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Weinstein v. Township of Long Beach

A-3242-01T2 and A-3422-01T2 (N.J. Super. App. Div. 2004) (Unpublished)

DOCKS; PREEMPTION—Selected sections of a municipality’s docks and wharves ordinance can be preempted by state statute.

Property owners applied to a municipality’s Docks and Wharves Committee for permission to build a dock. The property owners had already received a permit to build a dock from the Army Corps of Engineers and from the Department of Environmental Protection. Despite those approvals, the Committee refused to issue a permit. The property owners sued, asserting that the Committee had no right to deny the permit because the municipal ordinance regulating docks upon which the Committee was relying was preempted by the Appellate Division’s ruling in Tumino v. Township of Long Branch, 319 N.J. Super. 514 (App. Div. 1999). The property owners also sought to invalidate the municipal ordinance that created the Docks and Wharves Committee and that authorized the Committee to regulate docks. The lower court ruled that the municipal ordinance was preempted by state statute and regulation based on Tumino, where the Court held that the municipal ordinance regulating docks and wharves was preempted by state statute and regulation. It then ordered issuance of a dock permit. The lower court abstained from invalidating the municipal ordinance and denied the property owners’ request for attorneys’ fees. The municipality appealed.

The Appellate Division affirmed the lower court’s ruling regarding preemption of the field and remanded the case for a hearing regarding the validity of the municipality’s dock construction ordinance. In doing so, it rejected the municipality’s arguments that the lower court erred by: (1) failing to establish intent on the part of the Legislature to preempt the field; (2) not citing to any statutes to support its finding of preemption; and (3) ignoring the municipality’s right to consider public health, safety, and welfare concerns regarding dock applications. The Court upheld the lower court’s ruling that the municipal ordinance was preempted by state statute. It ruled that certain sections of the ordinance were previously found to have been preempted by the court in Tumino and remanded the case for a hearing regarding the validity of the municipal ordinance as a whole.

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