that which is required to operate and maintain the facility, taking into consideration basic support amenities provided, such as lifeguards, restroom/shower facilities and trash pickup. This requirement applies to facilities and services directly associated with using the tidal waterways and their shores and does not apply to additional amenities such as cabanas, pools, or restaurants;




2. Fees shall not discriminate between residents and non-residents or on any other basis, except as allowed by this rule or other law;




3. Fees shall not be charged for children under the age of 12 years;




4. Badges or passes must be available for sale at times and places that are reasonably convenient for the public. Badges and passes shall be offered for sale in person at the beach or waterfront area during the hours that the beach is staffed. In addition, if the entity that owns or operates the beach or waterfront area offers private memberships, public badges or passes must be offered for sale to the public in the same manner, times and places as private memberships;




5. Weekly, monthly or seasonal badges or passes shall be transferable at the discretion of the badge or pass holder; and




6. Public access to and use of tidal waterways and their shores may not be conditioned upon providing identification or signing or otherwise agreeing to any waiver or similar disclaimer of rights.




(n) The areas set aside for public access to tidal waterways and their shores shall be permanently dedicated for public use through the recording of a Department approved conservation restriction under the New Jersey Conservation Restriction and Historic Preservation Restriction Act, N.J.S.A. 13:8B-1 et seq., maintaining the publicly dedicated areas in perpetuity. Subsection (p) below contains the conservation restriction standards for municipalities that participate in Shore Protection Program funding. Subsection (q) below contains the conservation restriction standards for municipalities, counties and nonprofits that receive Green Acres funding for a Green Acres project site. 7:7E-8A.4 contains the recording requirements for all conservation restrictions.




(o) No authorization or approval under this chapter shall be deemed to relinquish public rights of access to and use of lands and waters subject to public trust rights.

[OPRA Reporter]

More from the NJAC.

(p) Municipalities that participate in Shore Protection Program funding through a State Aid Agreement shall:




1. Submit the following to the Department for approval prior to issuance of a coastal permit:




i. A draft public access plan that meets the requirements of 7:7E-8A.2 and 8A.3 and a draft ordinance adopting the public access plan; and




ii. A draft Public Access Instrument that meets the requirements of 7:7E-8A.5;





2. Comply with (c) through (m) above, as applicable for municipally held lands on or adjacent to tidal waterways and their shores. Compliance with (e) above will be required only at a shore protection or beach nourishment project proposed along one of the waterways listed at (e) above and not for other municipally held lands;




3. Prior to commencement of construction or nourishment, provide public access to all tidal waterways and their shores on or adjacent to lands held by the municipality;




4. Prior to commencement of construction or nourishment, adopt the ordinance and record the Public Access Instrument approved by the Department pursuant to (p)1 above;




5. Prior to commencement of construction or nourishment, repeal any ordinance that limits access to or use of tidal waterways and their shores or is in conflict with the Public Trust Doctrine;




6. Not enact or adopt ordinances or engage in activities in conflict with public access to or use of tidal waterways and their shores, such as the placing of signs, structures, vegetation, parking restrictions or any other means, that limit access to or use of tidal waterways and their shores;




7. For shore protection and beach nourishment projects described in the State Aid Agreement and located on or adjacent to the Atlantic Ocean, Sandy Hook Bay, Raritan Bay or Delaware Bay and their shores:




i. Prior to commencement of construction or nourishment, record in accordance with 7:7E-8A.4, a Department-approved conservation restriction that maintains the following areas for public access in perpetuity:




(1) The entire project, except those portions of jetties and groins on which public access is not required in accordance with ii below, and all beaches within the municipality along the waterway on which the project occurs. If a municipality cannot obtain the required conservation restriction for all privately held beaches outside of the project area within the municipality along the waterway on which the project occurs, the shore protection or beach nourishment project can proceed only if the municipality or State has entered into condemnation or other legal proceedings to diligently obtain the necessary easements;




(2) The public accessways held by the municipality that lead to or provide access to tidal waterways and their shores and are not listed in the Public Access Instrument approved by the Department pursuant to (p)1 above, including paths, trails, dune walkovers/walkways, and piers, and public accessways proposed pursuant to (p)7iii below; and




(3) All parking areas identified in (p)7v below;




ii. Immediately upon completion of project construction, provide public access to the entire project and to all beaches within the municipality along the waterway on which the project occurs. Public access is not required to those portions of jetties and groins where it is demonstrated that access poses an extraordinary risk of injury;




iii. Immediately upon completion of project construction, provide public accessways to the project and to all beaches within the municipality along the waterway on which the project occurs. The linear distance between public accessways shall not exceed one-quarter mile as measured generally parallel to the beach/shore, except as provided at (p)7iii(1) below. In areas where existing public accessways, including, but not limited to, streets, roads, paper streets, paths, trails, easements, dune walkovers/walkways, piers and other dedicated public rights-of-way are closer than one-quarter mile apart, the number of existing access points shall not be reduced;




(1) The linear distance between public accessways can exceed one-quarter mile provided:




(A) The average interval between public accessways within the municipality along the waterway on which the project occurs is one-quarter mile; and




(B) In no case is the interval between public accessways greater than three-eighths mile;

 

[OPRA Reporter]

Picking it up from above ...

(B) In no case is the interval between public accessways greater than three-eighths mile;




iv. Immediately upon completion of project construction, the public restroom facilities that are identified in the approved public access plan required in accordance with (p)1 above and located within the project area and within one-quarter mile of the project area, as measured generally parallel to the beach/shore, shall be open to the public for use. The restroom facilities shall be open to the public for use from the beginning of Memorial Day weekend through September 30, at minimum;




v. Immediately upon completion of project construction, provide parking sufficient to accommodate public demand to access the project and the beach capacity of all beaches within the municipality along that portion of the waterway on which the project occurs. The Department may allow a reduction in the number of parking spaces required upon documentation that the municipality has exhausted all possibilities to provide the required number of parking spaces. Alternative methods of providing adequate parking that must be considered include land acquisition, restriping or reconfiguring parking, removing existing parking restrictions and providing remote/offsite parking with shuttle service; and




vi. Immediately upon completion of project construction, install Department approved public access signs. Signs shall be maintained in perpetuity by the participant in Shore Protection Project funding at each public accessway and/or public access area along the waterway on which the project occurs;




8. For shore protection and beach nourishment projects described in the State Aid Agreement and located on or adjacent to waterways other than the Atlantic Ocean, Sandy Hook Bay, Raritan Bay or Delaware Bay and their shores:




i. Prior to commencement of project construction, record in accordance with 7:7E-8A.4, a Department-approved conservation restriction that maintains the following for public access in perpetuity:




(1) The entire shore protection project or nourished beach, except for those portions of jetties and groins on which public access is not required in accordance with (p)8ii below;




(2) The public accessways held by the municipality that lead to or provide access to the shore protection project or nourished beach and are not listed in the Public Access Instrument approved by the Department pursuant to (p)1 above, including paths, trails, dune walkovers/walkways, and piers, and public accessways proposed pursuant to (p)8iii below; and




(3) All parking areas identified in (p)8iv below;




ii. Immediately upon completion of project construction, permit public access to the entire project. Public access is not required to those portions of jetties and groins where it is demonstrated that access poses an extraordinary risk of injury;




iii. Immediately upon completion of project construction, provide accessways along a linear shore protection or beach nourishment project of one-half mile or more in length at an interval not to exceed one-quarter mile as measured parallel to the project structure;




iv. Immediately upon completion of project construction, provide parking sufficient to accommodate public demand to access the entire project, taking into account the availability of existing public parking; and




v. Immediately upon completion of project construction, install Department approved public access signs. Signs shall be maintained in perpetuity by the participant in Shore Protection Project funding at the site of the project, except at jetties and groins that are not designed for public use;

[OPRA Reporter]

Final sections.

9. Within 180 days of completion of an emergency shore protection or beach nourishment project, comply with (p)1 through 8 above; and




10. Any municipality that participates in Shore Protection Program funding after December 17, 2007, that undertakes any action that is determined by the Department to be in conflict with this section or the Public Trust Doctrine, will be required to take corrective action within 30 days of notification by the Department of the conflict with this regulation or the Public Trust Doctrine. If the Shore Protection Program funding participant does not take corrective action, or if the corrective action taken is not adequate, then the Department may:




i. Withhold Shore Protection Program funding;




ii. Terminate the State Aid Agreement;




iii. Demand immediate repayment to the Shore Protection Fund of all Shore Protection Program funding for the project(s) in which the municipality participated; and/or




iv. Pursue any other specific remedies in the State Aid Agreement.




(q) To be eligible for Green Acres funding for a Green Acres project site, a municipality, county, or nonprofit organization shall comply with (q)1 through 4 below. For the purposes of this subsection, the "Green Acres project site" is the land that is the subject of an application for Green Acres funding that contains or is adjacent to tidal waterways and their shores. Applicants for Green Acres funding for a Green Acres project site shall:




1. Submit to the Department for approval, prior to application for Green Acres funding for a Green Acres project site, a public access plan that meets the requirements at 7:7E-8A.2 and 8A.3.




i. An applicant that is a municipality or county shall also submit a draft ordinance adopting the public access plan;




2. Comply with (c) through (m) above, as applicable. Compliance with (e) above will be required only where the project site is located along one of the waterways listed at (e) above.




3. Provide public access to all tidal waterways and their shores on or adjacent to lands held by the applicant;




4. Not enact or adopt ordinances or engage in activities in conflict with the Public Trust Doctrine, such as the placing of signs, structures, vegetation, parking restrictions or any other means, that limit access to or use of tidal waterways and their shores;




5. In addition to complying with (q)1 through 4 above, an applicant that is a municipality shall:




i. Prior to application for Green Acres funding for a Green Acres project site, submit to the Department for approval, a draft Public Access Instrument that meets the requirements of 7:7E-8A.5;





ii. Prior to disbursement of Green Acres funding for a Green Acres project site, repeal any ordinance that limits access to and use of tidal waterways and their shores or is in conflict with the Public Trust Doctrine; and




iii. Prior to disbursement of Green Acres funding for a Green Acres project site, adopt the ordinance and record the Public Access Instrument approved by the Department pursuant to (q)1i and 5i above, respectively;




6. In addition to complying with (q)1 through 4 above, prior to disbursement of Green Acres funding for a Green Acres project site, an applicant that is a county shall adopt an ordinance adopting the public access plan approved by the Department pursuant to (q)1 above;




7. Immediately upon disbursement of Green Acres funding for a Green Acres project site, provide public access along the tidal waterway and its entire shore at the Green Acres project site;




8. Immediately upon disbursement of Green Acres funding for a Green Acres project site, provide at least one accessway to the tidal waterway, its shore and the project site across land held by the recipient of Green Acres funding. Additional accessways shall be provided as necessary given the size, location, and proposed use of the site;




9. Immediately upon disbursement of Green Acres funding for a Green Acres project site, install and maintain in perpetuity Department approved public access signs at each public accessway and/or public access area at the project site;




10. Immediately upon disbursement of Green Acres funding for a Green Acres project site, record a Department-approved conservation restriction maintaining the following areas for public access in perpetuity. All lands held by the municipality or county for recreation and conservation purposes also must be listed on the Recreation and Open Space Inventory for the municipality and county, respectively, as required by Green Acres as a condition of funding pursuant to 7:36.





i. The project site;




ii. The public accessways held by the municipality that lead to or provide access to tidal waterways and their shores and are not listed in the Public Access Instrument, including paths, trails, dune walkovers/walkways, and piers and public accessways pursuant to 8 above; and




iii. All parking areas identified in (q)11 below;




11. Within 10 days of completion of a Green Acres funded development for a Green Acres project site or within 180 days of disbursement of Green Acres funding for acquisition for a Green Acres project site, provide public restrooms and parking for the project site as directed by the Department based on the proposed use of the project site and the nature and extent of public demand; and




12. Any Green Acres funding recipient for a Green Acres project site that, after December 17, 2007, undertakes any action that is determined by the Department to be in conflict with the Public Trust Doctrine, will be required to take corrective action within 30 days of notification by the Department of the conflict with the Public Trust Doctrine. If the Green Acres funding recipient for a Green Acres project site does not take corrective action, or if the corrective action taken is not adequate, then the Department may:




i. Withhold Green Acres funding;




ii. Terminate the Green Acres Project Agreement executed pursuant to 7:36; and/or





iii. Demand immediate repayment of all Green Acres funding that has been disbursed to funding recipient.




(r) Rationale: See the OAL Note at the beginning of this subchapter.

 

[VentnorMod]

http://www.pressofatlanticcity.com/1...ry/321595.html

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24-hour beaches not DEP's call, court says
By BRIAN IANIERI Staff Writer, 609-463-6713
Published: Thursday, November 20, 2008

AVALON - The state Department of Environmental Protection had no authority to order shore towns to allow 24-hour beach access or to tell them where to put beachfront bathrooms, a state appeals court ruled Wednesday.
The lawsuit involved municipal authority, parking lots, latrines and some bad blood between Avalon and the agency that plays a significant role in regulating the state's beachfront. Avalon sued in November 2007 after the DEP set beach-access rules and other requirements designed to make the state's beaches and waterways more accessible to the public. However, Avalon argued the new rules were potentially dangerous to beachgoers and required the borough to ask the state's permission if it needed to close beaches for public safety reasons. The rules also could have cost Avalon millions of dollars if the borough needed to buy property to build parking lots and bathrooms near the beach.

The lawsuit was watched closely by officials in other shore towns, including Surf City and Stone Harbor, because the state was requiring municipalities to sign the agreement or risk losing millions in funding for beach projects.

"This was Big Brother looking down our necks and telling us how we needed to live our life," Surf City Mayor Leonard T. Connors said. "And we knocked them off."

Avalon and Stone Harbor are among a long list of coastal towns asking for state funding to rebuild beaches battered by storms.

The appellate court said the DEP's regulations "infringe upon the statutory powers of municipal government."

"The Legislature did not authorize the DEP to pre-empt the basic municipal power to manage and control municipally owned beaches, including deciding when those areas should open to the public," the court said. Also, the ruling said, the DEP alone does not have the authority to withhold shore-protection funds if municipalities do not provide additional parking spaces or restrooms close to the beach.

"We felt from the beginning of this entire thing - we consulted with quite a few lawyers - we knew this whole thing was illegal to begin with," Avalon Mayor Martin Pagliughi said.

The regulations would have required Avalon, and other shore towns, to notify the state when it wanted to close beaches, even for public-safety concerns such as tropical storms or hurricanes, Avalon Solicitor Stephen Barse said.
"Nobody is better equipped to make those kind of decisions and calls than the people in the town," Barse said. "Each town has different aspects to it that might be a threat in one town (and not in) another because of the coastal structure."

Municipalities, which own, operate and bear responsibility for the management of the beaches and public safety on them, are in a better position than the DEP to make that call, the court said. Related items in the state-aid agreements required municipalities to place public bathrooms at half-mile intervals and also required sufficient public parking, a regulation the court said was too vague. Avalon, which has four miles of oceanfront, said it has 5,700 on-street public parking spaces and 550 off-street parking spots. Avalon said it has public restrooms at 15 different locations, but those restrooms are not all located within a half-mile of one another along the oceanfront, as required by one of the rules.

Attorney Gordon Litwin represented the American Littoral Society, which supported the DEP's rules and the parking regulations because of their direct impact on public beach access. Litwin said he was disappointed with the court's decision on parking matters. Although Avalon provided sufficient parking, that is not the case across New Jersey, he said.

"Perhaps the court didn't see the parking issue in the context of most municipalities," Litwin said. "When you decide to carpet the beaches in sand at public expense, it's our feeling that does create a right for its use for the public, and without parking they can't use it. You just can't get there from here. The parking makes public access meaningful."

Pagliughi said he was disappointed that only a few municipalities, including neighboring Stone Harbor and Surf City in Ocean County, joined Avalon's fight with the DEP. The Cape May County Board of Chosen Freeholders also filed a "friend of the court" brief supporting Avalon's cause.


Staff writer Donna Weaver contributed to this report.