TOWNSHIP OF LONG BEACH VS. LISA A. TOMASI, LYDIA ZINZI AND JEAN VELTEN (L-3033-16, L-3034-16 AND L-3035-16, OCEAN COUNTY AND STATEWIDE) (CONSOLIDATED) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NOS. A-0644-17T4
A-0645-17T4
A-0646-17T4
TOWNSHIP OF LONG BEACH,
a Municipal Corporation of
the State of New Jersey,
Plaintiff-Respondent,
v.
LISA A. TOMASI, Qualified
Personal Residence Trust, Paul
M. Tomasi as Trustee, LYDIA
ZINZI, and JEAN VELTEN,
Defendants-Appellants,
and
MINKE FAMILY TRUST,
Defendant-Respondent,
and
TOWNSHIP OF LONG BEACH,
Defendant.
______________________________
Argued November 7, 2018 – Decided December 20, 2018
Before Judges Yannotti and Gilson.
On appeal from Superior Court of New Jersey, Law
Division, Ocean County, Docket Nos. L-3033-16, L-
3034-16 and L-3035-16.
Kevin J. Coakley argued the cause for appellants
(Connell Foley LLP, attorneys; Kevin J. Coakley and
Agnes Antonian, of counsel and on the briefs; Christina
Sartorio, on the briefs).
Paul V. Fernicola argued the cause for respondent
Township of Long Beach (Paul V. Fernicola &
Associates, LLC, attorneys; Paul V. Fernicola and
Robert E. Moore, on the brief).
McKirdy, Riskin, Olson & DellaPelle, PC, attorneys for
respondent Minke Family Trust (John H. Buonocore
Jr., of counsel and on the brief).
PER CURIAM
In connection with a federally-funded project to protect sections of the
New Jersey shoreline, the Township of Long Beach (Township) condemned a
ten-foot-wide strip of land along defendants' properties to provide pedestrian
public access to the beach and Atlantic Ocean. Defendants appeal from
September 29, 2017 orders granting judgment to the Township and confirming
its authority to acquire the easements under the Township's eminent domain
authority. Defendants argue that the Township acted without a public purpose
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because it sought the easements to comply with a federal regulation requiring
public access every half mile to beaches protected or replenished with federal
funds. We disagree with defendants' position and affirm because providing
public access to obtain federal funds for a shore protection project is a legitimate
public purpose and use.
I
The Township is a New Jersey municipality located on Long Beach Island,
which is a barrier island stretching approximately eighteen miles along the
Atlantic Ocean. Defendants own three separate single-family residences located
in the Loveladies section of the Township. Defendants' three properties,
together with a fourth property, are located between Long Beach Boulevard and
the beach. Thus, the four properties are located one next to another , along land
that runs east from the Boulevard to the beach. The four properties are
designated as lots 1, 2, 3, and 4 on Block 20.107 of the Township's tax map.
Defendants own lots 1, 2, and 3. Lot 4 is owned by the Minke Family Trust
(Minke). Lot 1 fronts on Long Beach Boulevard, lot 2 is east of lot 1, lot 3 is
east of lot 2, and lot 4 is east of lot 3 and is beachfront property.
Over the past several decades, the federal government has assisted New
Jersey in protecting coastal communities from the impact of storms and beach
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erosion. In the aftermath of Superstorm Sandy, Congress passed the Disaster
Relief Appropriations Act, 2013 (Sandy Act), Pub. L. No. 113-2, 127 Stat. 4.
The Sandy Act authorizes the Army Corps of Engineers (Army Corps) to
construct beach replenishment and dune construction projects to protect the New
Jersey shoreline. The Sandy Act also provides that the federal government will
fund one hundred percent of the costs of some of the projects.
The Township was part of an ongoing shoreline protection project
undertaken by the New Jersey Department of Environmental Protection
(NJDEP) and Army Corps. The Army Corps' engineering regulations condition
its participation in such projects on the "provision of reasonable public access
rights-of-way" to the beach. U.S. Army Corps of Engineers, ER 1105-2-100,
Planning Guidance Notebook 3-20 (2000). An appendix to those regulations
provides: "Reasonable access is access approximately every one-half mile or
less." Id. at app. E-134. An NJDEP regulation (originally N.J.A.C. 7:7E-8.11,
but recodified in 2015 as N.J.A.C. 7:7-16.9) provides that "access shall be
provided in accordance with the [Army Corps' Planning Guidance Notebook]."
N.J.A.C. 7:7-16.9(p).
The Township did not have public beach access every half mile, and thus
had to obtain public access easements in several locations. To help locate those
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easements, the Township retained Frank J. Little Jr., P.E., P.P., to perform
planning and surveying. Little prepared several maps and proposed various
easements over several years. In August 2014, Little issued an updated map
moving one of the proposed public access easements to Block 20.107, where
defendants' properties are located. At that time, Block 20.107 already had an
existing private beach access easement from Long Beach Boulevard that crossed
defendants' three properties and Minke's property.
On September 12, 2014, the Township passed on first reading Ordinance
14-32 (Ordinance), which authorized the Township to acquire through eminent
domain four public beach access easements, including an easement on Block
20.107. On September 26, 2014, the Township adopted the Ordinance. The
Ordinance stated that the Township was acting to "undertake a beach
replenishment, maintenance and dune construction project[.]" The Ordinance
also recognized that the Army Corps requires public access points every one-
half mile to allow "the general public . . . access onto, over, and through said
privately-owned real property for the purpose of access to any [Army] Corps-
engineered beaches or other flood hazard risk reduction measures[.]"
Furthermore, the Ordinance explained that the public access points served a
public use by protecting the health, safety, and welfare of the citizens, protecting
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public infrastructure, mitigating future storm damage and public recover y
expenditures, and protecting natural resources.
Defendants and Minke filed separate actions challenging the Township's
Ordinance. Minke filed an action in lieu of a prerogative writ challenging the
Ordinance. The trial court granted summary judgment in favor of the Township.
Thereafter, the Township filed a condemnation complaint against Minke seeking
to acquire by eminent domain a public-use easement on Minke's property. The
trial court granted judgment in favor of the Township. Minke appealed and we
affirmed both the order granting summary judgment in the prerogative writ
action and the judgment in the condemnation action. Minke Family Tr. v. Twp.
of Long Beach, Nos. A-2660-15 and A-4036-15 (App. Div. Aug. 20, 2018).
In November 2014, defendants filed a complaint in the United States
District Court for the District of New Jersey challenging the Township's
adoption of the Ordinance and the Army Corps' ability to regulate coastal
waterways. While the parties have not informed us of the status of that federal
action, it is apparently still pending.
After unsuccessfully attempting to negotiate the purchase of the
easements from defendants, in November 2016, the Township brought
condemnation actions against each of the defendants and sought orders to show
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cause why the condemnations should not be approved. See R. 4:73-1 (allowing
an action in condemnation to be addressed in a summary manner).
In July 2017, the trial court heard oral argument on the condemnation
orders to show cause. Defendants argued that the Township did not act for a
public purpose when it sought the easements to secure federal funding for the
beach protection and replenishment project. The trial court rejected that
argument and found that the Township had acted with an appropriate public
purpose. On September 29, 2017, the trial court entered judgments confirming
that the Township duly exercised its power of eminent domain to acquire
easements on defendants' properties for public use. The trial court also
appointed three commissioners to establish the compensation due to defendants
for the public taking.
Each of the defendants separately appealed the condemnation judgments.
We consolidated the three appeals. Defendants also sought a stay of the
construction of the pedestrian walkway on the easements. We denied the stay,
but the Supreme Court granted the stay pending the disposition of this appeal.
II
On appeal, defendants make two arguments. They contend that the trial
court erred because (1) the Township has not and cannot establish a necessity
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for the condemnation of the easement on portions of their properties; and (2) the
Township failed to establish a proper public purpose for the easements on their
properties. These two arguments are closely related. In their first argument,
defendants contend that the Township could not condemn the easements under
the Public Trust Doctrine because there already was reasonable beach access.
In their second argument, defendants assert that the Township acted without
proper public purpose because it sought the easements to get federal funding.
In both arguments, defendants are challenging the Township's authority to
acquire the easements though eminent domain. "Eminent domain is the power
of the State to take private property for public use . . . . It is a right founded on
the law of necessity which is inherent in sovereignty and essential to the
existence of government[.]" Twp. of W. Orange v. 769 Assocs., L.L.C., 172
N.J. 564, 571 (2002) (alternations in original) (quoting State v. Lanza, 27 N.J.
516, 529 (1958)). Our State Constitution gives the State the right to take private
property for public use, but the State must pay "just compensation." N.J. Const.
art. I, ¶ 20.
Our Constitution also allows the Legislature to delegate the power of
eminent domain to state agencies or political subdivisions. N.J. Const. art. IV,
§ 6, ¶ 3. The Legislature has delegated to municipalities the right to "condemn,
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or otherwise acquire any real estate or right or interest therein, useful or
necessary for the making of such improvement, located within or without the
municipality[.]" N.J.S.A. 40:56-7. Moreover, the Legislature has given
municipalities the authority to undertake improvements for shore protection.
N.J.S.A. 40:56-1. In that regard, N.J.S.A. 40:56-1 states, in relevant part,
Any municipality may undertake any of the following
works as a local improvement[:]
....
g. The construction, reconstruction, improvement,
reimprovement or relocation of a public walk or
driveway on any beach, or along the ocean or any river
or other waterway.
h. The improvement or reimprovement of any beach
or water front, and the providing of suitable protection
to prevent damage to lands or property by the ocean or
other waters, including the filling in and grading
necessary for the protection of such improvements.
[N.J.S.A. 40:56-1; see also N.J.S.A. 40:68-27 (allowing
municipalities bordering tidal waters to create and
establish beach erosion control districts); N.J.S.A. App.
A:9-51.5 (giving municipalities the authority to
construct and repair protective barriers bordering the
Atlantic Ocean and Delaware Bay).]
Courts use a limited and deferential standard when reviewing a
municipality's decision to use its eminent domain power. 769 Assocs., 172 N.J.
at 571-72. "[A] reviewing court will not upset a municipality's decision to use
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its eminent domain power 'in the absence of an affirmative showing of fraud,
bad faith or manifest abuse.'" Id. at 571 (quoting City of Trenton v. Lenzner, 16
N.J. 465, 473 (1954)). The power of eminent domain is, however, subject to
several constitutional limitations. "[T]he property acquired must be taken for a
'public use,' the State must pay 'just compensation' in exchange for the property,
and no person shall be deprived of his or her property without due process of
law." Id. at 572.
Consequently, "New Jersey courts traditionally have granted wide latitude
to condemning authorities in determining what property may be condemned for
'public use,' reasoning that it is the province of the Legislature to shape the
contours of the 'public use' requirement." Ibid. (first citing Burnett v. Abbott,
14 N.J. 291, 294 (1954); then citing Lenzner, 16 N.J. at 473). Accordingly,
public use is anything that "tends to enlarge resources, increase the industrial
energies, and . . . manifestly contributes to the general welfare and the
prosperity of the whole community." Ibid. (alteration in original) (quoting
Julius L. Sackman, 2A Nichols' The Law of Eminent Domain § 7.02[2] (3d ed.
rev. 1990)). Moreover, "[g]iven the broad definition of 'public use,' it is not
essential that the entire community or even any considerable portion of the
community directly enjoy or participate in the condemned property for the
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taking to constitute a 'public use.'" Id. at 573 (citing State Highway Comm'r v.
Totowa Lumber & Supply Co., 96 N.J. Super. 115, 121 (App. Div. 1967)).
Applying these principles, we hold that the Township acted for a proper
public purpose and that the easements were being acquired for a public use when
the Township condemned the easements to obtain federal funding for a beach
protection project. It is a proper public purpose for a municipality to undertake
a project to protect its shoreline. It is equally a proper public purpose for a
municipality to act in conjunction with the state or federal government for such
a shore protection project.
Defendants suggest that there is something improper in the Township
condemning their property to obtain federal funds. That argument ignores the
purpose of the funds. Here, it is undisputed that the funds are being used for
beach protection, which protects properties throughout the Township, including
defendants' properties. Consequently, there is nothing improper in a
municipality seeking an easement to satisfy federal or state requirements to
obtain the funding for a beach protection project. The public use is the beach
protection project.
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Defendants also argue that our decision in State v. North Beach 1003,
LLC, 451 N.J. Super. 214 (App. Div. 2017) supports their position. In that
regard, they cite to a section of the North Beach opinion that states:
Such a federal requirement, however, does not establish
the [NJDEP's] authority to acquire easements with
public access and use. Instead, the source of the
[NJDEP's] authority must be found in state law. The
public access and use called for by the federal law is
only a requirement for receiving federal funding for the
Projects.
[Id. at 240.]
That quotation, however, must be read in context. In North Beach 1003, we
were not stating that receiving federal funds was an improper public purpose for
taking private property. Instead, we were pointing out that the authority for the
condemnation must be found in state law. Accordingly, in North Beach 1003,
we held that the source of NJDEP's authority to condemn was statutory. Ibid.(citing N.J.S.A. 12:3-64). Here, the municipality also has statutory authority to
condemn private property for purposes of eminent domain. N.J.S.A. 40:56 -7.
Moreover, as already pointed out, municipalities have that eminent domain
authority specifically with regard to improvements for beach protection.
N.J.S.A. 40:56-1(g) and (h).
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In short, we discern no abuse of the Township's eminent domain authority
when it sought easements for public access to beaches being protected and
replenished by a federally-funded project. Such action is also closely related to
the Township's authority to act in compliance with the Public Trust Doctrine.
Thus, although here the Township was not acting solely for Public Trust
Doctrine purposes, its actions in seeking beach protection were not inconsistent
with the Public Trust Doctrine.
Affirmed. The stay of the construction activities on the easements is
continued for twenty days to give defendants time to file a petition for
certification and to seek a further stay from our Supreme Court.
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