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Tomasi v. Township of Long Beach

United States District Court, D. New Jersey

January 31, 2019

Lisa Tomasi, et al, Plaintiffs,
v.
Township of Long Beach, et al, Defendants.

          MEMORANDUM AND ORDER

          PETER G. SHERIDAN, U.S.D.J.

         This matter comes before the Court on three motions: (1) a motion to dismiss filed by Defendant Township of Long Beach, (ECF No. 86); (2) a motion for summary judgment, filed by Defendant U.S. Army Corps of Engineers (Corps), (ECF No. 87), and (3) a cross-motion for summary judgment, filed by Plaintiffs Lisa Tomasi, Lydia Zinzi, and Jean Velten, (ECF No. 91). This action arises out of Defendant Long Beach's implementation of storm damage reduction measures on Plaintiffs' properties. Although Plaintiffs contend that the Defendants unconstitutionally seized their property, the claims brought are more nuanced. That is, Plaintiffs challenge a Corps condition, as applied to this project, that requires a non-federal sponsor of shore protection projects to provide public access to shorelines every one-half mile or less. Plaintiffs contend this requirement is arbitrary and capricious because it is beyond the statutory purpose under which it was promulgated; and was not adopted as a regulation of the Corps; and because Long Beach decided to acquire an easement on Plaintiffs' property because it sought to comply with the requirement, the taking was unconstitutional. To make sense of the factual allegations and the legal issues which arise, it is necessary to understand the relevant legal background, which involves federal, state, and local governments.

         Background

          The Properties

         Plaintiffs own three adjacent lots in Long Beach Township, New Jersey, on a strip of land bordering the Atlantic Ocean, known in the planning documents as Tract 20.107. The lots are in an entirely residential unincorporated section of Long Beach known as Loveladies, which the record indicates is not a regular tourist destination and has no public restrooms or commercial facilities. Most Loveladies residences are seasonally occupied. Four public access points to the shore exist on this 1.5-mile long section of town. But they are spaced in such a way that the points to the north and south of Plaintiffs' properties are 0.68 miles apart. A preexisting private easement runs along the southwest border of the four properties "for the purpose of ingress and egress to and from Long Beach Boulevard." (See USACE 2373-2382; Second Amended Complaint, Ex. C, at 13, Ex. F).

         Figure I: Map of Loveladies. (See Plaintiffs' Brief in Opposition to Summary Judgment. ECF No. 91. at 10).

         (Image Omitted)

         Legal Backdrop

          In 1986, the United States Congress approved Section 934 of the Water Resources Development Act, Public Law No. 99-662, 100 Stat. 4082 (1986) ("the 1986 Act"), authorizing federal financial participation in periodic beach nourishment for shore protection projects. See 33 U.S.C. § 426e. Privately owned shores are eligible for federal financial assistance "if there is benefit such as that arising from public use or from the protection of nearby public property." 33 U.S.C. § 426e(d). The statute charges the Secretary of the Army with "construct[ing], or caus[ing] to be constructed, any shore protection project authorized by Congress." 33 U.S.C. 426e(e)(3)(A).

         In 1989, the Corps adopted Regulation Number 1165-2-130, entitled "Federal Participation in Shore Protection," which - implementing the 1986 Act - requires shorelines receiving federal funding to be open to the public. See Engineer Regulation 1165-2-130, Federal Participation in Shore Protection (June 15, 1989), at 6(a)(3)(d). The regulation provides, "Public use is a condition for Federal participation in hurricane, abnormal tide or lake flood protection projects." Id. at 6(h). And, it defines public use as "use by all on equal terms," meaning, in part, "public access points . .. within one-half mile of each other." Id. at 6(h)(3), appx. A(14). Absent reasonable public access, "the cost sharing must be based on private use." Id.

         Early Planning Stages

         In a September 1999 planning document - the earliest cited document relating to this project - the Corps addressed public access in Loveladies, recognizing the need to bring that neighborhood into compliance with the Corps' regulation. (See USACE[1] 4972-4973). The document noted that Loveladies had insufficient public access for federal funding; stated that the nonfederal sponsor would need to acquire permanent easements for public access to bring Loveladies into compliance; and recommended several sites for such easements, including Plaintiffs' property (Tract 20.107). In the early planning stages of the project, the need for additional public access in Loveladies was noted in multiple documents, including: a March 3, 1999 Feasibility Study Real Estate Plan prepared by the Corps (USACE 4857-4863); an email exchange spanning June 30 to July 1, 1999, which appears to be between Corps employees (USACE 4770-4771); and two letters dated August 9 and 23, 1999, prepared by the NJDEP and addressed to the Corps (USACE 4725-4726; 4717-4723). Additional documents specified Plaintiffs' property as a potential location for a public access easement: a September 1, 1999 Feasibility Study Real Estate Plan (USACE 3643); a September 1999 Final Feasibility Report and Integrated Final Environmental Impact Statement (USACE 3506); a June 15, 2000 letter from the NJDEP indicating it had reviewed same (USACE 2400); and a September 24, 1999 map of the shore (USACE 3188). According to an internal memorandum from the Corps, around this time, the sponsor had indicated "that the municipalities [would] be doing the condemnations." (USACE 4852).

         Congress then passed the Water Resources Development Act of 2000, Pub. L. No. 106-541, 114 Stat. 2572 (2000) ("the 2000 Act"), which authorized, among other things, a "project for hurricane and storm damage reduction [from] Barnegat Inlet to Little Egg Inlet, New Jersey," along with other projects across the country "in accordance with the plans, and subject to the conditions" described in the "Report of the Chief of Engineers dated July 26, 2000." Pub. L. No. 106-541 § 101(a)(1). That cited report proposed "sand dune and beach berm construction." It also required non-federal sponsors of the proposed projects - in this case the NJDEP - to "ensure continued conditions of public ownership and use of the shore upon which the amount of Federal participation is based" and to "[p]rovide and maintain necessary access roads, parking areas, and other public use facilities open and available to all on equal terms." Report of the Chief of Engineers, New Jersey Shore Protection Study, Barnegat Inlet to Little Egg Inlet (Long Beach Island), New Jersey, at ¶ 5(p), (q) (July 26, 2000). The NJDEP delegated responsibility for the condemnations to the municipalities, including Long Beach. (USACE 4852).

         In an October 10, 2003 letter, the NJDEP referenced "new" public access locations in Loveladies, located on Tracts 20.93 and 20.95 ("the alternative sites") rather than Plaintiffs' properties. (See USACE 2364-2367). On August 17, 2005, the NJDEP and the Corps entered into a-Project Cooperation Agreement, which reiterated the need for public use of the shore and public use facilities "open and available to all on equal terms." (USACE 1791).

         The record indicates the public access requirement remained an issue. A February 13, 2006 letter from the Corps to the NJDEP explained why the public access requirement could not be removed from the language of the easements to be required, citing the Corps Regulation and the federal statutes. (See US ACE 1720-1722). In 2006, due to resistance by residents of Loveladies and funding restraints, the Corps and the NJDEP reduced the scope of the project, excluding Loveladies altogether. (USACE 1714-1715). Long Beach continued to resist the Corps' public access requirement, as indicated by a December 10, 2009 email from a Corps representative to the mayor with the Corps regulation attached. (USACE 1669-1713).

         Hurricane Sandy and Recovery

         However, in October 2012, Super Storm Sandy struck the east coast, inflicting substantial devastation on New Jersey. In areas where the Corps' nourishment project had been completed, the dune and berm system successfully protected many coastal properties. (See Moore Cert., ECF No. 86-2, Ex. H, Minke Family Tr. v. Twp. of Long Beach, OCN-L-3033-14, at 3 (N.J. Sup. Ct. Law Div. Feb. 13, 2015), J, Minke Family Tr. v. Twp. of Long Beach, OCN-L-3033-14, at 2 (N.J. Sup. Ct. Law Div. Dec. 30, 2015). In areas, such as Loveladies, which had not implemented such projects, homes and properties suffered substantially increased damage. (Id.).

         On September 15, 2013, the Governor of New Jersey issued an executive order directing the NJDEP "to acquire the necessary interests in real property to undertake Flood Hazard Risk Reduction Measures." Executive Order No. 140 (Sep. 25, 2013), 45 N.J.R. 2289(a) (Oct. 21, 2013). The Corps, NJDEP, and Long Beach continued discussions about the project; the Corps - citing the 1989 regulation - continued to reiterate that it would not pay for construction unless the benefitted shoreline had adequate public access. (USACE 1255-1256).

         On October 25, 2013, Long Beach provided a proposed public access plan to the NJDEP, which identified the alternative sites, and requested that NJDEP "review and advise if it is in compliance with the Corps public access requirements." (USACE 786). Five days later, the Corps circulated a modified draft real estate plan, which stated that public access is considered insufficient where "available public access points to any particular shore are spaced approximately more than a half (1/2) mile apart." (USACE 760). It further noted that the "entire Long Beach Island Project area . . . meets the public access and parking requirements, except for a few noncontiguous small areas within Long Beach Township north and south of Harvey Cedars Borough." (USACE 760-761). However, the areas cited by the Corps as lacking sufficient public access did not include Plaintiffs' properties. (See USACE 17-28; Plaintiffs' Brief in Opposition to Summary Judgment, ECF No. 91, at 11).

         In early January 2014, a Corps representative indicated that if public access is not finalized by the end of construction, the non-federal sponsor of the project "may have to pay 100 percent of the total costs of initial construction." (USACE 521). The NJDEP responded that it would advise the Corps of the finalized public access plan once it was worked out by Long Beach. (USACE 323-334). On March 13, 2014, Long Beach provided another plan to the NJDEP again proposing public access in Loveladies at the alternative sites. (USACE 317-322). The Corps contemplated revising the plan because the project still did not meet all public access requirements. (USACE 310).

         On July 10, 2014, the NJDEP entered into an agreement with the Corps for "the placement of suitable beach fill to form a storm protection berm and a dune with planted dune grasses and sand fencing along the coastlines of a number of municipalities." (Second Amended Complaint, ECF No. 15, at ¶ 40; Certification of Christina M. Sartorio, Ex. A, Deposition of Mayor Joseph H. Mancini, at 87:10 to 88:6). In August 2014, Long Beach revised its public access maps and moved the proposed public access to Plaintiffs' properties, which did not affect the plan's compliance with public access requirements. Long Beach notified Plaintiffs of this revision in an August 15, 2014 letter. (Second Amended Complaint, Ex C). On September 26, 2014, Long Beach adopted Ordinance 14-32, which authorized the acquisition of a public easement across Plaintiffs' property for public access from the road to the beach. (Second Amended Complaint, ¶ 75).

         Procedural History

         On November 25, 2014, Plaintiffs initiated this action in the District Court against Long Beach and the Corps and filed an amended complaint on February 3, 2015. About two months later, the Court dismissed the Amended Complaint because it was unclear whether Plaintiffs sought "to enjoin the implementation of the Real Estate Plan; or alternatively, to declare the Corps' engineering guidance regulations invalid" and the Corps was "not given fair notice of the substance of the Complaint in order to defend itself against same." (March 27, 2015 Order, ECF No. 14, at 1).

         On April 27, 2015, Plaintiffs filed a second amended complaint. (Second Amended Complaint, ECF No. 15). On November 23, 2016, Plaintiffs filed a motion for a preliminary injunction seeking to enjoin the state condemnation action until the federal action was resolved. (ECF No. 62). This Court issued an order dated December 19, 2016, denying Plaintiffs' motion for a preliminary injunction. (ECF No. 68).

         Before the injunction was resolved, Long Beach filed three condemnation actions against the Plaintiffs and filed a declaration of taking against their properties in the New Jersey Superior Court. Plaintiffs asserted a defense claiming the Corps' half-mile public access requirement was "never subject to the processes and procedures required by the Administrative Procedures Act [(APA)], such as a notice and comment period, and is ultra vires and unenforceable." (Harold Decl., Exs. N, at 7). On September 29, 2017, the Superior Court judge appointed commissioners to appraise the properties. Plaintiffs (who are defendants in the state-court action) appealed to the New Jersey Appellate Division. On October 20, 2017, the New Jersey Supreme Court granted a motion filed by Plaintiffs to stay the underlying condemnation action pending the disposition of the appeal. On December 20, 2018, the Appellate Division affirmed, holding that Long Beach's actions were within its authority under state law. The stay was ...


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