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National Association of Home Builders of the United States v. NJDEP

64 F. Supp.2d 354 (D. N.J. 1999)

PUBLIC TRUST PROPERTY; ACCESS—A property owner is not entitled to an individualized determination that access over its privately owned land is reasonably necessary to achieve access to adjacent public trust property.

Two trade associations, on behalf of themselves and individuals who owned property in the Hudson River Waterfront Area, challenged a rule that regulated development along the river. Specifically, they alleged the particular rule was unconstitutional because it required all owners along the river desiring a water development permit to, “(1) construct and maintain, at the owner’s expense, a thirty-foot wide walkway along the entire waterfront of the property, to be built to standards specified in NJDEP regulations (hereinafter ‘Walkway’); (2) convey to NJDEP a conservation easement for the Waterway; and (3) allow perpendicular public access to the Walkway without compensation.” At the onset, it appeared to the Court that the property in question could be placed into two or three categories. First, 88.7% of the property along the shoreline was made up of artificially filled land that was once submerged and 96% of this land was subject to State tidelands grants. The Court referred to this category as “public trust property” because the land was submerged beneath the river until such time as it was filled in artificially. The balance of the land, called “non-public trust property,” because this property was not submerged beneath the river, was placed in two separate categories. One category consisted of those portions of land that contained perpendicular access paths leading to the public trust property. The second portion consisted of land on which small pieces of the walkway were located. There was no question that title to the “public trust property,” even though owned by the association members, was subject to the public’s right to use and enjoy the property. Consequently, with respect to the 88.7% of the property at issue that was once submerged beneath the river, “the public already owns rights in the land that the Walkway is built on.” As a result, the property owners were found not to have a right to exclude public access to that portion of the property and requiring that a walkway be built and maintained on that portion of the property did not constitute an unconstitutional taking.

This left the question as to “whether the state acted rationally in determining that access across the perpendicular paths and scattered small portions of the Walkway constructed on uplands [was] ‛reasonably necessary’ to protect that public’s right of access to the remaining 88.7% of the Walkway that is situated on tidelands.” The Court found that the property owner’s claims with respect to the small portion of the property were governed by the reasonableness test enunciated in Matthews v. Bay Head Improvement Ass’n., 95 N.J. 306 (1984). “Precisely what is reasonably necessary depends upon an examination of what privately-owned land would be available and required to satisfy the public’s rights under the public trust doctrine and includes the following factors: 1) location of a dry sand area in relation to the foreshore; 2) extent and availability of publically-owned upland sand area; 3) nature and extent of the public demand; and 4) usage of the upland sand area by the owner.” With respect to the reasonableness test, the State argued that the “plaintiff offered no credible basis to challenge the ... [State’s contention] that ... the Walkway that crosses over small areas of upland property – are ‘reasonably necessary’ to protect the public’s right to access the tidelands.” The associations, however, countered that case law does not permit the government to enforce this particular rule without an individualized determination that its requirements to construct a walkway are roughly proportional to the potential impact of the development of waterfront property. The Court rejected the association’s contentions, holding that “the reasonableness factors to be considered under the Mathews test are very clear and do not include ‘individualized determinations,’ as are contemplated [under prior case law] .” Having said all that, the Court then held that there was an insufficient record to determine whether the Matthews reasonableness test had been satisfied. Therefore, it granted judgment in favor of the State with respect to the “public trust” portion of the property at issue and denied summary judgment to all parties with respect to the other land.


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