It’s only been 60 years since New Jersey’s first significant beach replenishment project and 23 years since the first one to be federally funded. Yet in that short time, the diverse efforts to prevent erosion and protect beachfront property from damaging storms have sparked numerous lawsuits and an ocean’s worth of controversy. The latest argument that’s engulfed stakeholders as varied as vacation-homeowners, surfers, and constitutional scholars has nervous shoreline mayors worrying that future beach replenishment efforts will be too expensive to pursue.
They’re closely watching a legal drama involving the owners of a Long Beach Island home to whom a jury awarded $375,000 for an easement allowing the borough of Harvey Cedars to erect a 22-foot high sand dune on one-third of their beachfront land. The homeowners, who argued that they were entitled to $500,000 in compensation because the dune obstructed their view, access, breeze, and sunlight and thus diminished the value of their property, refused to settle for the $300 offered by the borough and fought the ensuing condemnation action. Local officials worry that if those dollars had to be duplicated throughout the shore, the cost would be astronomical.
Beach replenishment, or “nourishment,” is one of several commonly used methods to mitigate sand loss on developed beaches caused by erosion and longshore drift, in which tides continually wash sands toward other beaches along the coast. The goal is to protect them for recreation and tourism and barricade structures from ocean surges.
Using sand pumped or dumped from offshore or another location, engineers typically widen the beach or build dunes between the high-water mark and the street, boardwalk, and residential or commercial structures. Dunes often require waterfront property owners to relinquish some of their sandy land to the perceived public good in a transaction that usually involves an easement, which allows local officials to use the land that technically remains in the possession of the owner.
As the lawsuits demonstrate, it’s a controversial process, — one that doesn’t stop winds and tides from ceaselessly working against the sands. Not only does nourishment pit tourism advocates against property-rights defenders, it’s targeted for criticism by proponents of small government, environmentalists who decry the disturbance of plant and animal habitats, and surfers who lose out when projects alter the shoreline and the breaking waves.
Sand and the Supreme Court
In the Harvey Cedars case, the Superior Court ruled that the borough had to compensate the owners based on the fair market value of the home and could not offset a portion of the payment based on any alleged benefit from the protective barricades. In June, the Superior Appellate Court agreed that dunes provide a “general benefit” to the community as a whole and that beachfront homeowners, though their homes are made safer, do not receive the “special benefit” that the municipality argues should make up for some of the monetary damages. Since there’s been no state Supreme Court decision on this issue in many decades, the high court has agreed to hear the case.
Government officials in nearby Long Beach Township, who are part of a conditional $70 million package allotted by Congress in 2005 for the replenishment of most of the island’s beaches, have been waiting anxiously for the ruling. Unless it’s overturned by the New Jersey Supreme Court, the appellate court’s decision will surely affect its own legal battles against 190 homeowners who are themselves refusing to accept the terms the township is offering for easements.
But those officials are not simply waiting while the Supreme Court formulates its opinion. The NJ Department of Environmental Protection (DEP) is reviewing a request from Long Beach Township’s mayor to ask the U.S. Army Corps of Engineers, which works with the DEP and municipalities to fund and execute beach replenishment projects, to pursue the eminent domain case against the homeowners on its behalf in the federal court system. The mayor’s formal request comes after the DEP informed him it would consider such an action. Because the DEP is technically the applicant for replenishment projects, it is this department and not the township that has the authority to approach the Army Corps.
The initial DEP encouragement to proceed, codified in a letter written August 2, advises Mayor Joseph Mancini to recommend legal action against just one homeowner to test the mood of the federal court rather than including all 190 holdouts. But Kenneth Porro, a partner in the Paramus-based Wells, Jaworski, Liebman law firm that is representing 26 of the other parties, protested, saying that the DEP is ignoring case law and violating the constitution by circumnavigating the Superior Appellate Court — which has already ruled on this issue twice — in order to seek a more favorable outcome in the federal system.
“A letter from the DEP written to a mayor is not sufficient to overturn case law,” Porro said. “In my opinion, the mayor and the DEP person who signed it are subjecting themselves to liability because they’re directly violating rulings of the courts.”
DEP spokesperson Larry Ragonese responded, “Anybody’s allowed to appeal a case. That’s not unusual to seek another opinion in court. We disagreed with some rulings in state courts and we think the federal courts may have a different opinion, so we’re just seeking another venue to press what we believe is a legitimate case.”
Mancini could not be reached for comment, but he’s grown so frustrated with Brant Beach homeowners who are holding up the first phase of his project, that he’s posted their names and addresses on the township’s homepage. Above photos of two of the houses teetering above eroded cliffs, Mancini wrote, “Why won’t these homeowners sign their easements?”
The Ocean City Angle
Concerns over beach replenishment and private property rights are hardly limited to Long Beach Island. In Ocean City, homeowners are suing the government because their local leaders promised to adequately maintain the dunes built in 1994 to a height not to exceed three feet above the bulkhead. Some years later, the state implemented the second version of the Coastal Area Facility Review Act (CAFRA), which prohibits municipalities from performing any maintenance to dunes that would alter their height. Ocean City lawmakers are claiming that they shouldn’t be held responsible because of the legal concept of “impossibility of performance,” which means a certain obligation cannot be legally or practically fulfilled.
But proponents of beach replenishment counter that Ocean City, which in 1952 became the first municipality in the state to undertake a major beach nourishing project, is probably the state’s best argument for it.
“Ocean City grew in leaps and bounds to its visitor base because prior to that beach fill there wasn’t any beach to swim on,” said Stewart Farrell, director and founder of the Coastal Research Center of the Richard Stockton College of New Jersey. “You couldn’t give the houses away. They had a great view though.”
Ocean City ran another major beach nourishment project in 1991 because the infamous Halloween nor’easter that formed there and moved up the Eastern Seaboard to become the subject of the best-selling book and movie “The Perfect Storm,” decimated the boardwalk, which cost the local government, with the help of the Federal Emergency Management Agency (FEMA), $4 million to repair.
The replenishment concluded the next summer and was followed by a December nor’easter more powerful than the one before it. This time, no damage was done.
“Ocean City didn’t need to spend a dime. It got its money back in that first year,” said Farrell.
But almost no price would be too high, says Farrell, who notes that at $38 billion per year, Atlantic, Ocean, and Cape May counties generate more than half of the state’s tourism dollars — a figure that translates to an annual $2.8 billion in tax revenue. Plus, the Army Corps of Engineers contributes 65 percent of the funding for replenishment projects in addition to 50 years of maintenance. The rest is split 25 percent/75 percent by the municipality and the state’s annual $25 million appropriation to the Coastal Shore Protection Fund.
Reversing the Funding Formula
In recent years, Congress unsuccessfully tried to reverse the funding formula to place 65 percent of the burden on state and local governments, then succeeded in getting it split 50/50 — but only as it pertains to the maintenance of new projects. The new ratio doesn’t currently affect New Jersey since there’ve been no new projects authorized since the current Congress took office.
New Jersey Congressman Frank LoBiondo (R-2nd), whose district includes much of the southern shore region, has publicly attacked President Obama for failing to provide funding to the corps in his latest budget, telling the Cape May Herald editorial board in March that “the administration has determined these projects are not important.” However, in the same interview, LoBiondo acknowledged the president’s budget proposal lacks the force of law. The White House Office of Management and Budget (OMB), whose work on the budget more than any other single entity influences the final version that Congress passes, has authorized zero funding for beach replenishment since the Clinton Administration. Farrell says delegations skirt the problem by getting their replenishment projects funded through special appropriations.
New Jersey, Farrell says, has received significantly more federal funding for replenishment projects than any other state. Of the 127 miles of Jersey shoreline, 97 miles are developed, and 54 of those miles have been authorized for nourishment. The funding formula indicates that the corps is responsible for 45.5 of those miles — a number equivalent to 47 percent of the total developed shoreline. Farrell says in no other state does that number exceed ten percent.
According to a report Farrell is in the process of compiling, more than $566.7 million has been spent on replenishment projects in New Jersey over the past quarter-century, totaling 74 million yards of sand and counting. Considering a basic home swimming pool can hold about 40 cubic yards of material, Farrell summarizes, “That’s a s—tload of sand.”
But surfers and environmentalists are among those who don’t necessarily appreciate all that sediment. Environmentalists caution that natural habitats are being disrupted by the dredging and relocating of soil, and surfers gripe that the waves don’t break as well as they did when beach manipulation was limited to jetties and groins — both of which stretch narrowly into the water to trap sand.
Partially in response to surfers’ concerns, the Philadelphia and New York City offices of the corps have stopped overfilling Jersey’s shoreline to make it straight. They’ve also started adding “bump-outs,” or feeder beaches, and geotubes (massive textile bags full of sand buried close to the high-water line). And they’ve attempted a process called “backpassing” that excavates excess sand and moves it to create a more gradual slope.
Engineers are also reintroducing jetties and groins as a way to hold the new sand in place for longer periods of time. The Atlantic City project that’s closed off parts of Revel’s beach in the resort’s inaugural season is an example of this, and it’s designed to postpone the inconvenience of doing it again in another few years.
But that still leaves a lot of people wondering why so much time, money, and effort are spent on projects that eventually wash away and sometimes create unanticipated problems — such as the World War I munitions that cost beach days and a reported $15.7 million to clean up after dredging washed them up on Surf City’s shore in 2006.
Ragonese said, “Our beaches are vital to the economy of the state and to the recreational opportunities of its residents. That’s why so much money is spent to protect the infrastructure and economy of all the shore communities.”
If the federal funding formula remains intact and the courts don’t make such projects prohibitively expensive, these programs show no signs of abating despite contracting budgets. Another factor may be the worsening severity and frequency of the storms that pummel the coastline. Once again, Ocean City provides a conclusive example. Just this month, its city council approved the introduction of a $650,000 bond to begin paying for its next replenishment project.