Avalon and many other shore towns became the victors Wednesday, Nov. 19 as the state Appellate Court invalidated the Department of Environmental Protection’s public access requirements under the Shore Protection Program. The borough of Avalon, after seeking beach replenishment in 2007, challenged the rules in the Superior Court citing that they are vague and easily misinterpreted.
The borough of Stone Harbor, Avalon’s seven-mile island neighbor, and Cape May County, were present as friends of the court during the September appellate arguments.
The court decided that the rules set forth by the DEP are not statutorily authorized because the state Legislature has delegated general police powers to the municipalities and that power extends to municipally owned beaches. Because it is the municipality, not the DEP that owns the beach, the municipality is responsible for its management. The opinion of the court was that the public trust doctrine does not provide any basis for a DEP rule that preempts the statutory authority of municipalities to regulate municipally-owned beaches, including deciding when they shall be open to the public.
CAFRA, the court said, is also not a preempting authority over municipal land use.
As far as the amount and proximity of parking space and restrooms to beach access points, the court determined that the DEP does not have the authority to determine or regulate those standards. The Legislature, they said, is the ultimate authority in determining the projects that will receive appropriations from the Shore Protection Fund. They also noted that the parking rule was so vague that it would be invalidated due to its lack of regulatory standards.
—Claire Lowe