24-Hour Beaches not DEP's call, Court Says

#42 11/19/08,24-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.

E-mail Brian Ianieri:

BIanieri@pressofac.com