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Borough of Avalon v. New Jersey Department of Environmental Protection

403 N.J. Super. 590, 959 A.2d 1215 (App. Div. 2008)

WATERWAYS; PUBLIC TRUST; PUBLIC ACCESS — Although a municipality holds public property in trust for the public, there is no requirement that such property be made available for public use at all times and the New Jersey Department of Environmental Protection’s statutory authority to enforce public access rules cannot preempt the right of a municipality to decide when those areas should be open to the public.

The New Jersey Department of Environmental Protection (DEP) adopted a public access rule which substantially expanded its authority over beaches and other tidal waterways by requiring any municipality located on a tidal waterway to allow public access to the waterways and shores at all times unless the municipality proved unique or there were exigent circumstances to close the area during late night hours. Another rule required a municipality seeking a specific appropriation from the DEP to agree to provide additional parking spaces and restroom facilities near the waterfront in accordance with DEP directives.

A municipality sued the DEP to challenge the validity of those rules. The Appellate Division adjudicated the matter, holding that the public access rule was an invalid preemption of the basic municipal power to manage and control municipally-owned beaches, include the right of a municipality to decide when those areas should be open to the public. The Court noted that a municipality’s police powers cannot be preempted absent a clear legislative intention. Here, the Court found the public access rule’s source statute, the Coastal Areas Facility Review Act (CAFRA), did not preempt municipal regulation under the Municipal Land Use Law (MLUL). The Court pointed out that, in the exercise of its statutory authority, a municipality may close public parks and other public facilities during late night hours or at other times when the use of such facilities might pose a threat to public safety and order. It also ruled although a municipality holds public property in trust for the public, there is no requirement that such property be made available for public use at all times.

The Court likewise invalidated the rule requiring a municipality to provide parking spaces and restrooms in order to benefit from a specific DEP appropriation. It held that CAFRA does not expressly delegate such authority to DEP, and that the public trust doctrine, which states that a municipality must provide non-residents with the same access to its beaches as it does its own residents, did not extend to requiring a specified number of parking spaces and restrooms close to a beach. The Court also concluded that this regulation was vague, and therefore invalid, because DEP acknowledged there was no formula to determine how the parking requirement would be calculated and the DEP said only that the determination would be made on a case by case basis.


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