United States District Court, D. New Jersey
MEMORANDUM AND ORDER
G. SHERIDAN, U.S.D.J.
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
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.
I: Map of Loveladies. (See Plaintiffs'
Brief in Opposition to Summary Judgment. ECF No. 91. at 10).
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).
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."
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 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).
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).
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).
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).
Sandy and Recovery
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.).
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.
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).
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).
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).
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).
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).
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