BY LORI ANNE OLIWA
Correspondent
Public fallout continues over new rules proposed by the state Department of Environmental Protection (DEP) to regulate public access to New Jersey’s waterfront.
The new Public Trust Rights Rule will apply to both commercial and residential properties along the Raritan and Sandy Hook bays as well as the Atlantic Ocean.
According to the DEP Web site, the state agency is seeking to replace the existing rule pertaining to public access to the waterfront.
First issued Nov. 6, 2006, the proposed rule drew a standing-room-only crowd of concerned residents to the Monmouth Beach Cultural Center recently for a panel discussion.
The public forum July 17 was sponsored by P.J. Peterson Realty in Fair Haven.
Cynthia Peterson, a principal in the firm, said the forum was being held to educate and inform those who own land adjacent to inland tidal waters and oceanfront property about what the “state is planning to do regarding public access through their property.”
The forum featured three speakers: Edward Eastman, principal in the Freehold law firm of Lomurro, Davison, Eastman & Munoz and director of the N.J. Land Title Association; Matthew Cohen, principal and senior examiner of the Two Rivers Title Co. in Little Silver; and Thomas P. Santry Jr., president of Thomas P. Santry, PA, Rumson.
Santry replaced Peter English, a specialist in the areas of bulk heading and permitting issues with the N.J. Attorney General’s Office, who could not attend the meeting due to a schedule conflict.
The DEP did not send a representative to the forum.
Public comment on the proposed regulation closed Jan. 4, and an agency spokeswoman said the DEP expects to issue a final version of the new rule after the summer.
“We hope to adopt the proposal in the fall,” said Karen Hershey Tuesday. “We would like to do it before November.”
The DEP’s rationale behind the new guidelines is explained on the agency’s Web site, www.state.nj.us/dep, under public access, according to Hershey.
Hershey added that the DEP does not plan more public hearings, however, concerns made public at previous hearings will be addressed, she said.
“We are working on responding to the communications we have received,” Hershey said.
As a title specialist, Cohen tried to put the general concept of the DEP rules into context for the audience.
“The basic concept is that a landowner, even on the oceanfront, might own the land, but does not have exclusive right to it. The public also has rights,” Cohen said.
He cited the Public Trust Doctrine, which provides that the state owns the ocean and rivers.
“Private property owners’ rights are limited,” Cohen stated, “and the government can choose to change the lines.”
From a historical perspective, the Public Trust Doctrine was adapted from English Common Law based on the premise that the king owned the water.
Once individual states in the United States started applying the law, private landowners’ rights were limited based on the belief that the state owned the waterways, according to Cohen.
According to the DEP Web site, the proposed new rule is necessary due to “the constant development pressures threatening to reduce public access.”
The new rule would protect the waters by discouraging or prohibiting development “that adversely affects them and limits public access, with limited exceptions.”
The new Public Trust Rights Rule contains standards for all coastal development as well as specific standards for municipalities participating in the Shore Protection Program.
Under the new rule, any development on or adjacent to tidal waterways and their shores would be required to provide on-site, permanent and unobstructed access to the tidal waterways and their shores at all times, including visual and physical access, with limited exceptions.
The public access portion of the site would need to be permanently dedicated for public use through the recording of a DEP-approved conservation restriction maintaining the publicly dedicated area in perpetuity.
There are also requirements for signage, parking and barrier-free access.
The new rule spells out additional standards for municipalities participating in the Shore Protection and Green Acres Funding programs, including linear and perpendicular access to tidal waterways and their shores, the frequency of perpendicular access and restroom and parking requirements.
Eastman, an attorney specializing in riparian rights, explained that the new regulations are pending approval by the DEP and are not laws that are passed by the Legislature.
“The new regulation is a formulation of policy, and we don’t know exactly what the DEP will decide,” Eastman said.
He explained that the Public Trust Doctrine has changed over the years and the courts have been involved in land use issues, citing two recent court cases.
“In one case, the court decided that the public had rights of access to the wet sand and dry sand areas of the ocean,” Eastman said.
The second case actually expanded the public’s right of access even more, according to Eastman.
“That case concluded that the public has not only the right of reaching the beach, bays and tidal waters, but also the right of use, enjoyment and recreating. The DEP has declared in their new regulations that all waterways, both the oceans and bays, should be accessible along with the areas adjacent to the water,” he said.
Santry, a land surveyor specializing in DEP applications along with licensing for tide grants, said at the present time the proposed regulations only apply to Raritan Bay, Sandy Hook Bay, the Atlantic Ocean and the Delaware Bay.
Several members of the public asked how the regulation would be enforced.
“Enforcement will be on a case-by-case basis,” Eastman said, adding, “If a person comes to the DEP for a permit to build, the approval will be conditional upon the property owner recognizing that the Public Trust Doctrine applies to their property. The DEP can require that a stipulation for public access be included in the deed.”
According to Eastman, the DEP is claiming that the public has a right to cross privately-owned property to gain access to the water and that there should be proper entrances constructed, like ramps and walkways, for such access.
Under the proposed regulation, restrooms every quarter-mile would be mandated, along with signs announcing access and no limitations or restrictions on access time.
After Eastman’s clarifications, several residents expressed anger and outrage and had far-reaching concerns involving issues of liability, decreasing property values, safety, right to privacy and individual rights.
One owner of residential waterfront property wanted to know if she would be responsible if someone got hurt on her property.
Eastman responded that the owner would not be liable.
Another resident asked if the rule would be retroactive. Both Santry and Eastman responded that it would not be.
A woman with young children expressed concerns over her family’s safety.
“I have young children, so how can I guarantee their safety if all types of people have access to my property?”
Elected officials were among those who expressed shock and dismay.
Maria Fernandes, a Sea Bright councilwoman, demanded, “Who gave the DEP authority to take our rights away?”
Eastman responded that the DEP is operating from the premise that the residents never owned the waterfront.
“The owners had the luxury of use at public expense,” Eastman said, quoting the DEP.
“This seems like an appropriate issue for the Legislature,” Eastman said. “My sense is that the DEP will not enforce the regulations until an owner actually comes to them for a permit.”
Cohen said that some of the regulations have exceptions built into them, “which the public will probably challenge.”
While the deadline for public comment expired Jan. 4, members of the panel encouraged those opposed to the regulations to file complaints and write letters to their elected officials.
“It is not too late,” stated Eastman.
Christine Varno contributed to this story