STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION, Plaintiff-Respondent,
NORTH BEACH 1003, LLC, a New Jersey limited liability company, Defendant-Appellant and STATE OF NEW JERSEY, DEPARTMENT OF THE TREASURY, DIVISION OF TAXATION, Defendant. STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION, Plaintiff-Respondent,
SHANIN SPECTER and TRACEY SPECTER, Defendants-Appellants, and GE CAPITAL MORTGAGE SERVICES, INC., a New Jersey corporation or its successor, Defendant-Respondent. STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION, Plaintiff-Respondent,
THOMAS R. KLINE, Defendant-Appellant. STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION, Plaintiff-Respondent,
ROBERT S. HEKEMIAN, Defendant-Appellant, and MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., a Delaware foreign profit corporation, or its successor, as nominee for TD BANK, N.A., Defendant-Respondent. STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION, Plaintiff-Respondent,
RICHARD CAROLAN and TINA CAROLAN, Defendants-Appellants. STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION, Plaintiff-Respondent,
JEANETTE F. FRANKENBERG and LOUIS CAMPISANO, Defendants-Appellants, and THE PROVIDENT BANK, a New Jersey domestic limited liability company, or its successor, Defendant-Respondent. STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION, Plaintiff-Respondent,
BEVERLY T. CAMMARANO QUALIFIED PERSONAL RESIDENCE TRUST, BEVERLY T. CAMMARANO and ROBERT J. CAMMARANO as co-trustees, Defendants-Appellants, and BANK of AMERICA, N.A., Defendant. STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION, Plaintiff-Respondent,
BARBARA J. WELDON, Defendant-Appellant. STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION, Plaintiff-Respondent,
COLLEEN M. ROWE and KELLY A. ROWE, Defendants-Appellants. OF ENVIRONMENTAL PROTECTION, Plaintiff-Respondent,
KEVIN KLINGERT and KRISLYN KLINGERT, Defendants-Appellants. STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION, Plaintiff-Respondent,
PATRICIA ROBERTS TRUST, PATRICIA ROBERTS as trustee, and SCOTT GUSMER, Defendants-Appellants. STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION, Plaintiff-Respondent,
DAVID CASTELBLANCO and LAURA ENGELHARDT, Defendants-Appellants, and FIRST REPUBLIC BANK, Defendant-Respondent. STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION, Plaintiff-Respondent,
RICHARD MALOUF and MARILYN MALOUF, Defendants-Appellants. STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION, Plaintiff-Respondent,
FREDERICK SMITH, SANDRA S. HOLDER-BROWN as trustee for SANDRA S. HOLDER-BROWN TRUST, and DEBORAH A. SMITH, Defendants-Appellants, and SANTANDER BANK, N.A., Defendant-Respondent. STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION, Plaintiff-Respondent,
MICHAEL VAN KRALINGEN and SANDRA MILLER as trustees of the VAN KRALINGEN RESIDENCE TRUST II, Defendants-Appellants, and 0.238-Acres of Land in The Borough of Point Pleasant Beach, Ocean County, New Jersey and INVESTORS SAVINGS BANK, Defendants-Respondents. STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION, Plaintiff-Respondent,
DENNIS LA PLANTE and CATHERINE LA PLANTE, Defendants-Appellants, and 0.232-Acres of Land in The Borough of Point Pleasant Beach, M&T BANK CORPORATION, as successor to HUDSON CITY SAVINGS BANK, and U.S. SMALL BUSINESS ADMINISTRATION, Defendants-Respondents. STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION, Plaintiff-Respondent,
COURTNEY M. ALESSO and JOHN A. ALEXY, co-trustees of the COURTNEY M. ALESSO 2012 TRUST, Defendants-Appellants, and 0.259-Acres of Land In The Borough of Point Pleasant Beach, Ocean County, New Jersey, Defendant-Respondent. STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION, Plaintiff-Respondent,
MINALKUMAR A. PATEL LIVING TRUST, MINALKUMAR A. PATEL and ASRA WARSI as trustees, and ASRA WARSI LIVING TRUST, MINALKUMAR A. PATEL and ASRA WARSI as trustees, Defendants-Appellants. STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION, Plaintiff-Respondent,
NEIL KAHANOVITZ and SUZANNE KAHANOVITZ, Defendants-Appellants, and MANASQUAN SAVINGS BANK, Defendant-Respondent. STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION, Plaintiff-Respondent,
JILL P. GILES REVOCABLE TRUST, JILL P. GILES, as trustee, Defendants-Appellants, and MANASQUAN SAVINGS BANK, Defendant-Respondent. NINA RITTER, SHARON CRUZ, LAWRENCE E. BATHGATE, II, AUSTIN FRAGOMEN and GWENDOLYN FRAGOMEN, SMATCO, LP, ANN F. MESTRES, LOWELL MILLAR and JENNIFER MILLAR, Plaintiffs-Appellants,
STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION, Defendant-Respondent. STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION, Plaintiff-Respondent,
RAYMOND BRAUN and JAYNE K. BRAUN, Defendants-Appellants, and NEW YORK COMMUNITY BANCORP, Defendant-Respondent. STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION, Plaintiff-Respondent,
THOMAS BUCKLEY and KAREN BUCKLEY, Defendants-Appellants, and TD BANK NORTH, INC., d/b/a TD BANK, N.A., Defendant-Respondent. STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION, Plaintiff-Respondent,
GERARD LOSURDO and NINA LOSURDO, Defendants-Appellants, and U.S. BANK, N.A., Defendant-Respondent.
May 2, 2017
appeal from the Superior Court of New Jersey, Law Division,
Ocean County, Docket Nos. L-3067-15, L-3071-15, L-3077-15,
L-3066-15, L-3069-15, L-2919-15, L-3289-15, L-3286-15,
L-3420-15, L-3410-15, L-3319-15, L-3287-15, L-3285-15,
L-3438-15, L-0442-16, L-0444-16; L-0443-16, L-3206-15,
L-3205-15, L-3288-15, L-2949-15, L-3204-15, L-3292-15, and
A. Heiart argued the cause for appellants North Beach 1003,
L.L.C., Shanin Specter and Tracey Specter, Thomas R. Kline,
Robert S. Hekemian, and Richard Carolan and Tina Carolan
(Carlin & Ward, P.C., attorneys; Mr. Heiart, on the
S. Winter argued the cause for appellants Jeanette F.
Frankenberg and Louis Campisano (Stern Lavinthal Frankenberg
& Norgaard, L.L.C., attorneys; Mr. Winter, on the
H. Buonocore, Jr. and Anthony F. DellaPelle argued the cause
for appellants Beverly T. Cammarano Qualified Personal
Residence Trust, Beverly T. Cammarano and Robert J. Cammarano
as co-trustees, Barbara J. Weldon, Colleen M. Rowe and Kelly
A. Rowe, Kevin Klingert and Krislyn Klingert, Patricia
Roberts Trust, Patricia Roberts as trustee, and Scott Gusmer,
David Castelblanco and Laura Engelhardt, Richard Malouf and
Marilyn Malouf, Frederick Smith, Sandra S. Holder-Brown as
trustee for Sandra S. Holder-Brown Trust and Deborah A.
Smith, Michael Van Kralingen and Sandra Miller as trustees of
the Van Kralingen Residence Trust II, Dennis La Plante and
Catherine La Plante, Courtney M. Alesso and John A. Alexy,
co-trustees of the Courtney M. Alesso 2012 Trust, Minalkumar
A. Patel Living Trust, Minalkumar A. Patel and Asra Warsi as
trustees, Asra Warsi Living Trust, Minalkumar A. Patel and
Asra Warsi as trustees, Neil Kahanovitz and Suzanne
Kahanovitz, Jill P. Giles Revocable Trust, Jill P. Giles as
trustee, Nina Ritter, Sharon Cruz, Lawrence E. Bathgate, II,
Austin Fragomen and Gwendolyn Fragomen, SMATCO, L.P., Ann F.
Mestres, Lowell Millar and Jennifer Millar, Raymond Braun and
Jayne K. Braun, Thomas Buckley and Karen Buckley, and Gerard
Losurdo and Nina Losurdo (McKirdy & Riskin, P.A.,
attorneys; Mr. Buonocore and Mr. DellaPelle, on the briefs).
C. Apy, Assistant Attorney General, and Ronald L. Perl,
argued the cause for respondent Department of Environmental
Protection (Christopher S. Porrino, Attorney General, and
Hill Wallack, L.L.P., attorneys; Melissa H. Raksa, Assistant
Attorney General, of counsel; David S. Frankel, Kristina L.
Miles, Bruce A. Velzy, Deputy Attorneys General, and Dale
Laster Lessne, on the brief).
Judges Yannotti, Fasciale, and Gilson.
consolidated appeals present the questions whether the New
Jersey Department of Environmental Protection (DEP) has the
authority to condemn private property to take perpetual
easements for shore protection purposes and whether the
easements can allow public access to, and use of, the areas
covered by the easements. We hold that the DEP has such
authority and the easements that allow for publicly funded
beach protection projects can include public access and use.
Thus, we affirm the trial court's final judgments finding
that the DEP properly exercised its power of eminent domain
and appointing commissioners to determine the value of the
takings. We also affirm the trial court's orders denying
defendants' motion to dismiss the DEP's complaints
and granting summary judgment to the DEP on the declaratory
judgment action brought by certain appellants.
the New Jersey public trust doctrine, the State holds
ownership over all shore-lined lands that are flowed by the
tide up to the mean high water mark. City of Long Branch
v. Jui Yung Liu, 203 N.J. 464, 475 (2010) (citing
O'Neill v. State Highway Dep't, 50 N.J. 307,
323 (1967)). Accordingly, New Jersey has historically
managed, protected, and developed its shoreline.
the past several decades, the federal government has assisted
New Jersey in protecting coastal communities from the impacts
of storms and beach erosion. In 1986, Congress enacted the
Water Resources Development Act (WRDA), 33 U.S.C.A. §
2211 to § 2227. Under the WRDA, the federal government
will pay between fifty to sixty-five percent of the costs of
such projects and the State will be responsible for the
remaining balance. 33 U.S.C.A. § 2213.
aftermath of Superstorm Sandy, Congress passed the Disaster
Relief Appropriations Act of 2013 (Sandy Act), Pub. L.
No. 113-2, 127 Stat. 4. The Sandy Act
authorizes the Army Corps of Engineers (Army Corps) to
construct beach replenishment and dune construction projects
to protect the New Jersey shoreline. The Sandy Act also
provides that the federal government will fund one hundred
percent of the costs for the completion of some of the
projects. The State's contribution for those projects can
be deferred and financed over a period of thirty years.
September 2013, Governor Chris Christie issued Executive
Order No. 140. That order established the Office of Flood
Hazard Risk Reduction Measures within the DEP and gave it
responsibility "for the rapid acquisition of property
vital to [Sandy] reconstruction efforts[.]"
facilitate the projects authorized by the Sandy Act, the Army
Corps partnered with the DEP. The DEP was responsible for
gaining physical access to the property along the New Jersey
shoreline needed to construct and maintain the projects. Two
projects are at issue on these appeals. The Long Beach Island
Project (the LBI Project) and the Manasquan Inlet to Barnegat
Inlet Storm Damage Reduction Project (the Manasquan
Project).Those Projects consist of a dune and berm
system extending the entire eighteen-mile length of Long
Beach Island and fourteen miles along northern Ocean County
from Berkeley Township to Point Pleasant Beach.
its agreements with the Army Corps, the DEP must obtain all
necessary property interests before the Army Corps will begin
to construct the Projects. In that regard, the project
partnership agreements between the DEP and the Army Corps
provide that the DEP is to acquire all "real property
interests . . . required for construction, operation, and
maintenance of the Project[s], " including the
"lands, easements and right-of-way required for the
Superstorm Sandy, the State, working with various
municipalities, undertook efforts to secure voluntary
conveyances of the property interests needed for the
Projects. While many property owners voluntarily granted
easements, other property owners declined to give voluntary
easements. Thus, the DEP initiated actions to acquire the
remaining easements through eminent domain proceedings.
appellants in these consolidated appeals own twenty-three
properties on Long Beach Island or in northern Ocean County.
They refused to provide voluntary easements to the DEP. The
DEP filed condemnation complaints against the owners of those
twenty-three properties. Those property owners are referred
to as the North Beach 1003 defendants, the Frankenberg
defendants, and the Cammarano defendants. The owners of seven
other properties brought a declaratory judgment action
against the DEP. They are referred to as the Ritter
filing eminent domain actions, the DEP had an appraiser,
Richard Hall, appraise the properties owned by the North
Beach 1003, Frankenberg, and Cammarano defendants. Hall first
wrote to each property owner, informing them that he would be
conducting an appraisal and inviting them to provide him with
relevant information and to attend his inspection. Only a few
defendants responded to Hall and attended his inspection. As
a consequence, Hall was not given access to the homes of most
defendants, including the home owned by the Frankenberg
the appraisals were completed, the DEP sent those appraisals
to defendants and offered to purchase easements for between
several hundred dollars and several thousand dollars.
Attorneys for defendants then informed the DEP that they
would like to negotiate those offers. The DEP responded that
defendants would need to obtain their own informal appraisals
to commence meaningful negotiations. Defendants requested
time to obtain such appraisals. Defendants also requested the
DEP answer certain questions concerning Hall's appraisals
and his methodology. In addition, the Frankenberg defendants
requested a reappraisal since Hall had not inspected the
interior of their home. The Frankenberg defendants also
provided the DEP with photographs of the views from the
interior of their home and allowed representatives of the DEP
and the Army Corps to inspect their home.
the DEP set a deadline for receiving defendants'
appraisals. When the deadline passed without receipt of
appraisals from defendants, the DEP commenced condemnation
actions in late 2015 and early 2016.
condemnation complaints against the North Beach 1003,
Frankenberg, and Cammarano defendants, the DEP sought
perpetual easements under N.J.S.A. 12:3-64. The proposed
easements would allow for the "construction, periodic
nourishment, and continued maintenance of the Project[s']
dunes and berms system." The easements also provided the
right for the public to access and use the areas covered by
responded with answers and motions to dismiss the complaints,
contending that the DEP lacked statutory authority to take
easements. Defendants also contended that the DEP did not
have the authority to take perpetual easements, which
provided for a public beach. Additionally, defendants
asserted that the DEP had failed to engage in bona fide
negotiations as required by the Eminent Domain Act (EDA),
N.J.S.A. 20:3-1 to -50.
March 4, 2016, the trial court heard oral argument in the
matters involving the North Beach 1003, Frankenberg, and
Cammarano defendants. Thereafter, on March 28, 2016, the
trial court issued a written opinion explaining that it would
grant the DEP's orders to show cause and deny
defendants' motions to dismiss. The court held that the
DEP was statutorily authorized to take private property for
"public beach purposes and for shore protection
purposes." Specifically, the trial court held that both
N.J.S.A. 12:3-64 and the EDA permitted the DEP to take a
property interest less than a fee simple, such as perpetual
easements. The court also held that, because federal funding
was conditioned on public access and use, the DEP had the
discretion to include public access and use as part of the
easements. Finally, the court found that the DEP had complied
with all pre-litigation steps required by the EDA, including
engaging in bona fide negotiations with the property owners.
See N.J.S.A. 20:3-6.
held that the DEP properly exercised its power of eminent
domain, on April 5, 2016, the trial court entered orders for
final judgments in favor of the DEP and appointed
commissioners to determine the value of the
in 2015, the Ritter appellants filed a declaratory judgment
action seeking a ruling that the DEP could not rely on
N.J.S.A. 12:3-64 to acquire easements on their properties.
The Ritter appellants moved for summary judgment and the DEP
cross-moved for summary judgment, arguing that the Ritter
appellants' action was premature since the DEP had not
yet commenced condemnation proceedings against their
properties. The trial court granted summary judgment to the
DEP in an order entered on April 8, 2016. The court relied on
its March 28, 2016 opinion, holding that the DEP had
authority to condemn private property. The court also found
that the Ritter appellants were seeking an advisory opinion
because the DEP had not yet filed condemnation actions
against those property owners.
North Beach 1003, Frankenberg, and Cammarano defendants now
appeal the orders of final judgments entered in their
actions. The Ritter appellants appeal the April 8, 2016 order
granting summary judgment to the DEP and dismissing their
declaratory judgment action. All the appeals were
consolidated because they present similar issues. One
property owner who was initially part of these consolidated
appeals has resolved the dispute with the DEP while these
appeals were pending. We denied appellants' request for
stays of the Projects pending these appeals, but we
accelerated the consolidated appeals.
challenging the orders and judgments entered by the trial
court, appellants present eight arguments, six of which
relate to all appellants, and two of which are specific to
the North Beach 1003 and Frankenberg defendants.
Specifically, appellants argue that the trial court erred by
(1) holding that the DEP had statutory authority to acquire
easements; (2) interpreting N.J.S.A. 12:3-64 to allow for the
taking of easements; (3) interpreting N.J.S.A. 12:3-64 to
allow for the protection of public beaches; (4) interpreting
our decision in State v. Archer, 107 N.J.Super. 77
(App. Div. 1969); (5) determining that the EDA authorized the
DEP to take easements; (6) allowing the DEP to take perpetual
easements; (7) finding that the DEP conducted bona fide
negotiations with the North Beach 1003 defendants; and (8)
finding that the DEP acted in good faith in dealing with the
first address the DEP's statutory authority to condemn
property and thereby address appellants' first, second,
fourth, and fifth arguments. Next, we examine whether the DEP
can take a perpetual easement that allows for public access,
which will address appellants' third and sixth arguments.
Finally, we will address the last two arguments raised by the
North Beach 1003 and Frankenberg defendants concerning the
bona fide negotiations by the DEP and the agency's
compliance with the pre-litigation procedures in the EDA.
we identify our standard of review. We use a plenary standard
to review questions of law. Manalapan Realty, L.P. v.
Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Thus,
we review de novo the question whether the DEP has statutory
authority to condemn private property and take perpetual
easements allowing for public access and use. We defer to the
trial court's factual findings regarding the negotiations
conducted by the DEP. Tractenberg v. Township of West
Orange, 416 N.J.Super. 354, 365 (App. Div. 2010)
(quoting Rova Farms Resort, Inc. v. Inv'rs Ins. Co.
of Am., 65 N.J. 474, 484 (1974)). Accordingly, we will
reverse such factual findings only if "they are so
manifestly unsupported by or inconsistent with the competent,
relevant and reasonably credible evidence." Rova
Farms, supra, 65 N.J. at 484. To the extent
that established facts are applied to legal questions,
however, we owe no special deference to the trial court.
Manalapan, supra, 140 N.J. at 378.
DEP's Authority to Condemn Private Property and Take an
power of eminent domain, under which the State may take
private property for a public purpose, "is an inherent
and a necessary right of the sovereignty of the state."
Valentine v. Lamont, 13 N.J. 569, 575 (1953),
cert, denied, 347 U.S. 966, 74 S.Ct. 776, 98 L.Ed.
1108 (1954). That power rests with the Legislature. State
by Comm'r of Transp. v. Township of South
Hackensack, 111 N.J.Super. 534, 543 (App. Div. 1970),
certif. denied, 57 N.J. 433 (1971). Our State
Constitution provides that when the State takes private
property for a public purpose, it must pay "just
compensation." N.J. Const, art. I, ¶ 20.
Constitution also allows the Legislature to delegate the
power of eminent domain to state agencies or political
Any agency or political subdivision of the State . . ., which
may be empowered to take or otherwise acquire private
property for any public . . . use, may be authorized by law
to take or otherwise acquire a fee simple absolute or any
lesser interest, and may be authorized by law to take or
otherwise acquire a fee simple absolute in, easement upon, or
the benefit of restrictions upon, abutting property ...