On appeal from Superior Court of New Jersey, Chancery Division, Cape May County, Docket No. C-103-07.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 16, 2008
Before Judges Skillman, Graves and Grall.
In 2007, the Department of Environmental Protection adopted rules, referred to as the Public Access Rules, which substantially expanded its authority over public access to beaches and other tidal waterways. 39 N.J.R. 5222(a).*fn1 One new rule requires any municipality located on a tidal waterway to allow public access to tidal waterways and their shores "at all times," unless the municipality obtains the DEP's permission to close the area during "late night hours" based on "unique circumstances" that threaten "public safety" or during other times for reasons such as "exigent circumstances." N.J.A.C. 7:7E-8.11(f). Other new rules require any municipality that seeks an appropriation from the "Shore Protection Fund" to enter into a "State Aid Agreement" with the DEP that, among other things, obligates the municipality to provide additional parking spaces and restroom facilities in proximity to the oceanfront as specified by the Public Access Rules and DEP directives.
N.J.A.C. 7:7E-8.11(p)(7)(v); N.J.A.C. 7:7E-8A.2(c)(2)(i). The rules also require the municipality, if necessary, to acquire land, including by exercise of the power of eminent domain, in order to provide such additional parking spaces and restroom facilities. N.J.A.C. 7:7E-8.11(p)(7)(i)(l).
The Borough of Avalon, a municipality in Cape May County with approximately four miles of oceanfront that seeks to obtain an appropriation from the Shore Protection Fund, challenged the validity of these rules by a complaint in the Chancery Division, which was transferred to this court. We granted Avalon's motion to accelerate the appeal. The Borough of Stone Harbor and Cape May County have filed amici curiae briefs in support of Avalon's challenge to the rules, and the American Littoral Society has filed an amicus curiae brief in support of the rules.
Avalon alleged in its Chancery Division complaint, and the DEP does not deny, that its entire four miles of oceanfront is open to the public without any restrictions except for a requirement of payment of a reasonable beach fee. Avalon also alleged that it has sixty-two public streets that front on the beach, the majority of which provide open public beach access (the exception being thirteen streets that front on an environmentally sensitive "high dunes" area). Avalon further alleged that it currently has 5,700 on-street public parking spaces and 550 off-street public parking spaces, 370 of which are within one-quarter mile of the beach. There are no restrictions upon the use of any of these parking spaces. In addition, Avalon alleged that it maintains public restrooms at fifteen different locations. However, those restrooms are not located every half-mile along the oceanfront, as required by one of the challenged rules. Consequently, Avalon alleged that it would have to install portable restrooms at certain locations that do not currently have restrooms in order to comply with this requirement.
Avalon argues that the rules that require municipalities to provide unfettered public access to beaches and other tidal waterways at all times, except when the DEP grants the municipality permission for closure, and that require any municipality that seeks an appropriation from the Shore Protection Fund to agree to provide such additional parking spaces and restrooms as may be required under the DEP rules and directives, are not statutorily authorized and infringe upon the statutory powers of municipal government.*fn2 We agree that the challenged Public Access Rules are not statutorily authorized and therefore invalidate them.
The Public Access Rule that requires municipalities to allow public access to tidal waterways and their shores at all times unless the municipality obtains the DEP's permission to close those areas states in pertinent part:
(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.
(f) The permanent on-site public access . . . 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.
1. Public access to tidal waterways and their shores shall be available at all times. However, the [DEP] 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. . . .
2. The [DEP] 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, . . . 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 . . . . [N.J.A.C. 7:7E-8.11(emphasis added).]
The applicability of this rule is not dependent upon a municipality applying for an appropriation from the Shore Protection Fund. Thus, the rule applies to every ...