State v. N. Beach 1003, LLC

Decision Date22 June 2017
Parties STATE of New Jersey, Department of Environmental Protection, Plaintiff–Respondent, v. NORTH BEACH 1003, LLC, a New Jersey limited liability company, Defendant–Appellant, and State of New Jersey, Department of the Treasury, Division of Taxation, Defendant. State of New Jersey, Department of Environmental Protection, Plaintiff–Respondent, v. Shanin Specter and Tracey Specter, Defendants–Appellants, and GE Capital Mortgage Services, Inc., a New Jersey corporation or its successor, Defendant–Respondent. State of New Jersey, Department of Environmental Protection, Plaintiff–Respondent, v. Thomas R. Kline, Defendant–Appellant. State of New Jersey, Department of Environmental Protection, Plaintiff–Respondent, v. Robert S. Hekemian, Defendant–Appellant, and Mortgage Electronic Registration Systems, Inc., a Delaware foreign profit corporation, or its successor, as nominee for TD Bank, N.A., Defendant–Respondent. State of New Jersey, Department of Environmental Protection, Plaintiff–Respondent, v. Richard Carolan and Tina Carolan, Defendants–Appellants. State of New Jersey, Department of Environmental Protection, Plaintiff–Respondent, v. Jeanette F. Frankenberg and Louis Campisano, Defendants–Appellants, and The Provident Bank, a New Jersey domestic limited liability company, or its successor, Defendant–Respondent. State of New Jersey, Department of Environmental Protection, Plaintiff–Respondent, v. Beverly T. Cammarano Qualified Personal Residence Trust, Beverly T. Cammarano and Robert J. Cammarano as co-trustees, Defendants–Appellants, and Bank of America, N.A., Defendant. State of New Jersey, Department of Environmental Protection, Plaintiff–Respondent, v. Barbara J. Weldon, Defendant–Appellant. State of New Jersey, Department of Environmental Protection, Plaintiff–Respondent, v. Colleen M. Rowe and Kelly A. Rowe, Defendants–Appellants. State of New Jersey, Department of Environmental Protection, Plaintiff–Respondent, v. Kevin Klingert and Krislyn Klingert, Defendants–Appellants. State of New Jersey, Department of Environmental Protection, Plaintiff–Respondent, v. Patricia Roberts Trust, Patricia Roberts as trustee, and Scott Gusmer, Defendants–Appellants. State of New Jersey, Department of Environmental Protection, Plaintiff–Respondent, v. David Castelblanco and Laura Engelhardt, Defendants–Appellants, and First Republic Bank, Defendant–Respondent. State of New Jersey, Department of Environmental Protection, Plaintiff–Respondent, v. Richard Malouf and Marilyn Malouf, Defendants–Appellants. State of New Jersey, Department of Environmental Protection, Plaintiff–Respondent, v. Frederick Smith, Sandra S. Holder–Brown as trustee for Sandra S. Holder–Brown Trust, and DEBORAH A. SMITH, Defendants–Appellants, and Santander Bank, N.A., Defendant–Respondent. State of New Jersey, Department of Environmental Protection, Plaintiff–Respondent, v. Michael Van Kralingen and Sandra Miller as trustees of the Van Kralingen Residence Trust II, Defendants–Appellants, and 0.238–Acres of Land in The Borough of Point Pleasant Beach, Ocean County, New Jersey and Investors Savings Bank, Defendants–Respondents. State of New Jersey, Department of Environmental Protection, Plaintiff–Respondent, v. Dennis La Plante and Catherine La Plante, Defendants–Appellants, and 0.232–Acres of Land in The Borough of Point Pleasant Beach, M & T Bank Corporation, as successor to Hudson City Savings Bank, and U.S. Small Business Administration, Defendants–Respondents. State of New Jersey, Department of Environmental Protection, Plaintiff–Respondent, v. Courtney M. Alesso and John A. Alexy, co-trustees of the Courtney M. Alesso 2012 Trust, Defendants–Appellants, and 0.259–Acres of Land In The Borough of Point Pleasant Beach, Ocean County, New Jersey, Defendant–Respondent. State of New Jersey, Department of Environmental Protection, Plaintiff–Respondent, v. Minalkumar A. Patel Living Trust, Minalkumar A. Patel and Asra Warsi as trustees, and Asra Warsi Living Trust, Minalkumar A. Patel and Asra Warsi as trustees, Defendants–Appellants. State of New Jersey, Department of Environmental Protection, Plaintiff–Respondent, v. Neil Kahanovitz and Suzanne Kahanovitz, Defendants–Appellants, and Manasquan Savings Bank, Defendant–Respondent. State of New Jersey, Department of Environmental Protection, Plaintiff–Respondent, v. Jill P. Giles Revocable Trust, Jill P. Giles, as trustee, Defendants–Appellants, and Manasquan Savings Bank, Defendant–Respondent. Nina Ritter, Sharon Cruz, Lawrence E. Bathgate, II, Austin Fragomen and Gwendolyn Fragomen, SMATCO, LP, Ann F. Mestres, Lowell Millar and Jennifer Millar, Plaintiffs–Appellants, v. State of New Jersey, Department of Environmental Protection, Defendant–Respondent. State of New Jersey, Department of Environmental Protection, Plaintiff–Respondent, v. Raymond Braun and Jayne K. Braun, Defendants–Appellants, and New York Community Bancorp, Defendant–Respondent. State of New Jersey, Department of Environmental Protection, Plaintiff–Respondent, v. Thomas Buckley and Karen Buckley, Defendants–Appellants, and TD Bank North, Inc., d/b/a TD Bank, N.A., Defendant–Respondent. State of New Jersey, Department of Environmental Protection, Plaintiff–Respondent, v. Gerard Losurdo and Nina Losurdo, Defendants–Appellants, and U.S. Bank, N.A., Defendant–Respondent.
CourtNew Jersey Superior Court — Appellate Division

Scott A. Heiart argued the cause for appellants North Beach 1003, L.L.C., Shanin Specter and Tracey Specter, Thomas R. Kline, Robert S. Hekemian, and Richard Carolan and Tina Carolan (Carlin & Ward, P.C., attorneys; Mr. Heiart, on the briefs).

Mark S. Winter argued the cause for appellants Jeanette F. Frankenberg and Louis Campisano (Stern Lavinthal Frankenberg & Norgaard, L.L.C., attorneys; Mr. Winter, on the briefs).

John H. Buonocore, Jr. and Anthony F. DellaPelleargued the cause for appellants Beverly T. Cammarano Qualified Personal Residence Trust, Beverly T. Cammarano and Robert J. Cammarano as co-trustees, Barbara J. Weldon, Colleen M. Rowe and Kelly A. Rowe, Kevin Klingert and Krislyn Klingert, Patricia Roberts Trust, Patricia Roberts as trustee, and Scott Gusmer, David Castelblanco and Laura Engelhardt, Richard Malouf and Marilyn Malouf, Frederick Smith, Sandra S. Holder–Brown as trustee for Sandra S. Holder–Brown Trust and Deborah A. Smith, Michael Van Kralingen and Sandra Miller as trustees of the Van Kralingen Residence Trust II, Dennis La Plante and Catherine La Plante, Courtney M. Alesso and John A. Alexy, co-trustees of the Courtney M. Alesso 2012 Trust, Minalkumar A. Patel Living Trust, Minalkumar A. Patel and Asra Warsi as trustees, Asra Warsi Living Trust, Minalkumar A. Patel and Asra Warsi as trustees, Neil Kahanovitz and Suzanne Kahanovitz, Jill P. Giles Revocable Trust, Jill P. Giles as trustee, Nina Ritter, Sharon Cruz, Lawrence E. Bathgate, II, Austin Fragomen and Gwendolyn Fragomen, SMATCO, L.P., Ann F. Mestres, Lowell Millar and Jennifer Millar, Raymond Braun and Jayne K. Braun, Thomas Buckley and Karen Buckley, and Gerard Losurdo and Nina Losurdo (McKirdy & Riskin, P.A., attorneys; Mr. Buonocoreand Mr. DellaPelle, on the briefs).

David C. Apy, Assistant Attorney General, and Ronald L. Perl, argued the cause for respondent Department of Environmental Protection (Christopher S. Porrino, Attorney General, and Hill Wallack, L.L.P., attorneys; Melissa H. Raksa, Assistant Attorney General, of counsel; David S. Frankel, Kristina L. Miles, Bruce A. Velzy, Deputy Attorneys General, and Dale Laster Lessne, on the brief).

Before Judges Yannotti, Fasciale, and Gilson.

The opinion of the court was delivered by GILSON, J.A.D.

These consolidated appeals present the questions whether the New Jersey Department of Environmental Protection (DEP) has the authority to condemn private property to take perpetual easements for shore protection purposes and whether the easements can allow public access to, and use of, the areas covered by the easements. We hold that the DEP has such authority and the easements that allow for publicly funded beach protection projects can include public access and use. Thus, we affirm the trial court's final judgments finding that the DEP properly exercised its power of eminent domain and appointing commissioners to determine the value of the takings. We also affirm the trial court's orders denying defendants' motion to dismiss the DEP's complaints and granting summary judgment to the DEP on the declaratory judgment action brought by certain appellants.

I.

Under the New Jersey public trust doctrine, the State holds ownership over all shore-lined lands that are flowed by the tide up to the mean high water mark. City of Long Branch v. Jui Yung Liu , 203 N.J. 464, 475, 4 A. 3d 542 (2010) (citing O'Neill v. State Highway Dep't , 50 N.J. 307, 323, 235 A. 2d 1 (1967) ). Accordingly, New Jersey has historically managed, protected, and developed its shoreline.

Over the past several decades, the federal government has assisted New Jersey in protecting coastal communities from the impacts of storms and beach erosion. In 1986, Congress enacted the Water Resources Development Act (WRDA), 33 U.S.C.A. § 2211 to § 2227. Under the WRDA, the federal government will pay between fifty to sixty-five percent of the costs of such projects and the State will be responsible for the remaining balance. 33 U.S.C.A. § 2213.

In the aftermath of Superstorm Sandy, Congress passed the Disaster Relief Appropriations Act of 2013 (Sandy Act), Pub. L. No. 113–2, 127 Stat. 4. The Sandy Act authorizes the Army Corps of Engineers (Army Corps) to construct beach replenishment and dune construction projects to protect the New Jersey shoreline. The Sandy Act also provides that the federal government will fund one hundred percent of the costs for the completion of some of the projects. The State's contribution for those projects can be deferred and financed over a period of thirty years.

In September 2013, Governor Chris Christie issued Executive Order No. 140. That order...

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9 cases
  • State v. 1 Howe St. Bay Head, LLC
    • United States
    • New Jersey Superior Court — Appellate Division
    • April 16, 2020
    ...we will briefly summarize the pertinent procedural history and facts leading to these appeals. In State v. North Beach 1003, LLC, 451 N.J. Super. 214, 223, 166 A.3d 239 (App. Div. 2017), we held DEP had the authority to "condemn private property to take perpetual easements for shore protect......
  • State v. 10.041 Acres of Land in the Borough of Point Pleasant Beach
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    • New Jersey Superior Court — Appellate Division
    • April 16, 2020
    ...premises. DEP has maintained that this language is necessary to secure federal funding. In fact, in State v. North Beach 1003, LLC, 451 N.J. Super. 214, 240, 166 A.3d 239 (App. Div. 2017), this court concluded that "the Army Corps has interpreted its responsibility to include requiring publ......
  • Scaduto v. State
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    • New Jersey Superior Court — Appellate Division
    • January 12, 2023
    ...County stretching from Berkeley Township to Point Pleasant Beach begun after Superstorm Sandy. See State v. N. Beach 1003, LLC, 451 N.J. Super. 214, 223-25, 166 A.3d 239 (App. Div. 2017) (describing the project). In its complaint, the DEP acknowledged plaintiffs' access easement provided in......
  • State v. Bay Head Improvement Association
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    • New Jersey Superior Court — Appellate Division
    • July 12, 2021
    ...here, impacted the fee simple ownership of the condemned land, this court approved of the appraiser's valuation of the condemned property. Id. at 245. We did not require the factfinder to make a separate determination as to how the change in ownership affected the value of the condemned lan......
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