STATE OF NEW JERSEY, BY THE DEP VS. 1 HOWE STREET BAY HEAD, LLC STATE OF NEW JERSEY, BY THE DEP VS. 623 EAST AVENUE, LLC STATE OF NEW JERSEY, BY THE DEP VS. MICHAEL CORTESE AND SAUNDRA CORTESE STATE OF NEW JERSEY, BY THE DEP VS. PAOLO COSTA STATE OF NEW JERSEY, BY THE DEP VS. DAVID J. FARRIS AND JILL E. FARRIS STATE OF NEW JERSEY, BY THE DEP VS. ALEXANDER MCGINNIS FRAZIER STATE OF NEW JERSEY, BY THE DEP VS. FRANK J. HANUS STATE OF NEW JERSEY, BY THE DEP VS. JAMES F. HIGGINS STATE OF NEW JERSEY, BY THE DEP VS. LAUGHING MERMAID STATE OF NEW JERSEY, BY THE DEP VS. OWEN T. LYNCH STATE OF NEW JERSEY, BY THE DEP VS. DEBRA JONES STATE OF NEW JERSEY, BY THE DEP VS. ANN F. MESTRES STATE OF NEW JERSEY, BY THE DEP VS. LOWELL MILLAR STATE OF NEW JERSEY, BY THE DEP VS. ROBERT A.M. RENZULLI STATE OF NEW JERSEY, BY THE DEP VS. RDCC STATE OF NEW JERSEY, BY THE DEP VS. MARTIN A. ROSEN STATE OF NEW JERSEY, BY THE DEP VS. JEFFREY H. SANDS STATE OF NEW JERSEY, BY THE DEP VS. SMATCO STATE OF NEW JERSEY, BY THE DEP VS. STEPHANIE BASTEK STATE OF NEW JERSEY, BY THE DEP VS. WILLIAM H. WELDON, IV STATE OF NEW JERSEY, BY THE DEP VS. KURT T. BOROWSKY STATE OF NEW JERSEY, BY THE DEP VS. 11 FALLS LP STATE OF NEW JERSEY, BY THE DEP VS. BRUCE F. WESSON STATE OF NEW JERSEY, BY THE DEP VS. EVARISTO CRUZ STATE OF NEW JERSEY, BY THE DEP VS. LAWRENCE D. COFSKY STATE OF NEW JERSEY, BY THE DEP VS. BARBARA T. DENIHAN STATE OF NEW JERSEY, BY THE DEP VS. WILLIAM B. SMITH STATE OF NEW JERSEY, BY THE DEP VS. LAWRENCE E. BATHGATE STATE OF NEW JERSEY, BY THE DEP VS. ROBERT F. BURKE STATE OF NEW JERSEY, BY THE DEP VS. EDWARD CRUZ STATE OF NEW JERSEY, BY THE DEP VS. EDWARD CRUZ STATE OF NEW JERSEY, BY THE DEP VS. SCOTT BELAIR STATE OF NEW JERSEY, BY THE DEP VS. PETER J. NEFF STATE OF NEW JERSEY, BY THE DEP VS. FRANK RONAN STATE OF NEW JERSEY, BY THE DEP VS. ADA M. DRAESEL STATE OF NEW JERSEY, BY THE DEP VS. PETER C. GEHARD STATE OF NEW JERSEY, BY THE DEP VS. BARBARA O. ENGLER STATE OF NEW JERSEY, BY THE DEP VS. 627 EAST AVE. STATE OF NEW JERSEY, BY THE DEP VS. CYNTHIA F. CAMPBELL STATE OF NEW JERSEY, BY THE DEP VS. RICHARD RAFFETTO STATE OF NEW JERSEY, BY THE DEP VS. 609 EAST R&B STATE OF NEW JERSEY, BY THE DEP VS. WILLIAM W. FORTENBAUGH STATE OF NEW JERSEY, BY THE DEP VS. AUSTIN T. FRAGOMEN STATE OF NEW JERSEY, BY THE DEP VS. LYNN P. HARRINGTON STATE OF NEW JERSEY, BY THE DEP VS. CHARLES A. JANZEN STATE OF NEW JERSEY, BY THE DEP VS. KATHERINE C. OUTCALT STATE OF NEW JERSEY, BY THE DEP VS. ALTHEA C. SMITH STATE OF NEW JERSEY, BY THE DEP VS. 0.414 ACRES STATE OF NEW JERSEY, BY THE DEP VS. W. GEORGE PARKER STATE OF NEW JERSEY, BY THE DEP VS. BAY HEAD STATE OF NEW JERSEY, BY THE DEP VS. MARIAN E. COSTIGAN STATE OF NEW JERSEY, BY THE DEP VS. STEPHAN DISTLER STATE OF NEW JERSEY, BY THE DEP VS. KEVIN O'BRIEN STATE OF NEW JERSEY, BY THE DEP VS. MARK FEDORCIK STATE OF NEW JERSEY, BY THE DEP VS. GAEL HABERNICKEL STATE OF NEW JERSEY, BY THE DEP VS. HEIN GROUP STATE OF NEW JERSEY, BY THE DEP VS. THE HINDE- LONG INVESTMENTS STATE OF NEW JERSEY, BY THE DEP VS. JUSTIN SIDRIAN STATE OF NEW JERSEY, BY THE DEP VS. 229 EAST AVE. STATE OF NEW JERSEY, BY THE DEP VS. THE TYSON PARTNERS STATE OF NEW JERSEY, BY THE DEP VS. JANE WILLIAMS STATE OF NEW JERSEY, BY THE DEP VS. BAY HEAD IMPROVEMENT (L-2239-17, L-1935-17, L-1936-17, L-1922-17, L-2048-17, L-2054-17, L-1923-17, L-1983-17, L-1985-17, L-2050-17, L-1934-17, L-2046-17, L-2071-17, L-2242-17, L-2049-17, L-1987-17, L-1988-17, L-2060-17, L-2052-17, L-2061-17, L-0280-17, L-3296-15, L-1620-16, L-3340-16, L-2418-16, L-2570-16, L-2751-16, L-1619-16, L-2108-17, L-2568-16, L-3133-16, L-2950-16, L-1547-16, L-1618-16, L-2569-16, L-2969-16, L-2115-17, L-2970-16, L-2419-16, L-3132-16, L-2953-16, L-2595-17, L-2659-17, L-2598-17, L-2053-17, L-2628-17, L-1975-17, L-2215-17, L-2594-17, L-1950-16, L-2832-16, L-2852-16, L-2772-16, L-2831-16, L-2773-16, L-2650-17, L-2605-17, L-2627-17, L-2610-17, L-2609-17, L-2604-17, L-2904-17, and L-2607-17, OCEAN COUNTY AND STATEWIDE) (CONSOLIDATED) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NOS. A-1418-17T4;
A-1419-17T4; A-1420-17T4;
A-1421-17T4; A-1422-17T4;
A-1423-17T4; A-1424-17T4;
A-1425-17T4; A-1426-17T4;
APPROVED FOR PUBLICATION
A-1427-17T4; A-1428-17T4;
A-1429-17T4; A-1430-17T4;
April 16, 2020 A-1432-17T4; A-1433-17T4;
APPELLATE DIVISION A-1434-17T4; A-1435-17T4;
A-1436-17T4; A-1437-17T4;
A-1438-17T4; A-1440-17T4;
A-1444-17T4; A-1445-17T4;
A-1446-17T4; A-1447-17T4;
A-1448-17T4; A-1449-17T4;
A-1450-17T4; A-1451-17T4;
A-1452-17T4; A-1453-17T4;
A-1454-17T4; A-1455-17T4;
A-1456-17T4; A-1457-17T4;
A-1458-17T4; A-1459-17T4;
A-1460-17T4; A-1461-17T4;
A-1462-17T4; A-1463-17T4;
A-1468-17T4; A-1472-17T4;
A-1473-17T4; A-1474-17T4;
A-1475-17T4; A-1476-17T4;
A-1477-17T4; A-1478-17T4;
A-1495-17T4; A-1516-17T4;
A-1538-17T4; A-1539-17T4;
A-1558-17T4; A-1619-17T4;
A-1626-17T4; A-1648-17T4;
A-1656-17T4; A-1657-17T4;
A-1659-17T4; A-1660-17T4;
A-2080-17T4
STATE OF NEW JERSEY, BY THE
DEPARTMENT OF ENVIRONMENTAL
PROTECTION,
Plaintiff-Respondent,
v.
1 HOWE STREET BAY HEAD, LLC,
Defendant-Appellant.
__________________________________
STATE OF NEW JERSEY, BY THE
DEPARTMENT OF ENVIRONMENTAL
PROTECTION,
Plaintiff-Respondent,
v.
623 EAST AVENUE, LLC,
Defendant-Appellant.
__________________________________
STATE OF NEW JERSEY, BY THE
DEPARTMENT OF ENVIRONMENTAL
PROTECTION,
Plaintiff-Respondent,
v.
MICHAEL CORTESE, and SAUNDRA
CORTESE,
Defendants-Appellants.
__________________________________
A-1418-17T4
2
STATE OF NEW JERSEY, BY THE
DEPARTMENT OF ENVIRONMENTAL
PROTECTION,
Plaintiff-Respondent,
v.
PAOLO COSTA and WENDY COSTA,
Defendants-Appellants.
__________________________________
STATE OF NEW JERSEY, BY THE
DEPARTMENT OF ENVIRONMENTAL
PROTECTION,
Plaintiff-Respondent,
v.
DAVID J. FARRIS and JILL E. FARRIS,
Defendants-Appellants.
__________________________________
STATE OF NEW JERSEY, BY THE
DEPARTMENT OF ENVIRONMENTAL
PROTECTION,
Plaintiff-Respondent,
v.
ALEXANDER MCGINNIS FRAZIER,
TRUSTEE OF THE ALEXANDER
FRAZIER 2011 IRREVOCABLE TRUST;
ANN SCHUYLER FRAZIER, TRUSTEE
OF THE SCHUYLER FRAZIER 2011
IRREVOCABLE TRUST,
A-1418-17T4
3
Defendants-Appellants.
__________________________________
STATE OF NEW JERSEY, BY THE
DEPARTMENT OF ENVIRONMENTAL
PROTECTION,
Plaintiff-Respondent,
v.
FRANK J. HANUS III,
Defendant-Appellant.
__________________________________
STATE OF NEW JERSEY, BY THE
DEPARTMENT OF ENVIRONMENTAL
PROTECTION,
Plaintiff-Respondent,
v.
JAMES F. HIGGINS and JACQUELYN
M. HIGGINS,
Defendants-Appellants,
and
INTERNAL REVENUE SERVICE,
Defendant.
__________________________________
STATE OF NEW JERSEY, BY THE
DEPARTMENT OF ENVIRONMENTAL
PROTECTION,
A-1418-17T4
4
Plaintiff-Respondent,
v.
LAUGHING MERMAID
PRODUCTIONS, LLC,
Defendant-Appellant,
and
WELLS FARGO BANK, NA,
Defendant.
__________________________________
STATE OF NEW JERSEY, BY THE
DEPARTMENT OF ENVIRONMENTAL
PROTECTION,
Plaintiff-Respondent,
v.
OWEN T. LYNCH and DIANE G.
LYNCH,
Defendants-Appellants,
and
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC.,
Defendant.
__________________________________
STATE OF NEW JERSEY, BY THE
DEPARTMENT OF ENVIRONMENTAL
A-1418-17T4
5
PROTECTION,
Plaintiff-Respondent,
v.
DEBRA JONES McCURRY, GWENETH
JONES COTE, and THOMAS JONES, III,
Defendants-Appellants.
__________________________________
STATE OF NEW JERSEY, BY THE
DEPARTMENT OF ENVIRONMENTAL
PROTECTION,
Plaintiff-Respondent,
v.
ANN F. MESTRES,
Defendant-Appellant.
__________________________________
STATE OF NEW JERSEY, BY THE
DEPARTMENT OF ENVIRONMENTAL
PROTECTION,
Plaintiff-Respondent,
v.
LOWELL MILLAR and JENNIFER
MILLAR,
Defendants-Appellants.
_________________________________
A-1418-17T4
6
STATE OF NEW JERSEY, BY THE
DEPARTMENT OF ENVIRONMENTAL
PROTECTION,
Plaintiff-Respondent,
v.
ROBERT A.M. RENZULLI,
FRANCESCA M. RENZULLI,
LIBERO M. RENZULLI, and
GUILANA M. RENZULLI,
Defendants-Appellants,
and
MANASQUAN SAVINGS BANK,
Defendant.
__________________________________
STATE OF NEW JERSEY, BY THE
DEPARTMENT OF ENVIRONMENTAL
PROTECTION,
Plaintiff-Respondent,
v.
RDCC, LLC,
Defendant-Appellant.
__________________________________
STATE OF NEW JERSEY, BY THE
DEPARTMENT OF ENVIRONMENTAL
PROTECTION,
Plaintiff-Respondent,
A-1418-17T4
7
v.
MARTIN N. ROSEN, AS TRUSTEE OF
THE MARTIN N. ROSEN QUALIFIED
PERSONAL RESIDENCE INTEREST
TRUST; and BARBARA ROSEN, AS
TRUSTEE OF THE BARBARA ROSEN
QUALIFIED PERSONAL INTEREST
TRUST,
Defendants-Appellants.
__________________________________
STATE OF NEW JERSEY, BY THE
DEPARTMENT OF ENVIRONMENTAL
PROTECTION,
Plaintiff-Respondent,
v.
JEFFREY H. SANDS,
Defendant-Appellant.
__________________________________
STATE OF NEW JERSEY, BY THE
DEPARTMENT OF ENVIRONMENTAL
PROTECTION,
Plaintiff-Respondent,
v.
SMATCO, A PENNSYLVANIA
LIMITED PARTNERSHIP, LLC,
Defendant-Appellant.
__________________________________
A-1418-17T4
8
STATE OF NEW JERSEY, BY THE
DEPARTMENT OF ENVIRONMENTAL
PROTECTION,
Plaintiff-Respondent,
v.
STEPHANIE BASTEK, TRUSTEE OF
THE STUGART FAMILY TRUST,
DATED SEPTEMBER 30, 2009,
Defendant-Appellant.
__________________________________
STATE OF NEW JERSEY, BY THE
DEPARTMENT OF ENVIRONMENTAL
PROTECTION,
Plaintiff-Respondent,
v.
WILLIAM H. WELDON, IV,
Defendant-Appellant.
__________________________________
STATE OF NEW JERSEY, BY THE
DEPARTMENT OF ENVIRONMENTAL
PROTECTION,
Plaintiff-Respondent,
v.
KURT T. BOROWSKY, AS TRUSTEE
FOR THE HARTINGTON J. TRUST,
A-1418-17T4
9
Defendant-Appellant,
and
JPMORGAN CHASE BANK, NA,
Defendant.
__________________________________
STATE OF NEW JERSEY, BY THE
DEPARTMENT OF ENVIRONMENTAL
PROTECTION OFFICE OF FLOOD
HAZARD RISK REDUCTION
MEASURES,
Plaintiff-Respondent,
v.
11 FALLS, LP, and JPMORGAN
CHASE BANK, NA,
Defendant-Appellant.
__________________________________
STATE OF NEW JERSEY, BY THE
DEPARTMENT OF ENVIRONMENTAL
PROTECTION,
Plaintiff-Respondent,
v.
BRUCE F. WESSON, AS TRUSTEE OF
THE BRUCE F. WESSON 8-YEAR
QUALIFIED PERSONAL RESIDENCE
TRUST DATED OCTOBER 24, 2012
(50%) AND ELIZABETH M. WESSON
8-YEAR QUALIFIED PERSONAL
RESIDENCE TRUST DATED
A-1418-17T4
10
OCTOBER 24, 2012 (50%), AS
TENANTS IN COMMON,
Defendant-Appellant,
and
FIRST NATIONWIDE MORTGAGE
CORPORATION, A DELAWARE
CORPORATION, and FIRST SAVINGS
BANK,
Defendants.
__________________________________
STATE OF NEW JERSEY, BY THE
DEPARTMENT OF ENVIRONMENTAL
PROTECTION,
Plaintiff-Respondent,
v.
STEPHEN C. WINTER, IN HIS
CAPACITY AS TRUSTEE OF THE
FRANK EDIE CURAN, III TRUST;
STEPHEN C. WINTER, IN HIS
CAPACITY AS TRUSTEE OF THE
STACY CURRAN LINDSAY TRUST;
and STEPHEN C. WINTER, IN HIS
CAPACITY AS TRUSTEE OF THE
LEWIS VALENTINE CURRAN TRUST,
Defendants-Appellants.
__________________________________
STATE OF NEW JERSEY, BY THE
DEPARTMENT OF ENVIRONMENTAL
PROTECTION,
A-1418-17T4
11
Plaintiff-Respondent,
v.
EVARISTO CRUZ AND ELAINE CRUZ,
HUSBAND AND WIFE,
Defendants-Appellants,
and
WELLS FARGO BANK, NA,
Defendant.
__________________________________
STATE OF NEW JERSEY, BY THE
DEPARTMENT OF ENVIRONMENTAL
PROTECTION,
Plaintiff-Respondent,
v.
LAWRENCE D. COFSKY and BETH
COFSKY,
Defendants-Appellants,
and
PNC BANK, NA,
Defendant.
__________________________________
STATE OF NEW JERSEY, BY THE
DEPARTMENT OF ENVIRONMENTAL
PROTECTION,
A-1418-17T4
12
Plaintiff-Respondent,
v.
BARBARA T. DENIHAN,
Defendant-Appellant.
__________________________________
STATE OF NEW JERSEY, BY THE
DEPARTMENT OF ENVIRONMENTAL
PROTECTION,
Plaintiff-Respondent,
v.
WILLIAM B. SMITH and MARY ANN
L. SMITH,
Defendants-Appellants.
__________________________________
STATE OF NEW JERSEY, BY THE
DEPARTMENT OF ENVIRONMENTAL
PROTECTION,
Plaintiff-Respondent,
v.
LAWRENCE E. BATHGATE, II,
Defendant-Appellant,
and
COMMERCE BANK, NA; RICHARD S.
SAMBOL; MAGYAR BANK,
A-1418-17T4
13
Defendants.
__________________________________
STATE OF NEW JERSEY, BY THE
DEPARTMENT OF ENVIRONMENTAL
PROTECTION,
Plaintiff-Respondent,
v.
ROBERT F. BURKE, JR.,
Defendant-Appellant,
and
BAY HEAD IMPROVEMENT
ASSOCIATION,
Defendant.
_________________________________
STATE OF NEW JERSEY, BY THE
DEPARTMENT OF ENVIRONMENTAL
PROTECTION,
Plaintiff-Respondent,
v.
EDWARD CRUZ and SHARON CRUZ,
Defendants-Appellants.
__________________________________
STATE OF NEW JERSEY, BY THE
DEPARTMENT OF ENVIRONMENTAL
PROTECTION,
Plaintiff-Respondent,
A-1418-17T4
14
v.
EDWARD CRUZ, IN HIS CAPACITY
AS TRUSTEE OF THE EDWARD CRUZ
QUALIFIED PERSONAL RESIDENCE
TRUST DATED DECEMBER 28, 2011;
SHARON CRUZ, IN HER CAPACITY
AS TRUSTEE OF THE SHARON CRUZ
QUALIFIED PERSONAL RESIDENCE
TRUST DATED DECEMBER 28, 2011,
Defendants-Appellants,
and
BANK OF AMERICA, NA,
Defendant.
__________________________________
STATE OF NEW JERSEY, BY THE
DEPARTMENT OF ENVIRONMENTAL
PROTECTION,
Plaintiff-Respondent,
v.
SCOTT BELAIR and SARAH BAYNE
BELAIR,
Defendants-Appellants.
__________________________________
STATE OF NEW JERSEY, BY THE
DEPARTMENT OF ENVIRONMENTAL
PROTECTION,
Plaintiff-Respondent,
A-1418-17T4
15
v.
PETER J. NEFF and JOAN K. NEFF,
Defendants-Appellants.
__________________________________
STATE OF NEW JERSEY, BY THE
DEPARTMENT OF ENVIRONMENTAL
PROTECTION,
Plaintiff-Respondent,
v.
FRANK RONAN,
Defendant-Appellant,
and
THE CHASE MANHATTAN BANK,
Defendant.
__________________________________
STATE OF NEW JERSEY, BY THE
DEPARTMENT OF ENVIRONMENTAL
PROTECTION,
Plaintiff-Respondent,
v.
ADA M. DRAESEL, AS TRUSTEE OF
HERBERT G. DRAESEL, JR.,
QUALIFIED PERSONAL RESIDENCE
TRUST; HERBERT G. DRAESEL, JR.,
A-1418-17T4
16
AS TRUSTEE OF THE HERBERT G.
DRAESEL, JR. QUALIFIED PERSONAL
RESIDENCE TRUST; HERBERT G.
DRAESEL, JR. AS TRUSTEE OF THE
ADA M. DRAESEL, QUALIFIED
PERSONAL RESIDENCE TRUST,
Defendants-Appellants,
and
UNITED STATES SMALL BUSINESS
ADMINISTRATION, AN AGENCY OF
THE GOVERNMENT OF THE UNITED
STATES OF AMERICA,
Defendant.
__________________________________
STATE OF NEW JERSEY, BY THE
DEPARTMENT OF ENVIRONMENTAL
PROTECTION,
Plaintiff-Respondent,
v.
PETER C. GERHARD and KRISTEN
GERHARD,
Defendants-Appellants.
__________________________________
STATE OF NEW JERSEY, BY THE
DEPARTMENT OF ENVIRONMENTAL
PROTECTION,
Plaintiff-Respondent,
v.
A-1418-17T4
17
BARBARA O. ENGLER; CAROLINE O.
SMALLWOOD; MARGARET A.
LANGER, TRUSTEE OF THE
MARGARET ANNE LANGER 1995
REVOCABLE TRUST DATED APRIL
27, 1995,
Defendants-Appellants.
__________________________________
STATE OF NEW JERSEY, BY THE
DEPARTMENT OF ENVIRONMENTAL
PROTECTION,
Plaintiff-Respondent,
v.
627 EAST AVENUE BAY HEAD NJ,
LLC, A NEW JERSEY LIMITED
LIABILITY COMPANY; 627 EAST
AVENUE BAY HEAD NJ, INC., A NEW
JERSEY CORPORATION,
Defendants-Appellants,
and
MANASQUAN SAVINGS BANK,
Defendants.
__________________________________
STATE OF NEW JERSEY, BY THE
DEPARTMENT OF ENVIRONMENTAL
PROTECTION,
Plaintiff-Respondent,
A-1418-17T4
18
v.
CYNTHIA F. CAMPBELL; MARY
ELIZABETH PARKHURST, TRUSTEE
UNDER THE MARY ELIZABETH
PARKHURST LIVING TRUST;
RICHARD G. PARKHURST, TRUSTEE
UNDER THE MARY ELIZABETH
PARKHURST LIVING TRUST,
Defendants-Appellants,
and
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC.,
Defendant.
__________________________________
STATE OF NEW JERSEY, BY THE
DEPARTMENT OF ENVIRONMENTAL
PROTECTION,
Plaintiff-Respondent,
v.
RICHARD RAFFETTO and ARIANE
RAFFETTO,
Defendants-Appellants,
and
MERRILL LYNCH CREDIT CORP.;
BANK OF AMERICA, NA; UNITED
STATES SMALL BUSINESS
ADMINISTRATION,
A-1418-17T4
19
Defendants.
_________________________________
STATE OF NEW JERSEY, BY THE
DEPARTMENT OF ENVIRONMENTAL
PROTECTION,
Plaintiff-Respondent,
v.
609 EAST R&B, LLC,
Defendant-Appellant,
and
BAY HEAD IMPROVEMENT
ASSOCIATION,
Defendant.
__________________________________
STATE OF NEW JERSEY, BY THE
DEPARTMENT OF ENVIRONMENTAL
PROTECTION,
Plaintiff-Respondent,
v.
WILLIAM W. FORTENBAUGH;
CONSTANCE D. FORTENBAUGH,
INDIVIDUALLY; CONSTANCE D.
FORTENBAUGH, IN HER CAPACITY
AS TRUSTEE OF THE 2010
FORTENBAUGH FAMILY TRUST,
Defendants-Appellants.
A-1418-17T4
20
__________________________________
STATE OF NEW JERSEY, BY THE
DEPARTMENT OF ENVIRONMENTAL
PROTECTION,
Plaintiff-Respondent,
v.
AUSTIN T. FRAGOMEN and
GWENDOLYN M. FRAGOMEN,
Defendants-Appellants,
and
BAY HEAD IMPROVEMENT
ASSOCIATION,
Defendant.
__________________________________
STATE OF NEW JERSEY, BY THE
DEPARTMENT OF ENVIRONMENTAL
PROTECTION,
Plaintiff-Respondent,
v.
LYNN P. HARRINGTON, AS TRUSTEE
OF THE LYNN P. HARRINGTON 2009
RESIDENCE TRUST DATED
DECEMBER 30, 2009 (ONE-HALF
UNDIVIDED INTEREST); KATE E.
DENIOUS AND JAMES R. EVERITT,
CO-TRUSTEES OF THE KATE
P. EVERITT QUALIFIED PERSONAL
RESIDENCE TRUST, DATED MAY 2,
A-1418-17T4
21
2012 AND THE SAMUEL A. EVERITT
QUALIFIED PERSONAL RESIDENCE
TRUST, DATED MAY 2, 2012 (ONE-
HALF UNDIVIDED INTEREST),
Defendants-Appellants.
__________________________________
STATE OF NEW JERSEY, BY THE
DEPARTMENT OF ENVIRONMENTAL
PROTECTION,
Plaintiff-Respondent,
v.
CHARLES A. JANTZEN and LINDA
JANTZEN,
Defendants-Appellants,
and
BAY HEAD IMPROVEMENT
ASSOCIATION,
Defendant.
__________________________________
STATE OF NEW JERSEY, BY THE
DEPARTMENT OF ENVIRONMENTAL
PROTECTION,
Plaintiff-Respondent,
v.
KATHERINE C. OUTCALT, TRUSTEE
OF THE KATHERINE C. OUTCALT
TRUST DATED JUNE 9, 2003, AS
AMENDED,
A-1418-17T4
22
Defendant-Appellant.
__________________________________
STATE OF NEW JERSEY, BY THE
DEPARTMENT OF ENVIRONMENTAL
PROTECTION,
Plaintiff-Respondent,
v.
ALTHEA C. SMITH,
Defendant-Appellant.
__________________________________
STATE OF NEW JERSEY, BY THE
DEPARTMENT OF ENVIRONMENTAL
PROTECTION,
Plaintiff-Respondent,
v.
0.414-ACRES OF LAND IN THE
BOROUGH OF POINT PLEASANT
BEACH, OCEAN COUNTY, NEW
JERSEY; STEPHEN H.
KORZENIOWSKI AND DEBORAH
KORZENIOWSKI, AS TRUSTEES OF
THE KORZENIOWSKI TRUST DATED
DECEMBER 19, 2013, FEE OWNER,
Defendants-Appellants,
and
CHARLES SCHWAB BANK,
MORTGAGEE,
A-1418-17T4
23
Defendant.
_________________________________
STATE OF NEW JERSEY, BY THE
DEPARTMENT OF ENVIRONMENTAL
PROTECTION,
Plaintiff-Respondent,
v.
W. GEORGE PARKER, AS TRUSTEE
OF THE ELEANOR M. PARKER
QUALIFIED PERSONAL RESIDENCE
TRUST II; ELEANOR M. PARKER, AS
TRUSTEE OF THE W. GEORGE
PARKER QUALIFIED PERSONAL
RESIDENCE TRUST II,
Defendants-Appellants.
__________________________________
STATE OF NEW JERSEY, BY THE
DEPARTMENT OF ENVIRONMENTAL
PROTECTION,
Plaintiff-Respondent,
v.
BAY HEAD PROPERTY II, LLC, A
NEW JERSEY LIMITED LIABILITY
COMPANY,
Defendant-Appellant.
__________________________________
A-1418-17T4
24
STATE OF NEW JERSEY, BY THE
DEPARTMENT OF ENVIRONMENTAL
PROTECTION,
Plaintiff-Respondent,
v.
MARIAN E. COSTIGAN,
Defendant-Appellant.
__________________________________
STATE OF NEW JERSEY, BY THE
DEPARTMENT OF ENVIRONMENTAL
PROTECTION,
Plaintiff-Respondent,
v.
STEPHEN DISTLER and ROXANNE K.
DISTLER,
Defendants-Appellants,
and
MERRILL LYNCH CREDIT
CORPORATION,
Defendant.
__________________________________
STATE OF NEW JERSEY, BY THE
DEPARTMENT OF ENVIRONMENTAL
PROTECTION,
Plaintiff-Respondent,
A-1418-17T4
25
v.
KEVIN O'BRIEN and JEANINE
O'BRIEN,
Defendants-Appellants,
and
LUXURY MORTGAGE CORP.,
Defendant.
_________________________________
STATE OF NEW JERSEY, BY THE
DEPARTMENT OF ENVIRONMENTAL
PROTECTION,
Plaintiff-Respondent,
v.
MARK FEDORCIK and HOLLY
FEDORCIK,
Defendants-Appellants.
__________________________________
STATE OF NEW JERSEY, BY THE
DEPARTMENT OF ENVIRONMENTAL
PROTECTION,
Plaintiff-Respondent,
v.
GAEL HABERNICKEL IN HER
CAPACITY AS TRUSTEE OF THE
GAEL HABERNICKEL (1992)
QUALIFIED PERSONAL SECONDARY
A-1418-17T4
26
RESIDENCE TRUST, UTA, DTD
DECEMBER 18, 1992; DUKE
HABERNICKEL IN HIS CAPACITY AS
TRUSTEE OF THE GAEL
HABERNICKEL (1992) QUALIFIED
PERSONAL SECONDARY RESIDENCE
TRUST, UTA, DTD DECEMBER 18,
1992,
Defendants-Appellants,
and
BAY HEAD IMPROVEMENT
ASSOCIATION,
Defendant.
__________________________________
STATE OF NEW JERSEY, BY THE
DEPARTMENT OF ENVIRONMENTAL
PROTECTION,
Plaintiff-Respondent,
v.
HEIN GROUP, LLC,
Defendant-Appellant,
and
BAY HEAD IMPROVEMENT
ASSOCIATION,
Defendant.
_________________________________
A-1418-17T4
27
STATE OF NEW JERSEY, BY THE
DEPARTMENT OF ENVIRONMENTAL
PROTECTION,
Plaintiff-Respondent,
v.
THE HINDELONG INVESTMENTS
LIMITED PARTNERSHIP,
Defendant-Appellant,
and
BAY HEAD IMPROVEMENT
ASSOCIATION,
Defendant.
__________________________________
STATE OF NEW JERSEY, BY THE
DEPARTMENT OF ENVIRONMENTAL
PROTECTION,
Plaintiff-Respondent,
v.
JUSTIN SIDRIAN and LEE SIDRIAN,
Defendants-Appellants,
and
BAY HEAD IMPROVEMENT
ASSOCIATION,
Defendant.
_________________________________
A-1418-17T4
28
STATE OF NEW JERSEY, BY THE
DEPARTMENT OF ENVIRONMENTAL
PROTECTION,
Plaintiff-Respondent,
v.
229 EAST AVENUE, LLC,
Defendant-Appellant,
and
BAY HEAD IMPROVEMENT
ASSOCIATION,
Defendant.
__________________________________
STATE OF NEW JERSEY, BY THE
DEPARTMENT OF ENVIRONMENTAL
PROTECTION,
Plaintiff-Respondent,
v.
THE TYSON PARTNERS,
Defendant-Appellant,
and
MANASQUAN SAVINGS BANK
and BAY HEAD IMPROVEMENT
ASSOCIATION,
Defendants.
A-1418-17T4
29
__________________________________
STATE OF NEW JERSEY, BY THE
DEPARTMENT OF ENVIRONMENTAL
PROTECTION,
Plaintiff-Respondent,
v.
BAY HEAD IMPROVEMENT
ASSOCIATION,
Defendant-Appellant.
__________________________________
DOCKET NO. A-1705-17T4
STATE OF NEW JERSEY, BY THE
DEPARTMENT OF ENVIRONMENTAL
PROTECTION,
Plaintiff-Respondent,
v.
JANE WILLIAMS, AS TRUSTEE OF
THE 837 EAST AVENUE TRUST,
Defendant-Appellant.
______________________________________
Argued February 3, 2020 – Decided April 16, 2020
Before Judges Fasciale, Rothstadt and Moynihan.
On appeal from the Superior Court of New Jersey,
Law Division, Ocean County, Docket Nos. L-2239-
17, L-1935-17, L-1936-17, L-1922-17, L-2048-17, L-
2054-17, L-1923-17, L-1983-17, L-1985-17, L-2050-
A-1418-17T4
30
17, L-1934-17, L-2046-17, L-2071-17, L-2242-17, L-
2049-17, L-1987-17, L-1988-17, L-2060-17, L-2052-
17, L-2061-17, L-0280-17, L-3296-15, L-1620-16, L-
3340-16, L-2418-16, L-2570-16, L-2751-16, L-1619-
16, L-2108-17, L-2568-16, L-3133-16, L-2950-16, L-
1547-16, L-1618-16, L-2569-16, L-2969-16, L-2115-
17, L-2970-16, L-2419-16, L-3132-16, L-2953-16, L-
2595-17, L-2659-17, L-2598-17, L-2053-17, L-2628-
17, L-1975-17, L-2215-17, L-2594-17, L-1950-16, L-
2832-16, L-2852-16, L-2772-16, L-2831-16, L-2773-
16, L-2650-17, L-2605-17, L-2627-17, L-2610-17, L-
2609-17, L-2604-17, L-2904-17, and L-2607-17.
Anthony F. DellaPelle, John H. Buonocore, Jr., and
Peter H. Wegener argued the cause for appellants in
sixty-two consolidated matters (McKirdy, Riskin,
Olson & DellaPelle, PC and Bathgate Wegener &
Wolf, PC, attorneys; Anthony F. DellaPelle, John H.
Buonocore, Jr., L. Jeffrey Lewis, and Peter H.
Wegener, of counsel and on the briefs).
Christopher John Stracco argued the cause for
appellant Jane Williams, as Trustee of the 837 East
Avenue Trust (Day Pitney LLP, attorneys; Christopher
John Stracco, of counsel and on the brief).
George G. Frino and David C. Apy, Assistant
Attorney General, argued the cause for respondent
(DeCotiis, FitzPatrick, Cole & Giblin, LLP, Hill
Wallack, LLP, and Gurbir S. Grewal, Attorney
General, attorneys; George G. Frino, Gregory Hazley,
Jason M. Hyndman, and Stephen Eisdorfer, of counsel
and on the brief).
The opinion of the court was delivered by
FASCIALE, P.J.A.D.
A-1418-17T4
31
This appeal consists of sixty-two consolidated cases known as State v. 1
Howe Street Bay Head, LLC (Howe). During the pendency of this appeal, we
consolidated Howe with State v. Jane Williams, Trustee 837 East Avenue
Trust (Trust), totaling sixty-three consolidated cases. Defendants in Howe and
Trust (collectively defendants), who are owners of beachfront property
affected by Superstorm Sandy, appeal from multiple final judgments upholding
the Department of Environmental Protection's (DEP's) taking of permanent
easements over their properties to reduce the risk of flooding. 1
After conducting a lengthy plenary hearing, Judge Marlene Lynch Ford
found DEP did not act arbitrarily, capriciously, or unreasonably. She also
concluded that DEP's taking was not the product of fraud, bad faith, or
manifest abuse of power. She then entered the final judgments that are the
subject of this appeal.
We affirm.
1
We calendared the Howe and Trust appeals back-to-back with an individual
appeal in New Jersey Department of Environmental Protection v. Midway
Beach Condominium Ass'n (Midway); three consolidated appeals known as
State v. 3.814 Acres of Land in the Borough of Point Pleasant Beach , State v.
10.041 Acres of Land in the Borough of Point Pleasant Beach, and State v.
.808 Acres of Land in the Borough of Point Pleasant Beach (collectively
Risden's); and a pro se appeal entitled State v. Arthur Williams (A-1484-17)
(Williams). On today's date, we rendered opinions in Midway, Risden's, and
Williams.
A-1418-17T4
32
I.
Before we address defendants' arguments, 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 (App. Div.
2017), we held DEP had the authority to "condemn private property to take
perpetual easements for shore protection purposes," and that "easements that
allow for publicly funded beach protection projects can include public access
and use." In North Beach, the shore protection system at issue—the same as
here—is known as the Manasquan Inlet to Barnegat Inlet Hurricane and Storm
Damage Reduction Project (the Project). Id. at 224-25. Many of the facts in
North Beach are similar to those in this appeal, but the properties here are
protected by a "revetment." Id. at 224-26.
A revetment is a type of storm-protection structure designed to dissipate
wave energy and protect structures and people located inland. The revetment
originally dates back to the 1800s, consisting of stone boulders, sixteen-to-
eighteen-feet high and ninety-feet wide, covered with sand, dunes, and
vegetation. Beachfront property owners privately funded the revetment's
improvement, spending approximately seven-to-eight million dollars on
enhancements. Because of these expenditures, the revetment, known as the
A-1418-17T4
33
Tri-Borough revetment, is now 1.8 miles long and protects Bay Head,
Mantoloking, and Point Pleasant Beach.
Defendants contend the revetment sufficiently protects against flooding
and obviates the need for the Project. When the defendants in North Beach
filed their appeals, the judge had not yet ruled on DEP's complaints to take
easements over the properties under dispute here. Instead, the judge carved
out an exception for properties protected by the revetment, and she scheduled a
plenary hearing to determine whether these properties were already
sufficiently protected as contemplated by the Project's shore protection system.
Id. at 227 n.2.
In 2002, the Army Corps of Engineers (Army Corps) produced a detailed
feasibility study (the 2002 study), considering the costs and benefits of the
Project, which entailed a dune and berm system spanning fourteen miles along
northern Ocean County, from Berkeley Township to Point Pleasant Beach.
The dune and berm system is designed to mimic a natural beach, with sandy
coast and dunes of sand and sediment. The 2002 study evaluated potential
damages, that would have occurred with and without the Project, by
considering the severity of different storms. It categorized the storms based on
the probability of such storms occurring. For example, a two-year storm was
not considered very severe and had the probability of occurring once every two
A-1418-17T4
34
years, whereas a 100-year storm was considered much more severe and had a
one percent chance of happening every year. The 2002 study assumed the
revetment would fail in a 200-year storm.
In 2007, Congress authorized the Project, but did not appropriate funds.
Following Sandy, Congress passed the Disaster Appropriations Act of 2013
(the Sandy Act), Pub. L. No. 113-2, 127 Stat. 4, which again authorized the
Army Corps to construct the Project and provided federal funding at that time.
As part of the Project, the State and federal governments expected to share
costs for periodic renourishment—adding sand to the dunes after beach
erosion—approximately every four years.
DEP had the responsibility of acquiring the physical access to beachfront
properties necessary for the Project's construction, ensuring that it only used
federal funds for properties with public access to the beaches. On September
25, 2013, Governor Chris Christie signed Executive Order 140 (EO140), which
created the Office of Flood Hazard Risk Reduction (the Flood Office) within
DEP for the purpose of "rapid acquisition of property" to be used to construct
the Project. To proceed with this Project, the Army Corps required the
benefits-to-costs ratio should be higher than 1.0⸻benefits were greater than
costs. On July 18, 2014, DEP and the Army Corps entered into an agreement
to construct the Project.
A-1418-17T4
35
Throughout the revetment's history, beachfront homeowners voluntarily
hired contractors to "sand push"⸻move sand up the dunes to ensure that the
revetment stayed covered. These homeowners directed sand pushes up to three
times per year. This revetment protected the properties that abutted it during
Sandy. However, significant damage occurred at the street ends and where
there were gaps in the revetment.
After Sandy, these beachfront property owners hired engineer Andrew
Raichle, who opined Bay Head suffered "substantial damage to the public
infrastructure." Raichle approached DEP on behalf of these property owners,
seeking permission to rebuild, extend, and fortify the revetment. Upon
approval, the property owners spent substantial amounts of money to extend
the revetment in the southern and northern directions and repair the gaps at
street ends.
II.
Defendants generally argue that the judge's findings are not supported by
the record. The judge granted defendants a plenary hearing because they
established a prima facie showing of arbitrariness. However, defendants must
demonstrate fraud, bad faith, or manifest abuse to reverse an eminent domain
taking. The judge conducted an eight-day plenary hearing, and rendered a
A-1418-17T4
36
fifty-four-page written opinion detailing her credibility and factual findings
and conclusions of law. Our standard of review is well-settled.
We review questions of law de novo. Manalapan Realty, L.P. v. Twp.
Comm. of Manalapan, 140 N.J. 366, 378 (1995). We defer to the trial judge's
factual findings. Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J.
474, 484 (1974). We reverse such factual findings only if "'they are so
manifestly unsupported by or inconsistent with the competent, relevant and
reasonably credible evidence.'" Ibid. (quoting Fagliarone v. Township of
North Bergen, 78 N.J. Super. 154, 155 (App. Div. 1963)). But a trial judge's
"interpretation of the law and the legal consequences that flow from
established facts are not entitled to any special deference." Manalapan, 140
N.J. at 378.
The judge recognized that DEP reasonably determined the Project's berm
and dune system provided the best protection to private and public property
from coastal storm flooding, despite the Tri-Borough revetment. The judge
found DEP considered the revetment before deciding to proceed with the
Project. Although DEP authorized private homeowners to make improvements
to the revetment after Sandy, it did so with the express understanding these
improvements would merely supplement protection offered by the impending
A-1418-17T4
37
Project. The judge found that DEP reasonably concluded the Project was
beneficial and economically viable to the State.
Moreover, the judge found that the Project protected the beach seaward
of the Tri-Borough revetment, an area that was not already protected. The
Project anticipated preventing the end and gap effects. If excluded from the
Project, these gaps would impair shore protection north and south of
defendants' properties. Specifically, the judge recognized DEP reasonably
concluded that
additional protections in the area of the [revetment]
would be necessary to make the entire [P]roject more
effective, and to protect the interests of property
owners who may be damaged by end or gap effects.
In addition, the [P]roject is designed to have a
sacrificial berm that would provide additional beach
recreational opportunities, together with the many
intangible benefits, including confidence in the Jersey
Shore as a travel destination.
Experts, DEP employees, Army Corps employees, and property owners
testified. The record supports the judge's findings and conclusions.
Raichle, a coastal science and engineering expert, authored a report on
behalf of defendants, in which he conceded the revetment was designed to
protect structures and people landward of the beach and, therefore, would not
protect against beach erosion. When discussing the damage caused by Sandy
in Bay Head, Raichle stated that it was superficial⸻not structural⸺exterior
A-1418-17T4
38
damage related to base flooding. But on cross-examination, he admitted that
he did not include properties that were demolished or had significant damage
(totaling more than fifty percent of the home's value) in his damage
assessment. However, he described the damage as substantial when he
approached DEP for permission to rebuild the revetment.
Robert Young, a coastal science expert, also submitted a report on behalf
of defendants. According to Young, the Project's benefits-to-costs ratio was
only 1.2, and in the future, the cost of renourishment would be prohibitive.
Young concluded that "[e]liminating the [P]roject from the [r]evetment
[p]roperties will not endanger other property owners in the area in any
demonstrable way." He agreed that where a beach has chronic erosion, a
revetment could exacerbate the problem; but here, he opined there was no
evidence of beach erosion.
However, Robert Lowinski, a coastal engineering expert, filed reports on
behalf of DEP, rebutting the claims of Young and Raichle and comparing the
damage that would occur with and without the Project. He stated that Bay
Head experienced periods of accretion and erosion, and that a number of
factors would determine the appropriate renourishment interval. Likewise,
Thomas Herrington, a beach science and coastal engineering expert, also
prepared a report on behalf of DEP, equating what the damage would be with
A-1418-17T4
39
and without the Project for different storms. He concluded that the revetment
alone could not provide as much protection as the Project.
Herrington also disagreed with Raichle and Young that Sandy was a
500-year storm, rather he thought that it was more likely a 100-year storm. In
making this determination, Herrington used modeling, which accounts for air
pressure, wind, waves and complex physics, whereas Raichle simply
considered water measurements at Coast Guard stations. Herrington and the
Army Corps agreed that the Project was not designed to protect against a 200-
year or 500-year storm.
John Paul Woodley, an Army Corps statutory/regulatory policy matters
expert, noted that, as far as funding future renourishment, the Army Corps
would place higher priority on a project with a higher benefits-to-costs ratio.
Renourishment funding depended on the availability of federal funds. Also,
according to Woodley, the Army Corps policy provided that the Project could
be built on privately owned land so long as there was public access to t he
beach.
Keith Watson, an Army Corps project manager, prepared a report
concluding that, notwithstanding the revetment, Bay Head suffered serious
damage from Sandy because the storm "overtopped" the revetment. This was
evidenced by the significant amount of sand in the streets after Sandy. Watson
A-1418-17T4
40
concluded that the revetment should be combined with the berm and dune
system to strengthen the Project.
According to Watson, emergency funds would be available if
renourishment was necessary and the federal government did not allocate
funds. He opined that the Project had a better chance of surviving if the entire
fourteen-mile dune and berm system was implemented without gaps. The
Project anticipated covering the revetment's front with the dune and berm
system but would not affect the revetment's back side. Watson stated the
easements were necessary to secure funding because they guaranteed public
access to the beaches.
Robert Selsor, an economist and an Army Corps supervisor, filed a
report discussing the Project's economic benefits and focusing on the cost of
damages to existing structures. Selsor disagreed with Raichle's determination
that the benefits-to-costs ratio of 1.2 was based upon an expectation that the
revetment would fail.
According to Selsor, the 2002 study compared the with-and-without-the-
Project conditions for different storms and determined the probability of
resulting damage. The analysis considered the entire proposed 13.7-mile
length of the Project. The benefits-to-costs ratio was the only important factor
to the Army Corps when determining the Project's feasibility.
A-1418-17T4
41
William Dixon, DEP's Bureau of Coastal Engineering manager,
discussed how prior to Sandy, DEP sought to partner with the Army Corps
because the agency believed that doing so would provide the most cost-
effective storm protection. According to Dixon, a uniform system would
ensure that adjacent areas have maximum protection.
David Rosenblatt, assistant commissioner of DEP and director of DEP's
Flood Office, discussed the Project's history. After Sandy and EO140, DEP no
longer looked to municipalities to acquire property rights. Under the Project,
federal funding paid for 100% of many beach repairs in New Jersey, but in
northern Ocean County, the cost share was 65% federal and 35% State, with
the State paying 50% of renourishment. The State's share could be paid in
installments for thirty years. DEP did not do a separate benefits-to-costs
analysis but instead, relied on the Army Corps studies. Once DEP condemns
the privately owned beach property, it either assigns maintenance of the beach
to a local municipality or assumes responsibility for maintenance, cleaning,
and lifeguards. Rosenblatt agreed that protecting the State's interest in tourism
at the shore motivated DEP to participate in the Project. According to
Rosenblatt, DEP never considered the repaired revetment to be a stand-alone
plan, but instead, envisioned it in consonance with the Project to provide more
stability.
A-1418-17T4
42
The judge concluded that DEP established the "merits of the [P]roject
outweighed the investment." The judge found that DEP's determination was
not arbitrary, capricious, or unreasonable even if the Project was unnecessary
in part due to the revetment. The judge considered defendants' arguments that
the Project was "superfluous" to be "very compelling," but noted that
reasonable people could disagree about the best way to address flooding at the
New Jersey shore.
The judge accepted Raichle's opinion that the Tri-Borough revetment's
modifications enhanced the historic revetment's storm protection. The judge
found significant Raichle's statement that the revetment provided protection to
landward structures and infrastructure, but not the beach. The judge's finding
is supported by substantial credible evidence in the record.
III.
We reject defendants' argument that DEP's takings were arbitrary,
capricious, or unreasonable. The judge correctly found that the takings were
not arbitrary, capricious, unreasonable, or a manifest abuse of power, even
though DEP modified the Project in other areas but refused to do so in Bay
Head. The judge noted that DEP relied on reasonable expert opinions.
Defendants cite Texas East Transmission Corp. v. Wildlife Preserves,
Inc., 48 N.J. 261, 269 (1966), for the notion that a taking must be limited to
A-1418-17T4
43
what is necessary. In that case, the Court established that a judge must
consider if there are alternative options available as part of his or her
determination as to whether the taking of private property is arbitrary. Id. at
269-75.
Ordinarily where the power to condemn exists the
quantity of land to be taken as well as the location is a
matter within the discretion of the condemnor. The
exercise of that discretion will not be interfered with
by the courts in the absence of fraud, bad faith or
circumstances revealing arbitrary or capricious action.
In this connection we hold the view that when private
property is condemned the taking must be limited to
the reasonable necessities of the case, so far as the
owners of the property taken are concerned.
[Id. at 269 (citations omitted).]
The taking needs to be limited to the "reasonable necessities" of the case. Ibid.
Defendants argue that here, the taking was not a necessity because the
revetment provided sufficient protection from flooding.
But the experts disagreed, stating the revetment alone did not provide
sufficient protection to the beach or to the properties landward. Even
defendants' expert, Raichle, conceded that the revetment did not protect the
beach, but only structures behind it. Further, Dixon emphasized that New
Jersey has a policy favoring soft structures, such as the dune and berm system,
as opposed to hard ones⸺such as the revetment⸻in terms of shore protection.
He testified:
A-1418-17T4
44
It's an actual regulation and within the Rules on
Co[a]stal Zone Management for Coastal Engineering
Purposes[,] soft structures are favored and the
hierarchy of going through the rule is you have to . . .
prove that a soft structure won't work in order to
obtain a permit for a hard structure.
[(Emphasis added).]
Defendants argue that DEP followed EO140 to avail itself of federal
funding without considering the revetment's post-Sandy improvements.
According to defendants, EO140 is not sufficient to establish the Project's
necessity. Moreover, the judge made factual findings that permitted DEP to
take the easements because doing so would make the entire Project more
effective and would provide intangible benefits, such as recreational
opportunities. Defendants nevertheless argue that these reasons were
inadequate to support DEP's exercise of eminent domain.
EO140 hastened the process of acquiring the properties by permitting the
Flood Office to directly condemn the properties without participation of the
municipalities, contrary to past procedure. EO140 did not confer any
condemnation rights on DEP. Moreover, the judge found valid reasons for th e
condemnations, including the Project's stability, the viability of the New Jersey
shore as a tourist destination, and DEP's desire to gain access to maximum
federal funding for shore protection. As the judge found, DEP determined the
fourteen-mile Project was necessary after reviewing expert reports and Army
A-1418-17T4
45
Corps studies, rather than EO140. The validity of EO140 is not on appeal
here.
Moreover, the exercise of DEP's discretion will only be interfered with
upon a showing of fraud, bad faith, or arbitrary or capricious action. Wildlife
Preserves, 48 N.J. at 269. Absent that showing, the judge may not reverse a
condemnation even if defendants disagree with DEP's reason for the takings.
Here, defendants fail to establish the required standard.
Defendants contend that they are entitled to special consideration
because they privately funded the revetment's enhancements to improve shore
protection. According to defendants, they dedicated their property to public
service through the revetment's creation and maintenance. The judge
addressed this argument and determined that it was meritless, given that the
property owners themselves were the primary beneficiaries of the revetment,
rather than the public. While the judge noted that the public benefitted fro m
the revetment, she distinguished Wildlife Preserves, where private property
owners maintained the property for wildlife preservation⸻a communal
benefit. Id. at 266-67. We agree with the judge that the revetment's
maintenance provided more of a private than a public benefit, inasmuch as the
revetment protected properties that abutted it, but did not protect the beach or
landward structures.
A-1418-17T4
46
Defendants argue that DEP's decision to take their properties is not
entitled to deference because the agency did not engage in a deliberative
process, but merely took the properties pursuant to EO140 in order to qualify
for federal funding. According to defendants, the judge erred by stating that
the taking was meant to effectuate EO140 because eminent domain is a
legislative function, and an executive order cannot authorize a condemnation.
Contrary to defendants' assertions, the judge stated that EO140 "also gave
[DEP] responsibility to acquire through eminent domain property '[]vital to
[Sandy] reconstruction efforts.'" We understand the judge to mean that EO140
gave DEP⸻rather than municipalities⸺the right to acquire these properties,
despite past procedures.
Defendants argue that DEP never analyzed whether the Project's benefits
were worthwhile, instead relying on Army Corps studies and feasibility
reports.
It is true that DEP executives wanted to obtain federal funding for the
Project. We nevertheless disagree with defendants, and believe DEP had a
valid reason for the takings. Prior to Sandy, DEP was concerned with shore
protection, but was not in a position to fund the Project. Expert Rosenblatt
testified:
[U]ntil Sandy, the [Army C]orps had never gotten an
appropriation large enough to build the entire
A-1418-17T4
47
[P]roject. And, therefore, 35[%] of what the [Army
C]orps would get, [fifteen], [twenty] million dollars,
was not hard for us to meet every year. With this
[P]roject, . . . we don't have to pay . . . 35[%] up front.
. . . [T]he partnership agreement we signed with the
[Army C]orps in 2014 . . . allowed us to make
payments on the installment plan rather than paying
the 35[%] up front.
After Sandy, Congress passed the Sandy Act, which earmarked federal
funds for the Project. The fact that DEP condemned properties to effectuate
the largely federally funded Project is not indicative of fraud, bad faith, or
arbitrary or capricious action. DEP legitimately took the properties to qualify
for the federal funds that would enable greater shore protection⸺a communal
benefit.
Defendants argue that DEP's takings will prohibit homeowners from
maintaining the revetment and protecting their properties. Specifically, the
homeowners are concerned that they will no longer be permitted to perform the
sand push, ultimately resulting in erosion. They assert there is no guarantee
that DEP will properly maintain the revetment. According to defendants, their
revetment maintenance has been effective, and DEP's proposed renourishment
is less reliable.
First, defendants' contention is misplaced. At the hearing, Rosenblatt
testified, "[t]hey have the ability . . . under current permit conditions . . . to
move sand, under the new easement condition. Under the easement, . . . they
A-1418-17T4
48
would have the same ability with a permit." He noted that property owners
would typically be granted the required permit so long as they do not
"compromis[e] . . . that beach by moving that s[a]nd around unnecessarily."
As to defendants' second contention, testimony indicated that emergency
funds would be available for renourishment. Although it is true that the
property owners have maintained the revetment, the dune and berm system
offers more protection to the beaches and the landward properties. Thus,
defendants have not established that DEP's takings were arbitrary, capricious,
fraudulent, or made in bad faith.
IV.
Defendants argue that N.J.S.A. 12:3-64 and State v. Archer, 107 N.J.
Super. 77 (1969), do not permit DEP to take easements of their privately
owned properties for public use. We addressed defendants' arguments on this
issue in North Beach, 451 N.J. Super. at 230-32, 237. We reiterate that
N.J.S.A. 12:3-64 and Archer support DEP's authority to take the easements.
The judge addressed these arguments in her opinion leading to North Beach,
and determined that N.J.S.A. 12:3-64 and Archer do not prevent DEP from
taking the easements. North Beach, 451 N.J. Super. at 226-28. We rely on
North Beach and add the following.
A-1418-17T4
49
DEP has the power to condemn pursuant to the Eminent Domain Act
(EDA), N.J.S.A. 20:3-1 to -50. See, e.g., N.J.S.A. 12:3-64. The Legislature
enacted the EDA to integrate and standardize the more than 300 statutes
authorizing the exercise of eminent domain. Township of West Windsor v.
Nierenberg, 150 N.J. 111, 126 (1997). The EDA is not an enabling statute, but
rather, provides a uniform procedure for all entities with the power to condemn
to follow. Township of Hillsborough v. Robertson, 260 N.J. Super. 37, 43
(Law Div. 1992).
N.J.S.A. 12:3-64 provides:
The Department of Conservation and Economic
Development may acquire title, in fee simple, in the
name of the State, by gift, devise or purchase or by
condemnation in the manner provided in chapter one
of [the EDA] to any lands in the State, including
riparian lands, of such area and extent which, in the
discretion of the department, may be deemed
necessary and advisable. All lands so acquired shall
be subject to the jurisdiction and control of the
department.
....
Upon the department exercising the right of
condemnation and entering upon and taking land in
advance of making compensation therefor it shall
proceed to have the compensation fixed and paid to
the owner, as provided in said chapter one of the
[EDA].
Lands thus acquired shall be used for the improvement
or development of any waterway, stream, river or
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creek or any waterfront or oceanfront property or to
give access to any lands of the State.
[(Emphasis added).]
Defendants argue that N.J.S.A. 12:3-64 neither authorizes DEP to
condemn easements for storm-protection purposes nor to create public beaches
on private property. Instead, according to defendants, the statute only permits
DEP to acquire title in fee simple, rather than an easement. This court in
North Beach held that N.J.S.A. 12:3-64 expressly provides DEP with the
authority to condemn properties for shore protection and authorizes DEP to
acquire "any type of property interest," including a perpetual easement to
protect the coastline. 451 N.J. Super. at 238. Because DEP could have taken
the property in fee simple, it also had discretion to take a lesser interest, such
as an easement with a right of public access and use. Id. at 240.
Defendants argue that the public trust doctrine does not support this
court's interpretation of N.J.S.A. 12:3-64 in North Beach. In North Beach, we
cited Matthews v. Bay Head Improvement Ass'n, 95 N.J. 306, 322 (1984), for
the notion that the public trust doctrine requires public access to the shoreline .
Id. at 239-41. North Beach held that the public trust doctrine requires that the
public have access to the beach when DEP uses public funds to create a dry
sand area. Id. at 241.
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According to the public trust doctrine, the State holds "'ownership,
dominion and sovereignty' over tidally flowed lands 'in trust for the people.'"
Hackensack Riverkeeper, Inc. v. N.J. Dep't of Envtl. Prot., 443 N.J. Super.
293, 303 (App. Div. 2015) (quoting City of Long Branch v. Jui Yung Liu, 203
N.J. 464, 474 (2010)). Access to the sea encompasses "access to and use of
privately[]owned dry sand areas as reasonably necessary." Id. at 304 (quoting
Matthews, 95 N.J. at 326). We agree with the judge that the public trust
doctrine requires the public to have access to the beaches.
Defendants argue that the New Jersey Supreme Court has never
compelled a private property owner to provide public use and access to the
beach when adequate public access already exists. But here, providing and
ensuring public access to the waterfront is a condition of DEP receiving
federal funding for the Project, thus DEP must acquire the right to provide
public access to the beaches. Without this language in the easements,
defendants could eventually prevent public access to the waterfront.
Defendants dispute this court's determination in North Beach that
N.J.S.A. 12:3-64 permits the condemning authority to acquire any interest in
the property it takes. 451 N.J. Super. at 232. In North Beach, this court stated
that DEP instead derives its power to condemn from N.J.S.A. 12:3-64, and that
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statute permits DEP to acquire any interest in the property it condemns. Ibid.
In support, this court cited N.J.S.A. 20:3-20 which provides:
The title to property condemned and acquired by the
condemnor hereunder, shall be a title in fee simple,
free and discharged of all right, title, interest and liens
of all condemnees, and shall include all the right, title
and interest of each condemnee therein, provided,
however, that if the complaint or any amendment
thereof shall specify a lesser title, the lesser title so
specified shall be the title condemned and acquired.
[Id. at 233 (emphasis added).]
In North Beach, we cited Town of Kearny v. Discount City of Old Bridge,
Inc., 205 N.J. 386 (2011), for the notion that a condemning authority may
condemn a leasehold or an easement. Id. at 233.
Defendants examine the legislative history of N.J.S.A. 12:6A-1 and
conclude that the statute permits DEP to engage in shore protection, but not
condemnation. But in North Beach, this court held that DEP's shore protection
responsibilities and its condemning authority should be read in pari materia.
Id. at 235-37. Moreover, Archer, 107 N.J. Super. at 77, permitted DEP's
predecessor to condemn private property for shore protection, and as this court
explained in North Beach, that holding has never been held to be in error or
revisited by the Legislature. North Beach, 451 N.J. Super. at 237.
Defendants argue that in Archer, this court read N.J.S.A. 12:3-64
incorrectly, and they contend the issue of DEP's right to condemn private
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property for shore protection was not an issue in that case. But as we pointed
out in North Beach,
[i]n the almost fifty years since Archer was decided,
the Legislature has taken no action to amend the
statute, nor has it given any indication that this court
was mistaken in Archer. Accordingly, the Legislature
has implicitly endorsed our interpretation that . . .
DEP has broad powers to protect the New Jersey
shoreline.
[Id. at 237.]
Thus, we agree with the holding in North Beach that N.J.S.A. 12:3-64 permits
DEP to take easements on private property for shore protection, and Archer
further supports that determination.
V.
Defendants argue that DEP failed to satisfy the prelitigation
requirements in N.J.S.A. 20:3-6 inasmuch as DEP did not engage in bona fide
negotiations by failing to consider the revetment, and they contend that the
appraiser made several mistakes in conducting its appraisal. The judge
concluded that DEP engaged in bona fide negotiations, even though the parties
disagreed as to the proper value of the easements. We have no basis to disrupt
the judge's ruling that DEP engaged in bona fide negotiations, which is
supported by the record.
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The EDA requires a condemnor to engage in bona fide negotiations with
the property owner. N.J.S.A. 20:3-6. N.J.S.A. 20:3-6 encourages acquisitions
without litigation, thus saving both the condemnor and the condemnee the
expense and delay of litigation. Casino Reinvestment Dev. Auth. v. Katz, 334
N.J. Super. 473, 481 (Law Div. 2000). The complaint is dismissed if the
acquiring entity fails to comply with the prelitigation requirements. Ibid.
The statute does not define bona fide negotiations, but our Supreme
Court established that such negotiations include an offer in writing setting
forth the property interest to be acquired, the compensation to be paid, and a
reasonable disclosure of how the amount was calculated. See State by Comm'r
of Transp. v. Carroll, 123 N.J. 308, 316-17 (1991). Bona fide negotiations are
especially necessary for "minor" takings to protect unsophisticated owners
who might not be in a position to hire lawyers or appraisers. See ibid. A one-
price offer does not, by definition, violate N.J.S.A. 20:3-6 so long as the
condemnor puts forth its best offer⸻an offer for the full appraised value of the
property⸺before litigation is instituted. Id. at 318-19; Casino, 334 N.J. Super.
at 483.
The reasonableness of bona fide negotiations centers on the adequacy of
the appraisal information and whether it sufficiently explains the valuation
method for an average property owner to engage in negotiations. Carroll, 123
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N.J. at 321. A one-price offer procedure is acceptable so long as the appraisal
information is comprehensible and includes a valuation methodology. Id. at
323. Just compensation is based on the property owner's loss, not the
condemning authority's gain. Casino, 334 N.J. Super. at 484. Just
compensation is the difference between the value of the property before and
after the taking. Harvey Cedars v. Karan, 214 N.J. 384, 417 (2013).
If the negotiation process fails to settle the matter, the condemnor may
file a complaint to condemn and seek an order for the appointment of
commissioners to fix the amount of just compensation. N.J.S.A. 20:3-8.
Commissioners conduct a hearing to determine compensation. N.J.S.A. 20:3 -
12.
Defendants argue that DEP never intended to pay property owners and
did not engage in bona fide negotiations. In support, defendants point to the
following facts: Prior to the property appraisals, the Army Corps determined
that compensation would be nominal because of the Project's benefits; all
appraisers except one, who was subsequently terminated, concluded that
defendants were entitled to nominal compensation; the properties were already
protected by the revetment; the judge concluded that the revetment's protection
to defendants' properties was equal or superior to the Project's protection; and
DEP filed its condemnation complaints after the matter was already in
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litigation and did not respond to evidence that its offers were not made in good
faith.
In support of their position, defendants cite County of Morris v. Weiner,
222 N.J. Super. 560, 563 (App. Div. 1988), wherein this court determined that
the condemning authority did not engage in bona fide negotiations by offering
an amount far lower than what a bank recently appraised the property for, and
when the authority presented a "take it or leave it" approach. But that case can
be distinguished because here, defendants have not provided any other
property appraisal.
In North Beach, this court evaluated whether DEP engaged in bona fide
negotiations, and noted that the appraiser took each individual property and
balanced the Project's benefit to the property against the losses to arrive at a
bona fide offer. 451 N.J. Super. at 244. In addition, this court concluded that
defendants did not offer credible information supporting their contention that
DEP's offer was too low. Id. at 245.
We disagree with defendants that DEP did not engage in bona fide
negotiations. For one thing, the appraisers provided a description of the
properties and detailed explanations as to how they arrived at their
conclusions, satisfying bona fide negotiation requirements. See Carroll, 123
N.J. at 316-17. Also, defendants' experts arrived at similar conclusions. And
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defendants fail to provide any quantifiable data to the contrary. Even though
the properties were protected by the revetment, it was reasonable for the
appraisers to conclude the properties would be more valuable after the
condemnation because the Project overall would enhance shore protection for
the entire area. Here, similarly, the appraisers analyzed the costs and benefits
to each property, but defendants offered no contrary appraisals. The judge's
finding that DEP engaged in bona fide negotiations is supported by substantial
evidence in the record.
Affirmed.
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