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Milgram v. Ginaldi

July 15, 2008

ANNE MILGRAM, ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, AND THE STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION, PLAINTIFFS-APPELLANTS,
v.
MICHAEL GINALDI, MARTIN W. CAULFIELD, MARGARET C. CAULFIELD, CAROLE J. MCCANN AND 10 SURF CITY, LLC, DEFENDANTS-RESPONDENTS, AND DEBRA WRIGHT, DEFENDANT. LONG BEACH ISLAND OCEANFRONT PROPERTY OWNERS, INTERVENORS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Chancery Division, Ocean County, Docket No. C-264-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 5, 2008

Before Judges Fuentes, Grall and Chambers.

The New Jersey Division of Environmental Protection (NJDEP) appeals from the order of the Chancery Division, General Equity Part, denying its application to obtain a preliminary injunction directing defendants, owners of oceanfront property, to grant a public right of access to a sand dune located on the owners' properties. The trial court denied the relief and dismissed the complaint, finding that NJDEP had to file an action at law in accordance with the Eminent Domain Act of 1971, N.J.S.A. 20:3-1 to -50, if it wanted to obtain a public right of access to the property. We affirm.

I.

Before addressing the legal issues involved, we will summarize the environmental and governmental forces that have converged to create the current cause of action. Long Beach Island (LBI) is an eighteen-mile barrier island in Ocean County. As such, it is periodically subject to severe storms, causing constant erosion on the average of one foot per year. It is not disputed that these storms and erosion destroy natural resources and property and threaten public safety.

To restore the eroded beaches and to protect against storms, LBI decided to take part in a beach nourishment project called the Barnegat Inlet to Little Egg Inlet, New Jersey Shore Protection Project. The project represented a fifty-year undertaking in which the United States Army Corps of Engineers would: (1) repair and reconstruct beaches and dunes that had been eroded and damaged by storms; and (2) maintain the beach and dunes for the life of the project.

The plan for carrying out this project entailed constructing on privately and municipally owned property a dune and a berm that would be slightly larger than the dune and berm already in existence. This newly constructed dune would be twenty-two feet high and thirty feet wide; the new berm would be 125-feet wide. The plan recommended a fifty-year period of nourishment in order to maintain the dune and berm.

To accomplish this, the Army Corps reported that it would need a standard restrictive dune easement, a perpetual beach nourishment easement, and a temporary work area easement. The dune and beach nourishment easements would grant a perpetual right to construct and maintain a dune system and a beach berm, including the right to plant vegetation along the dune or remove vegetation or any other structures. The grantor (property owner) would retain the right to construct a "walkover structure" over the dune. The temporary work area easement would authorize the Army Corps and its contractors to enter the land to construct the dune and beach berm and would be limited to two years.

In 2000, Congress authorized work for the project. On August 17, 2005, NJDEP signed a Project Cooperation Agreement with the Army Corps, obligating the Army Corps to place "suitable beach fill to form a dune at an elevation of .0 feet . . . extending from Barnegat Inlet to Little Egg Inlet, generally referred to as Long Beach Island." The length of the dune was roughly 89,000 feet. Along the dune, the Army Corps would plant 347 acres of dune grass and place 194,000 linear feet of sand fencing. The agreement described that work as the "initial construction."

For a period of fifty years after beginning the initial construction, the Army Corps would periodically (at least twice a year and after storms) survey the initial construction for erosion and damage, replenishing any part as needed. In exchange, the NJDEP agreed to: (1) "provide all lands, easements, rights-of-way, and suitable borrow and dredge or excavated material disposal areas" that the Army Corps determines are necessary; (2) "ensure continued conditions of public ownership and use of the shore upon which the amount of Federal participation is based;" (3) "prescribe and enforce regulations to prevent obstruction of or encroachment on the Project that would reduce the level of protection it affords or that would hinder operation or maintenance of the Project;" (4) "provide and maintain necessary access roads, parking areas, and other public use facilities open and available to all on equal terms;" and (5) pay its share of the expenses in accordance with the policy set out in the Department of Army regulation. The Army Corps agreed to give the State a credit for costs incurred in the event that NJDEP had to pay owners for land or easements.

The project began in Surf City. Municipal officials sent a proposed easement to affected property owners entitled: "Deed of Dedication and Perpetual Storm Damage Reduction Easement." Surf City officials stated that the easement was "Army Corps-approved." The form of easement document recited that in exchange for one dollar*fn1 and the protections afforded by the project, the owner was granting the State, Surf City and its assigns "[a] perpetual and assignable easement and right-of-way in, on, over and across . . . the area east of the established bulkhead line" for the purposes of constructing and maintaining "a public beach, a dune system, and other erosion control and storm damage reduction measures together with appurtenances thereto."

The proposed easement further included a "right of public access and use," which could be limited by the grantee to preserve the dune area. The grantor reserved the right to construct a dune walkover, so ...


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