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NATIONAL ASSOCIATION OF HOME BUILDERS OF THE UNITED STATES
and New Jersey Builders Association, Plaintiffs, v. State of NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION
and Robert C. Shinn, Jr., Commissioner of the Department of Environmental
Protection, Defendants. No. CIV.A.98
2514 (GEB). Aug.
12, 1999. Builders
associations, on their own behalf and on behalf of their members, brought
action seeking declaratory and injunctive relief alleging that the Hudson
River Waterfront Area Rule, which requires as a condition of grant of a
waterfront development permit that owners construct and maintain, at the
owner's expense, a 30‑foot wide walkway along the entire waterfront of
the property, and allow perpendicular public access, was unconstitutional on
the ground that it constitutes a facially unconstitutional taking. On motions
of parties and intervenors for summary judgment, the District Court, Brown,
J., held that: (1) tidally flowed lands which were submerged beneath the
Hudson River until such time as they were filled in artificially constituted
"public trust property," and private owners did not have the right
to exclude public access; (2) requirement that owners construct and maintain a
public walkway and its landscaping to state standards did not constitute a
taking; (3) reasonableness factors for determining what access to and use of
privately‑ owned dry sand areas is reasonably necessary to public use
and enjoyment of public trust lands do not include individualized
determinations that requirements are roughly proportional to the potential
impacts of the development of waterfront property; but (4) there were issues
of fact, precluding summary judgment, as to reasonableness of required use of
upland property. Plaintiffs'
motion denied; defendants' and intervenors' motions granted in part and denied
in part. [1] Navigable Waters k38 270k38 Tidally
flowed lands which were submerged beneath the Hudson River until such time as
they were filled in artificially constituted "public trust property"
and were subject to the public's right to use and enjoy the property under the
public trust doctrine, even if such property was alienated to private owners,
and private owners did not have the right to exclude public access. [2] Eminent Domain k2(10) 148k2(10) Requirement
that owners of public trust lands, formerly submerged beneath the Hudson River
until they were filled in artificially, construct and maintain a public
walkway and its landscaping to standards specified in New Jersey Department of
Environmental Protection (NJDEP) regulations, as a condition of obtaining
waterfront development permits, was within the State's police power in the
area of land use regulation and did not amount to a "taking" merely
because it might incidentally impose a cost in connection with the property.
U.S.C.A. Const.Amends. 5, 14. [3] Navigable Waters k38 270k38 In
order to exercise its rights under the public trust doctrine to use filled
tidelands, the public must be given both access to and use of
privately‑owned dry sand areas, as reasonably necessary, and precisely
what is reasonably necessary depends upon an examination of what
privately‑owned land will be available and required to satisfy the
public's rights under the public trust doctrine and includes the following
factors: (1) location of the dry sand area in relation to the foreshore; (2)
extent and availability of publicly‑owned upland sand area; (3) nature
and extent of the public demand; and (4) usage of the upland sand area by the
owner. [4] Navigable Waters k38 270k38 Reasonableness
factors for determining what access to and use of privately‑ owned dry
sand areas is reasonably necessary to public use and enjoyment of public trust
lands, consisting of filled tidelands, do not include individualized
determinations that requirements are roughly proportional to the potential
impacts of the development of waterfront property, as required for dedications
or exactions of private land in connection with grant of development permit. [5] Federal Civil Procedure k2504 170Ak2504 In
action challenging constitutionality under the takings clause of the Hudson
River Waterfront Area Rule, which requires as a condition of grant of a
waterfront development permit that owners construct and maintain, at the
owner's expense, a 30‑foot wide walkway along the entire waterfront of
the property, and allow perpendicular public access, there were issues of
fact, precluding summary judgment, as to reasonableness of required use of
upland property to provide public use and enjoyment of public trust lands,
consisting of filled tidelands and constituting 88.7% of the lands required
for the walkway. N.J.S.A.
12:5‑1 et seq.; N.J.Admin.
Code title 7, § 7E‑3.48. *355
Paul H. Schneider, Giordano, Halleran & Ciesla, P.C., Lincroft, NJ, for
Plaintiffs, National Association of Home Builders of the United States and New
Jersey Home Builders Association. Peter
Verniero, Attorney General of New Jersey, Lewin Weyl, Deputy Attorney General,
Rachel Horowitz, Deputy Attorney General, Office of New Jersey Attorney
General, R.J. Hughes Justice Complex, Trenton, NJ, for Defendants, State of
New Jersey Department of Environmental Protection and Robert C. Shinn, Jr.,
Commissioner of the Department of Environmental Protection. Edward
Lloyd, Ann Alexander, Rutgers Environmental Law Clinic, Newark, NJ, for
Defendant‑Intervenors, Hudson River Walkway Conservancy, Natural
Resources Defense Council, American Littoral Society, New York/New Jersey
Baykeeper, Coalition for a Better Waterfront, Fund for a Better Waterfront,
and Friends of Weehawken Waterfront. OPINION BROWN,
District Judge. I.
Introduction There
are three motions in the above captioned matter presently before the
Court for consideration: 1) Plaintiffs, National Association of Home Builders of the
*356 United States and New Jersey Home Builders Association's (hereinafter
"Plaintiffs"), Motion for Summary Judgment;
2) Defendants, State of New Jersey Department of Environmental
Protection and Robert C. Shinn, Jr., Commissioner of the Department of
Environmental Protection's (hereinafter "Defendants"),
Cross Motion for Summary Judgment; and 3) Defendant Intervenors,
Hudson River Walkway Conservancy, Natural Resources Defense Council, American
Littoral Society, New York/New Jersey Baykeeper, Coalition for a Better
Waterfront, Fund for a Better Waterfront, and Friends of Weehawken
Waterfront's (hereinafter "Defendant Intervenors"),
Cross Motion for Summary Judgment.
For the reasons set forth herein, Plaintiffs' motion for summary
judgment is denied. Furthermore,
Defendants' cross motion for summary judgment is granted in part and
denied in part. Similarly,
Defendant Intervenors' cross motion for summary judgment is
granted in part and denied in part. II.
Background and Procedural History Plaintiffs,
National Association of Home Builders of the United States and New Jersey Home
Builders Association, are organizations representing the "shelter
industry" on both the state and national level.
See Brief on Behalf of Plaintiffs National Association of Home Builders
of the United States and New Jersey Builders Association in Support of Motion
for Summary Judgment (hereinafter "Pl. Motion") at pp. 89. More specific to this matter, certain individuals in
Plaintiffs' organizations own property in the Hudson River Waterfront Area,
which measures approximately 17.4 miles along the Hudson River between the
George Washington Bridge in Bergen County and the Bayonne Bridge in Hudson
County and includes the municipalities of Bayonne, Jersey City, Hoboken,
Weehawken, West New York, Guttenberg, North Bergen, Edgewater, and Fort Lee.
Id. at p. 4; February 14, 1999
Affidavit of Larry Waldman (hereinafter "Aff. of Larry Waldman") at
¶ 8. By way of regulation, development along the Hudson River Waterfront Area
is subject to the Hudson River Waterfront Area Rule, N.J.A.C. 7:7E‑3.48
(hereinafter "Rule"), which was promulgated pursuant to New Jersey's
Waterfront Development Law, N.J.S.A. 12:5‑1 et seq.
See Pl. Motion at pp. 4‑5. Plaintiffs
challenge the Rule on their own behalf and on behalf of their members on the
ground that it constitutes a facially unconstitutional taking under the Fifth
Amendment of the United States Constitution made applicable to the states
through the Fourteenth Amendment. Id.
at pp. 4, 8. Specifically, Plaintiffs allege that the Rule is unconstitutional
because it requires all owners of property within the Hudson River Waterfront
Area desiring a New Jersey Department of Environmental Protection (hereinafter
"NJDEP") waterfront development permit to, without compensation:
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 Walkway;
and 3) allow perpendicular public access to the Walkway.
Id. The Rule was promulgated in 1988 and contains detailed criteria and
specifications for the Walkway, including dimensions, construction materials,
landscaping, and lighting. See
Brief in Opposition to Plaintiffs' Motion for Summary Judgment and in Support
of Defendant Intervenors' Cross‑Motion for Summary Judgment (hereinafter
"Def.‑Int. Cross‑Motion and Opp.") at p. 2. Since the
Rule's promulgation in 1988, approximately ten miles of the Walkway have been
developed or permitted for development, with an additional five miles to be
developed when currently existing uses change or cease.
Id. at pp. 6‑7. Ten
years after the Rule's promulgation, on or about May 29, 1998, Plaintiffs
filed the instant action, seeking declaratory and injunctive relief alleging
that the Rule was unconstitutional.
See Brief of Defendants *357 State of New Jersey Department of Environmental Protection and
Robert C. Shinn, Jr., Commissioner, in Support of Motion to Dismiss or for
Abstention or for Summary Judgment in Favor of Defendants, and in Opposition
to Plaintiffs' Motion for Summary Judgment (hereinafter "Def.
Cross‑Motion and Opp.") at p. 4. On or about February 16, 1999,
Hudson River Walkway Conservancy, Natural Resources Defense Council, American
Littoral Society, New York/New Jersey Baykeeper, Coalition for a Better
Waterfront, Fund for a Better Waterfront, and Friends of Weehawken Waterfront
were permitted to intervene in the defense of the action.
Id. The Plaintiffs' motion for summary judgment and Defendant's and
Defendant‑Intervenors' cross‑motions followed. III.
Discussion A.
Summary Judgment Standard Summary
judgment may be granted only if there is no genuine issue as to any material
fact and the moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56; see
Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265
(1986). The burden of showing that no genuine issue of material
fact exists rests initially on the moving party and this "burden ... may
be discharged by 'showing' ... that there is an absence of evidence to support
the nonmoving party's case." Celotex
Corp., 477 U.S. at 317, 106 S.Ct. 2548.
Once a properly supported motion for summary judgment is made, the
burden shifts to the nonmoving party to go beyond the pleadings and "set
forth specific facts showing that there is a genuine issue for trial."
Fed.R.Civ.P. 56(e). There
is no genuine issue for trial unless the nonmoving party can demonstrate that
there is sufficient evidence favoring the nonmoving party so that a reasonable
jury could return a verdict in that party's favor.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91
L.Ed.2d 202 (1986). In this
regard, the nonmoving party receives the benefit of all reasonable doubts and
any inferences drawn from the underlying facts.
See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.
574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). However, the role of the court at this stage is not
"to weigh the evidence and determine the truth of the matter, but to
determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249, 106 S.Ct. 2505. B.
Pending Summary Judgment Motions While
the present summary judgment motions delve into various procedural arguments,
including arguments based on the Eleventh Amendment, statute of limitations,
and numerous abstention and justiciability doctrines, at the heart of the
present matter is whether any of the physical characteristics of the property
at issue support Plaintiffs' taking challenge under the Fifth and Fourteenth
Amendments of the United States Constitution.
See U.S. Const. Amend. V
(requiring "just compensation" when "private property be taken
for public use"). In
this regard, depending upon how the property is grouped, it appears that there
are two or three categories of property which must be examined. First, there is that large portion of the property at
issue which was submerged under the Hudson River, was artificially filled in,
and upon which the Walkway has been built or will be built.
Second, there is a much smaller portion of private property that was
not submerged under the Hudson River, but upon which the Walkway has been
built or will be built. Finally,
there is that portion of private property upon which access to the Walkway has
been built or will be built. The
first category of property enumerated above shall be referred to as
"public trust property" for the reasons to be discussed herein.
The latter two categories of property enumerated above shall be
referred to as "non‑public trust property" for the reasons to
be discussed herein. [1]
Initially, the first category of property, which constitutes 88.7% of the
property at issue in this dispute, see Aff. of
*358 Larry Waldman at ¶ 8 (noting that 88.7% of the shoreline between the
George Washington Bridge and the Bayonne Bridge is artificially filled land
that was once submerged and that 96 % of this land is subject to State
tidelands grants), shall be referred to as "public trust property"
because this land was submerged beneath the Hudson River until such time as it
was filled in artificially. Id.
This specific and very important characteristic of the first category of the
property at issue is not disputed by the parties.
See Def. Cross‑Motion and Opp. at p. 32 (noting that "the
lands affected by the Hudson River walkway requirement are filled tidelands
and public trust lands"); Brief
of Plaintiffs National Association of Home Builders of the United States and
New Jersey Builders Association in Response to Cross‑Motions for Summary
Judgment (hereinafter "Pl. Response") at p. 14 (noting that
"the Rule is applicable in part to filled land subject to limited rights
of access under the public trust doctrine").
It is clear that title to such "public trust property" is
subject to the public's right to use and enjoy the property, even if such
property is alienated to private owners.
Neither side disputes this as well.
See Def.‑Int. Cross‑Motion and Opp. at pp. 20‑21
(noting that "[w]here tidally flowed lands are alienated to private
owners ... the Court has held that those lands remain 'impliedly impressed
with certain obligations on the grantee to use the conveyed lands only
consistently with the public rights therein.' ") (citation omitted);
Pl. Response at p. 3 (noting that "Plaintiffs do not contest that
State law establishes a right of public access to lands flowed by the tides
for purposes of navigation, fishing, bathing, swimming and other
activities.") (citing Borough of Neptune City v. Borough
Avon‑By‑The‑Sea, 61 N.J. 296, 294 A.2d 47 (1972)).
This right of the public to use and enjoy such "public trust
lands" does not disappear simply because the land that was once submerged
is filled in. See Matthews
v. Bay Head Improvement Ass'n, 95 N.J. 306, 317, 471 A.2d 355 (1984) (noting
that "[t]he seashore was not private property, but 'subject to the same
law as the sea itself, and the sand or ground beneath it.' ") (citation
omitted), cert. denied, 469 U.S. 821, 105 S.Ct. 93, 83 L.Ed.2d 39 (1984).
Therefore, with respect to the 88.7 % of the property at issue that was
once submerged beneath the Hudson River, as correctly noted by the
Defendant‑Intervenors, "the public already owns rights in the land
the Walkway is built on." See Reply Brief in Opposition to Plaintiffs'
Motion for Summary Judgment and in Support of Defendant Intervenors'
Cross‑Motion for Summary Judgment (hereinafter "Def.‑ Int.
Reply") at p. 2. Therefore, Plaintiffs do not have the right to exclude
public access to this portion of the property.
Thus, with respect to 88.7 % of the property at issue, i.e. the
"public trust" portion of the property, Plaintiffs' motion is denied
and the cross‑motions of Defendants and Defendant‑ Intervenors are
granted because Plaintiffs' bundle of rights is limited by the public's right
to use and enjoy this portion of the property under the public trust doctrine.
[FN1] FN1. Moreover, the Rule's requirement that individuals grant the
State a conservation easement for the "public trust property" upon
which the Walkway is constructed merely memorializes the State's role in
protecting the public's right to use and enjoy the property under the public
trust doctrine. Therefore,
Plaintiffs' argument that the conservation easement somehow demonstrates that
the property at issue was not public trust property within the State's control
is without merit. [2][3]
The latter two categories of property, apparently constituting 11.3 % of the
property at issue, shall be referred to as "non‑ public trust
property" because these two categories of property were not submerged
beneath the Hudson River. Specifically, it appears that this portion of the
property at issue either has small pieces of the Walkway, or access to the
Walkway, built upon it. See
Def.‑Int. Reply at p. 14 (noting that the second of two issues remaining
for the Court to decide, given that the public trust doctrine governs
*359 a large portion of the land at issue, is "whether the state
acted rationally in determining that access across the perpendicular paths and
scattered small portions of the Walkway constructed on uplands is 'reasonably
necessary' to protect that public's right of access to the remaining 88.7
percent of the Walkway that is situated on tidelands").
[FN2] Plaintiffs' taking
claims with respect to this small portion of the property at issue are
governed by the reasonableness test enunciated in Matthews.
See Matthews v. Bay Head Improvement Ass'n, 95 N.J. 306, 326, 471 A.2d
355 (1984) (holding that in order to exercise its rights under the public
trust doctrine "the public must be given both access to and use of
privately‑owned dry sand areas as reasonably necessary"), cert.
denied, 469 U.S. 821, 105 S.Ct. 93, 83 L.Ed.2d 39 (1984).
Precisely what is reasonably necessary depends upon an examination of
what privately‑owned land will be available and required to satisfy the
public's rights under the public trust doctrine and includes the following
factors: 1) location of the dry
sand area in relation to the foreshore; 2)
extent and availability of publicly‑owned upland sand area;
3) nature and extent of the public demand;
and 4) usage of the upland sand area by the owner.
Id. FN2. According to Defendant‑Intervenors, the first of
the two issues remaining for the Court to decide, given that the public trust
doctrine governs a large portion of the property at issue, is "whether it
constitutes an uncompensated taking to require [Plaintiffs] to construct and
maintain the Walkway and its landscaping to facilitate the public's enjoyment
of its public trust right." See
Def.‑Int. Reply at pp. 13‑ 14.
In this regard, Plaintiffs assert that the public trust doctrine does
not extend to the State's requirement that Plaintiffs, and others, construct
and maintain a walkway on the "public trust property" along the
Hudson River. See Pl.
Response at p. 3. However, such requirements are well within the State's
police power in the area of land use regulation. See, e.g. Ehrlich v. City of
Culver City, 12 Cal.4th 854, 50 Cal.Rptr.2d 242, 911 P.2d 429, 450 (1996)
(holding that "the requirement to provide art or a cash equivalent is
more akin to traditional land use regulations imposing minimal building
setbacks, parking and lighting conditions, landscaping requirements, and other
design conditions such as color schemes, building materials and architectural
amenities. Such ...
conditions have long been held to be valid exercises of the city's traditional
police power, and do not amount to a taking merely because they might
incidentally ... impose a cost in connection with the property."), cert.
denied, 519 U.S. 929, 117 S.Ct. 299, 136 L.Ed.2d 218 (1996).
The Walkway's design and landscaping requirements are well within the
State's land use police power. Thus,
Plaintiffs' argument in this regard is without merit. [4] With respect to
this reasonableness test, Defendants and Defendant‑ Intervenors argue
that "plaintiffs offer no credible basis to challenge the state's
determination that the limited provisions for public access across uplands
established by the Walkway regulations‑‑20 foot perpendicular
access paths and a continuous design for the Walkway that crosses over small
areas of upland property‑‑are 'reasonably necessary' to protect
the public's right to access the tidelands."
See Def.‑Int. Reply at p. 15.
Plaintiffs counter that "[t]he Matthews decision makes abundantly
clear that State law does not permit NJDEP to enforce the Rule without an
individualized determination that the Walkway requirements are roughly
proportional to the potential impacts of the development of waterfront
property." See Pl.
Response at p. 5. Specifically, in this regard, Plaintiffs assert that
Matthews requires " 'individualized determinations' ... in connection
with assertions of a right of public access to private lands under the public
trust doctrine." Id. at p.
6. Matthews, however, simply does not stand for the proposition that
"individualized determinations," as are contemplated by the holding
in Dolan v. City of Tigard,, 512 U.S. 374, 114 S.Ct. 2309, 129 L.Ed.2d 304
(1994) for dedications or exactions of private land, are a part of the
reasonableness test. See
Matthews, 95 N.J. at 322, 471 A.2d 355 (noting and following the holding in
Borough of Neptune City v. Borough of Avon‑By‑The‑Sea, 61
N.J. 296, 294 A.2d 47 (1972) which did not rely "on the legal theory of
dedication .... Instead, the Court depended
*360 upon the public trust doctrine, impliedly holding that full enjoyment
of the foreshore necessitated some use of the upper sand, so that the latter
came under the umbrella of the public trust.") (emphasis added).
See also Van Ness v. Borough of Deal, 78 N.J. 174, 179‑80, 393
A.2d 571 (1978) (holding that the Borough of Deal's dedication of a portion of
a beach for use by its residents only was "immaterial" given the
public trust doctrine's requirement that the public be afforded the right to
enjoy all dry sand beaches owned by a municipality). Thus, the reasonableness
factors to be considered under the Matthews test are very clear and do not
include "individualized determinations," as are contemplated by the
holding in Dolan v. City of Tigard, 512 U.S. 374, 114 S.Ct. 2309, 129 L.Ed.2d
304 (1994). [5] Given these
factors and the record before the Court at this juncture, reasonableness under
Matthews with respect to the property at issue which either has small pieces
of the Walkway, or access to the Walkway, built upon it simply cannot be
determined. Specifically,
the record is not clear as to the exact amount of private property at issue
that is utilized for access to the Walkway nor is the record clear as to that
portion that is utilized for the Walkway itself.
All that is somewhat clear from the record is that this property
constitutes approximately 11.3 % of the property at issue.
See Aff. of Larry Waldman at ¶ 8 (noting that 88.7 % of the shoreline
between the George Washington Bridge and the Bayonne Bridge is artificially
filled land that was once submerged and that 96 % of this land is subject to
State tidelands grants). Further, the record is not clear as to how many access
ways exist and/or are planned and their location in relation to the Walkway on
the private property at issue. Finally,
the record is not clear as to nature and extent of the public demand and/or
the usage of the upland areas by private owners.
Thus, the factual record simply does not exist upon which a
determination of reasonableness may be made under Matthews. Moreover, even if
the factual record were clearer, numerous fact issues would appear to abound
in the required reasonableness determination that would preclude summary
judgment. Therefore, with
respect to the 11.3 % of the property at issue, i.e. the
"non‑public trust" portion of the property, Plaintiffs' motion
for summary judgment is also denied.
Further, Defendants' and Defendant‑ Intervenors'
cross‑motions are denied with respect to the "non‑public
trust" portion of the property at issue. IV. Conclusion For the foregoing
reasons, Plaintiffs' motion for summary judgment is denied. Furthermore, Defendants' and Defendant‑Intervenors'
cross‑motions for summary judgment are granted with respect to the
"public trust" portion of the property at issue and denied with
respect to the "non‑public trust" portion of the property at
issue. An appropriate form
of Order is filed herewith. ORDER This matter having
been brought before the Court on the motion of Plaintiffs, National
Association of Home Builders of the United States and New Jersey Home Builders
Association, for summary judgment, and upon the cross motions of Defendants,
State of New Jersey Department of Environmental Protection and Robert C.
Shinn, Jr., Commissioner of the Department of Environmental Protection and
Defendant Intervenors, Hudson River Walkway Conservancy, Natural Resources
Defense Council, American Littoral Society, New York/New Jersey Baykeeper,
Coalition for a Better Waterfront, Fund for a Better Waterfront, and Friends
of Weehawken Waterfront for summary judgment;
the Court having reviewed the moving papers and having heard oral
argument on June 7, 1999; for the
reasons set forth in the Memorandum Opinion filed in the above‑captioned
action on this same date; and
good cause having been shown; IT IS on this 12th day
of August, 1999; *361 ORDERED that Plaintiffs' motion for summary judgment be and
hereby is DENIED; and IT IS FURTHER ORDERED
that Defendants' cross‑motion for summary judgment be and hereby is
GRANTED IN PART with respect to the "public trust" portion of the
property at issue and DENIED IN PART with respect to the
"non‑public trust" portion of the property at issue;
and IT IS FURTHER ORDERED
that Defendant Intervenors' cross‑motion for summary judgment be and
hereby is GRANTED IN PART with respect to the "public trust" portion
of the property at issue and DENIED IN PART with respect to the "non
public trust" portion of the property at issue. END OF DOCUMENT
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