# STATE OF NEW JERSEY, DEP VS. NORTH BEACH 1003,LLC,STATE OF NEW JERSEY, DEP VS. SHANIN SPECTER, ETALSTATE OF NEW JERSEY, DEP VS. THOMAS R. KLINESTATE OF NEW JERSEY, DEP VS. ROBERT S. HEKEMIAN,ET AL. STATE OF NEW JERSEY, DEP VS. RICHARD CAROLAN, ETAL.STATE OF NEW JERSEY, DEP VS. JEANETTE F.FRANKENBERGSTATE OF NEW JERSEY, DEP VS. BEVERLY T. CAMMARANO QUALIFIED PERSONAL RESIDENCE TRUSTSTATE OF NEW JERSEY, DEP VS. BARBARA J. WELDONSTATE OF NEW JERSEY, DEP VS. COLLEEN M. ROWE, ETAL.STATE OF NEW JERSEY, DEP VS. KEVIN KLINGERT, ETAL. STATE OF NEW JERSEY, DEP VS. PATRICIA ROBERTSTRUST STATE OF NEW JERSEY, DEP VS. DAVID CASTELBLANCO,ET AL. STATE OF NEW JERSEY, DEP VS. RICHARD MALOUF, ETAL. STATE OF NEW JERSEY, DEP VS. FREDERICK SMITH, ETAL.STATE OF NEW JERSEY, DEP VS. MICHAEL VANKRALINGENSTATE OF NEW JERSEY, DEP VS. DENNIS LA PLANTE, ETAL. STATE OF NEW JERSEY, DEP VS. COURTNEY M. ALESSO,ET AL. STATE OF NEW JERSEY, DEP VS. MINALKUMAR A. PATELLIVING TRUST STATE OF NEW JERSEY, DEP VS. NEIL KAHANOVITZ, ETAL.STATE OF NEW JERSEY, DEP VS. JILL P. GILESREVOCABLE TRUSTNINA RITTER VS. STATE OF NEW JERSEY, DEPSTATE OF NEW JERSEY, DEP VS. RAYMOND BRAUN, ETAL.STATE OF NEW JERSEY, DEP VS. THOMAS BUCKLEY, ETAL. STATE OF NEW JERSEY, DEP VS. GERARD LOSURDO, ETAL. (L-3067-15,L-3071-15, L-3077-15, L-3066-15,L-3069-15,L-2919-15, L-3289-15, L-3286-15, L-3420-15,L-3410-15, L-3319-15, L-3287-15, L-3285-15, L-3438-15,L-0442-16, L-0444-16, L-0443-16, L-3206-15, L-3205-15,L-3288-15,L-2949-15, L-3204-15, L-3292-15, L-3275-15, OCEAN COUNTY AND STATEWIDE)(CONSOLIDATED)

> New Jersey Superior Court Appellate Division · June 22, 2017 · 451 N.J. Super. 214

URL: https://www.frixlaw.com/law-library/cases/4180376

## Case

- **Court:** New Jersey Superior Court Appellate Division
- **Decided:** June 22, 2017
- **Citations:** 451 N.J. Super. 214; 166 A.3d 239
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 8 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4180376

## Opinion text

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3393-15T4,
A-3396-15T4, A-3397-15T4,
A-3398-15T4, A-3399-15T4,
A-3727-15T4, A-3770-15T4,
A-3771-15T4, A-3781-15T4,
A-3782-15T4, A-3783-15T4,
A-3786-15T4, A-3787-15T4,
A-3789-15T4, A-3790-15T4,
A-3791-15T4, A-3792-15T4,
A-3958-15T4, A-3960-15T4,
A-3965-15T4, A-3966-15T4,
A-3967-15T4, A-3969-15T4,
A-3970-15T4

STATE OF NEW JERSEY, DEPARTMENT
OF ENVIRONMENTAL PROTECTION,

Plaintiff-Respondent, APPROVED FOR PUBLICATION

v. June 22, 2017

APPELLATE DIVISION
NORTH BEACH 1003, LLC, a
New Jersey limited liability
company,

Defendant-Appellant,

and

STATE OF NEW JERSEY, DEPARTMENT
OF THE TREASURY, DIVISION OF
TAXATION,

Defendant.
_________________________________

STATE OF NEW JERSEY, DEPARTMENT
OF ENVIRONMENTAL PROTECTION,

Plaintiff-Respondent,
v.

SHANIN SPECTER and TRACEY
SPECTER,

Defendants-Appellants,

and

GE CAPITAL MORTGAGE SERVICES,
INC., a New Jersey corporation
or its successor,

Defendant-Respondent.
_________________________________

STATE OF NEW JERSEY, DEPARTMENT
OF ENVIRONMENTAL PROTECTION,

Plaintiff-Respondent,

v.

THOMAS R. KLINE,

Defendant-Appellant.
_________________________________

STATE OF NEW JERSEY, DEPARTMENT
OF ENVIRONMENTAL PROTECTION,

Plaintiff-Respondent,

v.

ROBERT S. HEKEMIAN,

Defendant-Appellant,

and

MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC.,
a Delaware foreign profit
corporation, or its successor,
as nominee for TD BANK, N.A.,

2 A-3393-15T4
Defendant-Respondent.
_________________________________

STATE OF NEW JERSEY, DEPARTMENT
OF ENVIRONMENTAL PROTECTION,

Plaintiff-Respondent,

v.

RICHARD CAROLAN and
TINA CAROLAN,

Defendants-Appellants.
_________________________________

STATE OF NEW JERSEY, DEPARTMENT
OF ENVIRONMENTAL PROTECTION,

Plaintiff-Respondent,

v.

JEANETTE F. FRANKENBERG and
LOUIS CAMPISANO,

Defendants-Appellants,

and

THE PROVIDENT BANK, a New Jersey
domestic limited liability
company, or its successor,

Defendant-Respondent.
_________________________________

STATE OF NEW JERSEY, DEPARTMENT
OF ENVIRONMENTAL PROTECTION,

Plaintiff-Respondent,

v.

BEVERLY T. CAMMARANO QUALIFIED

3 A-3393-15T4
PERSONAL RESIDENCE TRUST,
BEVERLY T. CAMMARANO and ROBERT
J. CAMMARANO as co-trustees,

Defendants-Appellants,

and

BANK of AMERICA, N.A.,

Defendant.
_________________________________

STATE OF NEW JERSEY, DEPARTMENT
OF ENVIRONMENTAL PROTECTION,

Plaintiff-Respondent,

v.

BARBARA J. WELDON,

Defendant-Appellant.
_________________________________

STATE OF NEW JERSEY, DEPARTMENT
OF ENVIRONMENTAL PROTECTION,

Plaintiff-Respondent,

v.

COLLEEN M. ROWE and
KELLY A. ROWE,

Defendants-Appellants.
_________________________________

STATE OF NEW JERSEY, DEPARTMENT
OF ENVIRONMENTAL PROTECTION,

Plaintiff-Respondent,

v.

KEVIN KLINGERT and KRISLYN

4 A-3393-15T4
KLINGERT,

Defendants-Appellants.
_________________________________

STATE OF NEW JERSEY, DEPARTMENT
OF ENVIRONMENTAL PROTECTION,

Plaintiff-Respondent,

v.

PATRICIA ROBERTS TRUST,
PATRICIA ROBERTS as trustee,
and SCOTT GUSMER,

Defendants-Appellants.
_________________________________

STATE OF NEW JERSEY, DEPARTMENT
OF ENVIRONMENTAL PROTECTION,

Plaintiff-Respondent,

v.

DAVID CASTELBLANCO and LAURA
ENGELHARDT,

Defendants-Appellants,

and

FIRST REPUBLIC BANK,

Defendant-Respondent.
_________________________________

STATE OF NEW JERSEY, DEPARTMENT
OF ENVIRONMENTAL PROTECTION,

Plaintiff-Respondent,

v.

RICHARD MALOUF and MARILYN

5 A-3393-15T4
MALOUF,

Defendants-Appellants.
_________________________________

STATE OF NEW JERSEY, DEPARTMENT
OF ENVIRONMENTAL PROTECTION,

Plaintiff-Respondent,

v.

FREDERICK SMITH, SANDRA S.
HOLDER-BROWN as trustee for
SANDRA S. HOLDER-BROWN
TRUST, and DEBORAH A. SMITH,

Defendants-Appellants,

and

SANTANDER BANK, N.A.,

Defendant-Respondent.
________________________________

STATE OF NEW JERSEY, DEPARTMENT
OF ENVIRONMENTAL PROTECTION,

Plaintiff-Respondent,

v.

MICHAEL VAN KRALINGEN and
SANDRA MILLER as trustees of
the VAN KRALINGEN RESIDENCE
TRUST II,

Defendants-Appellants,

and

0.238-Acres of Land in The
Borough of Point Pleasant
Beach, Ocean County, New
Jersey and INVESTORS SAVINGS

6 A-3393-15T4
BANK,

Defendants-Respondents.
_________________________________

STATE OF NEW JERSEY, DEPARTMENT
OF ENVIRONMENTAL PROTECTION,

Plaintiff-Respondent,

v.

DENNIS LA PLANTE and CATHERINE
LA PLANTE,

Defendants-Appellants,

and

0.232-Acres of Land in The
Borough of Point Pleasant Beach,
M&T BANK CORPORATION, as
successor to HUDSON CITY SAVINGS
BANK, and U.S. SMALL BUSINESS
ADMINISTRATION,

Defendants-Respondents.
_________________________________

STATE OF NEW JERSEY, DEPARTMENT
OF ENVIRONMENTAL PROTECTION,

Plaintiff-Respondent,

v.

COURTNEY M. ALESSO and JOHN A.
ALEXY, co-trustees of the
COURTNEY M. ALESSO 2012 TRUST,

Defendants-Appellants,

and

0.259-Acres of Land In The
Borough of Point Pleasant Beach,

7 A-3393-15T4
Ocean County, New Jersey,

Defendant-Respondent.
_________________________________

STATE OF NEW JERSEY, DEPARTMENT
OF ENVIRONMENTAL PROTECTION,

Plaintiff-Respondent,

v.

MINALKUMAR A. PATEL LIVING TRUST,
MINALKUMAR A. PATEL and ASRA
WARSI as trustees, and ASRA WARSI
LIVING TRUST, MINALKUMAR A. PATEL
and ASRA WARSI as trustees,

Defendants-Appellants.
_________________________________

STATE OF NEW JERSEY, DEPARTMENT
OF ENVIRONMENTAL PROTECTION,

Plaintiff-Respondent,

v.

NEIL KAHANOVITZ and SUZANNE
KAHANOVITZ,

Defendants-Appellants,

and

MANASQUAN SAVINGS BANK,

Defendant-Respondent.
_________________________________

STATE OF NEW JERSEY, DEPARTMENT
OF ENVIRONMENTAL PROTECTION,

Plaintiff-Respondent,

v.

8 A-3393-15T4
JILL P. GILES REVOCABLE TRUST,
JILL P. GILES, as trustee,

Defendants-Appellants,

and

MANASQUAN SAVINGS BANK,

Defendant-Respondent.
_________________________________

NINA RITTER, SHARON CRUZ,
LAWRENCE E. BATHGATE, II, AUSTIN
FRAGOMEN and GWENDOLYN FRAGOMEN,
SMATCO, LP, ANN F. MESTRES,
LOWELL MILLAR and JENNIFER
MILLAR,

Plaintiffs-Appellants,

v.

STATE OF NEW JERSEY, DEPARTMENT
OF ENVIRONMENTAL PROTECTION,

Defendant-Respondent.
_________________________________

STATE OF NEW JERSEY, DEPARTMENT
OF ENVIRONMENTAL PROTECTION,

Plaintiff-Respondent,

v.

RAYMOND BRAUN and JAYNE K.
BRAUN,

Defendants-Appellants,

and

NEW YORK COMMUNITY BANCORP,

9 A-3393-15T4
Defendant-Respondent.
_________________________________

STATE OF NEW JERSEY, DEPARTMENT
OF ENVIRONMENTAL PROTECTION,

Plaintiff-Respondent,

v.

THOMAS BUCKLEY and KAREN
BUCKLEY,

Defendants-Appellants,

and

TD BANK NORTH, INC., d/b/a TD
BANK, N.A.,

Defendant-Respondent.
_________________________________

STATE OF NEW JERSEY, DEPARTMENT
OF ENVIRONMENTAL PROTECTION,

Plaintiff-Respondent,

v.

GERARD LOSURDO and NINA
LOSURDO,

Defendants-Appellants,

and

U.S. BANK, N.A.,

Defendant-Respondent.
_________________________________

Argued May 2, 2017 – Decided June 22, 2017

Before Judges Yannotti, Fasciale, and
Gilson.

10 A-3393-15T4
On appeal from the Superior Court of New
Jersey, Law Division, Ocean County, Docket
Nos. L-3067-15, L-3071-15, L-3077-15, L-
3066-15, L-3069-15, L-2919-15, L-3289-15, L-
3286-15, L-3420-15, L-3410-15, L-3319-15, L-
3287-15, L-3285-15, L-3438-15, L-0442-16, L-
0444-16; L-0443-16, L-3206-15, L-3205-15, L-
3288-15, L-2949-15, L-3204-15, L-3292-15,
and L-3275-15.

Scott A. Heiart argued the cause for
appellants North Beach 1003, L.L.C., Shanin
Specter and Tracey Specter, Thomas R. Kline,
Robert S. Hekemian, and Richard Carolan and
Tina Carolan (Carlin & Ward, P.C.,
attorneys; Mr. Heiart, on the briefs).

Mark S. Winter argued the cause for
appellants Jeanette F. Frankenberg and Louis
Campisano (Stern Lavinthal Frankenberg &
Norgaard, L.L.C., attorneys; Mr. Winter, on
the briefs).

John H. Buonocore, Jr. and Anthony F.
DellaPelle argued the cause for appellants
Beverly T. Cammarano Qualified Personal
Residence Trust, Beverly T. Cammarano and
Robert J. Cammarano as co-trustees, Barbara
J. Weldon, Colleen M. Rowe and Kelly A.
Rowe, Kevin Klingert and Krislyn Klingert,
Patricia Roberts Trust, Patricia Roberts as
trustee, and Scott Gusmer, David
Castelblanco and Laura Engelhardt, Richard
Malouf and Marilyn Malouf, Frederick Smith,
Sandra S. Holder-Brown as trustee for Sandra
S. Holder-Brown Trust and Deborah A. Smith,
Michael Van Kralingen and Sandra Miller as
trustees of the Van Kralingen Residence
Trust II, Dennis La Plante and Catherine La
Plante, Courtney M. Alesso and John A.
Alexy, co-trustees of the Courtney M. Alesso
2012 Trust, Minalkumar A. Patel Living
Trust, Minalkumar A. Patel and Asra Warsi as
trustees, Asra Warsi Living Trust,
Minalkumar A. Patel and Asra Warsi as

11 A-3393-15T4
trustees, Neil Kahanovitz and Suzanne
Kahanovitz, Jill P. Giles Revocable Trust,
Jill P. Giles as trustee, Nina Ritter,
Sharon Cruz, Lawrence E. Bathgate, II,
Austin Fragomen and Gwendolyn Fragomen,
SMATCO, L.P., Ann F. Mestres, Lowell Millar
and Jennifer Millar, Raymond Braun and Jayne
K. Braun, Thomas Buckley and Karen Buckley,
and Gerard Losurdo and Nina Losurdo (McKirdy
& Riskin, P.A., attorneys; Mr. Buonocore and
Mr. DellaPelle, on the briefs).

David C. Apy, Assistant Attorney General,
and Ronald L. Perl, argued the cause for
respondent Department of Environmental
Protection (Christopher S. Porrino, Attorney
General, and Hill Wallack, L.L.P.,
attorneys; Melissa H. Raksa, Assistant
Attorney General, of counsel; David S.
Frankel, Kristina L. Miles, Bruce A. Velzy,
Deputy Attorneys General, and Dale Laster
Lessne, on the brief).

The opinion of the court was delivered by

GILSON, J.A.D.

These consolidated appeals present the questions whether

the New Jersey Department of Environmental Protection (DEP) has

the authority to condemn private property to take perpetual

easements for shore protection purposes and whether the

easements can allow public access to, and use of, the areas

covered by the easements. We hold that the DEP has such

authority and the easements that allow for publicly funded beach

protection projects can include public access and use. Thus, we

affirm the trial court's final judgments finding that the DEP

properly exercised its power of eminent domain and appointing

12 A-3393-15T4
commissioners to determine the value of the takings. We also

affirm the trial court's orders denying defendants' motion to

dismiss the DEP's complaints and granting summary judgment to

the DEP on the declaratory judgment action brought by certain

appellants.

I.

Under the New Jersey public trust doctrine, the State holds

ownership over all shore-lined lands that are flowed by the tide

up to the mean high water mark. City of Long Branch v. Jui Yung

Liu, 203 N.J. 464, 475 (2010) (citing O'Neill v. State Highway

Dep't, 50 N.J. 307, 323 (1967)). Accordingly, New Jersey has

historically managed, protected, and developed its shoreline.

Over the past several decades, the federal government has

assisted New Jersey in protecting coastal communities from the

impacts of storms and beach erosion. In 1986, Congress enacted

the Water Resources Development Act (WRDA), 33 U.S.C.A. § 2211

to § 2227. Under the WRDA, the federal government will pay

between fifty to sixty-five percent of the costs of such

projects and the State will be responsible for the remaining

balance. 33 U.S.C.A. § 2213.

In the aftermath of Superstorm Sandy, Congress passed the

Disaster Relief Appropriations Act of 2013 (Sandy Act), Pub. L.

No. 113-2, 127 Stat. 4. The Sandy Act authorizes the Army Corps

13 A-3393-15T4
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 for the completion of some

of the projects. The State's contribution for those projects

can be deferred and financed over a period of thirty years.

In September 2013, Governor Chris Christie issued Executive

Order No. 140. That order established the Office of Flood

Hazard Risk Reduction Measures within the DEP and gave it

responsibility "for the rapid acquisition of property vital to

[Sandy] reconstruction efforts[.]"

To facilitate the projects authorized by the Sandy Act, the

Army Corps partnered with the DEP. The DEP was responsible for

gaining physical access to the property along the New Jersey

shoreline needed to construct and maintain the projects. Two

projects are at issue on these appeals. The Long Beach Island

Project (the LBI Project) and the Manasquan Inlet to Barnegat

Inlet Storm Damage Reduction Project (the Manasquan Project).1

Those Projects consist of a dune and berm system extending the

1
According to the partnership agreements between the Army Corps
and the DEP, the federal government will fund one hundred
percent of the Manasquan Project initially and the State shall
defer payment of the contribution in accordance with the Sandy
Act. For the LBI Project, the State is required to pay thirty-
five percent of the cost at the start of the Project.

14 A-3393-15T4
entire eighteen-mile length of Long Beach Island and fourteen

miles along northern Ocean County from Berkeley Township to

Point Pleasant Beach.

Under its agreements with the Army Corps, the DEP must

obtain all necessary property interests before the Army Corps

will begin to construct the Projects. In that regard, the

project partnership agreements between the DEP and the Army

Corps provide that the DEP is to acquire all "real property

interests . . . required for construction, operation, and

maintenance of the Project[s]," including the "lands, easements

and right-of-way required for the Project[s]."

After Superstorm Sandy, the State, working with various

municipalities, undertook efforts to secure voluntary

conveyances of the property interests needed for the Projects.

While many property owners voluntarily granted easements, other

property owners declined to give voluntary easements. Thus, the

DEP initiated actions to acquire the remaining easements through

eminent domain proceedings.

Certain appellants in these consolidated appeals own

twenty-three properties on Long Beach Island or in northern

Ocean County. They refused to provide voluntary easements to

the DEP. The DEP filed condemnation complaints against the

owners of those twenty-three properties. Those property owners

15 A-3393-15T4
are referred to as the North Beach 1003 defendants, the

Frankenberg defendants, and the Cammarano defendants. The

owners of seven other properties brought a declaratory judgment

action against the DEP. They are referred to as the Ritter

appellants.

Before filing eminent domain actions, the DEP had an

appraiser, Richard Hall, appraise the properties owned by the

North Beach 1003, Frankenberg, and Cammarano defendants. Hall

first wrote to each property owner, informing them that he would

be conducting an appraisal and inviting them to provide him with

relevant information and to attend his inspection. Only a few

defendants responded to Hall and attended his inspection. As a

consequence, Hall was not given access to the homes of most

defendants, including the home owned by the Frankenberg

defendants.

Once the appraisals were completed, the DEP sent those

appraisals to defendants and offered to purchase easements for

between several hundred dollars and several thousand dollars.

Attorneys for defendants then informed the DEP that they would

like to negotiate those offers. The DEP responded that

defendants would need to obtain their own informal appraisals to

commence meaningful negotiations. Defendants requested time to

obtain such appraisals. Defendants also requested the DEP

16 A-3393-15T4
answer certain questions concerning Hall's appraisals and his

methodology. In addition, the Frankenberg defendants requested

a reappraisal since Hall had not inspected the interior of their

home. The Frankenberg defendants also provided the DEP with

photographs of the views from the interior of their home and

allowed representatives of the DEP and the Army Corps to inspect

their home.

Eventually, the DEP set a deadline for receiving

defendants' appraisals. When the deadline passed without

receipt of appraisals from defendants, the DEP commenced

condemnation actions in late 2015 and early 2016.

In the condemnation complaints against the North Beach

1003, Frankenberg, and Cammarano defendants, the DEP sought

perpetual easements under N.J.S.A. 12:3-64. The proposed

easements would allow for the "construction, periodic

nourishment, and continued maintenance of the Project[s'] dunes

and berms system." The easements also provided the right for

the public to access and use the areas covered by the easements.

Defendants responded with answers and motions to dismiss

the complaints, contending that the DEP lacked statutory

authority to take easements. Defendants also contended that the

DEP did not have the authority to take perpetual easements,

which provided for a public beach. Additionally, defendants

17 A-3393-15T4
asserted that the DEP had failed to engage in bona fide

negotiations as required by the Eminent Domain Act (EDA),

N.J.S.A. 20:3-1 to -50.

On March 4, 2016, the trial court heard oral argument in

the matters involving the North Beach 1003, Frankenberg, and

Cammarano defendants. Thereafter, on March 28, 2016, the trial

court issued a written opinion explaining that it would grant

the DEP's orders to show cause and deny defendants' motions to

dismiss. The court held that the DEP was statutorily authorized

to take private property for "public beach purposes and for

shore protection purposes." Specifically, the trial court held

that both N.J.S.A. 12:3-64 and the EDA permitted the DEP to take

a property interest less than a fee simple, such as perpetual

easements. The court also held that, because federal funding

was conditioned on public access and use, the DEP had the

discretion to include public access and use as part of the

easements. Finally, the court found that the DEP had complied

with all pre-litigation steps required by the EDA, including

engaging in bona fide negotiations with the property owners.

See N.J.S.A. 20:3-6.

Having held that the DEP properly exercised its power of

eminent domain, on April 5, 2016, the trial court entered orders

18 A-3393-15T4
for final judgments in favor of the DEP and appointed

commissioners to determine the value of the takings.2

Separately, in 2015, the Ritter appellants filed a

declaratory judgment action seeking a ruling that the DEP could

not rely on N.J.S.A. 12:3-64 to acquire easements on their

properties. The Ritter appellants moved for summary judgment

and the DEP cross-moved for summary judgment, arguing that the

Ritter appellants' action was premature since the DEP had not

yet commenced condemnation proceedings against their properties.

The trial court granted summary judgment to the DEP in an order

entered on April 8, 2016. The court relied on its March 28,

2016 opinion, holding that the DEP had authority to condemn

private property. The court also found that the Ritter

appellants were seeking an advisory opinion because the DEP had

not yet filed condemnation actions against those property

owners.

The North Beach 1003, Frankenberg, and Cammarano defendants

now appeal the orders of final judgments entered in their

2
The trial court also ruled that it would conduct a plenary
hearing to determine whether the Project was necessary in front
of certain properties that were already protected by a "rock
revetment," as alleged by certain owners of properties located
in Bay Head and Mantoloking. At oral argument, counsel informed
us that the properties protected by the rock revetment are not
part of these consolidated appeals because the trial court has
not yet issued a decision concerning those properties.

19 A-3393-15T4
actions. The Ritter appellants appeal the April 8, 2016 order

granting summary judgment to the DEP and dismissing their

declaratory judgment action. All the appeals were consolidated

because they present similar issues. One property owner who was

initially part of these consolidated appeals has resolved the

dispute with the DEP while these appeals were pending. We

denied appellants' request for stays of the Projects pending

these appeals, but we accelerated the consolidated appeals.

II.

In challenging the orders and judgments entered by the

trial court, appellants present eight arguments, six of which

relate to all appellants, and two of which are specific to the

North Beach 1003 and Frankenberg defendants. Specifically,

appellants argue that the trial court erred by (1) holding that

the DEP had statutory authority to acquire easements; (2)

interpreting N.J.S.A. 12:3-64 to allow for the taking of

easements; (3) interpreting N.J.S.A. 12:3-64 to allow for the

protection of public beaches; (4) interpreting our decision in

State v. Archer, 107 N.J. Super. 77 (App. Div. 1969); (5)

determining that the EDA authorized the DEP to take easements;

(6) allowing the DEP to take perpetual easements; (7) finding

that the DEP conducted bona fide negotiations with the North

20 A-3393-15T4
Beach 1003 defendants; and (8) finding that the DEP acted in

good faith in dealing with the Frankenberg defendants.

We first address the DEP's statutory authority to condemn

property and thereby address appellants' first, second, fourth,

and fifth arguments. Next, we examine whether the DEP can take

a perpetual easement that allows for public access, which will

address appellants' third and sixth arguments. Finally, we will

address the last two arguments raised by the North Beach 1003

and Frankenberg defendants concerning the bona fide negotiations

by the DEP and the agency's compliance with the pre-litigation

procedures in the EDA.

Initially, we identify our standard of review. We use a

plenary standard to review questions of law. Manalapan Realty,

L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Thus, we review de novo the question whether the DEP has

statutory authority to condemn private property and take

perpetual easements allowing for public access and use. We

defer to the trial court's factual findings regarding the

negotiations conducted by the DEP. Tractenberg v. Township of

West Orange, 416 N.J. Super. 354, 365 (App. Div. 2010) (quoting

Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474,

484 (1974)). Accordingly, we will reverse such factual findings

only if "they are so manifestly unsupported by or inconsistent

21 A-3393-15T4
with the competent, relevant and reasonably credible evidence."

Rova Farms, supra, 65 N.J. at 484. To the extent that

established facts are applied to legal questions, however, we

owe no special deference to the trial court. Manalapan, supra,

140 N.J. at 378.

A. The DEP's Authority to Condemn Private Property and
Take an Easement.

The power of eminent domain, under which the State may take

private property for a public purpose, "is an inherent and a

necessary right of the sovereignty of the state." Valentine v.

Lamont, 13 N.J. 569, 575 (1953), cert. denied, 347 U.S. 966, 74

S. Ct. 776, 98 L. Ed. 1108 (1954). That power rests with the

Legislature. State by Comm'r of Transp. v. Township of South

Hackensack, 111 N.J. Super. 534, 543 (App. Div. 1970), certif.

denied, 57 N.J. 433 (1971). Our State Constitution provides

that when the State takes private property for a public purpose,

it 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 sub-

divisions:

Any agency or political subdivision of the
State . . ., which may be empowered to take
or otherwise acquire private property for
any public . . . use, may be authorized by
law to take or otherwise acquire a fee
simple absolute or any lesser interest, and
may be authorized by law to take or

22 A-3393-15T4
otherwise acquire a fee simple absolute in,
easement upon, or the benefit of
restrictions upon, abutting property to
preserve and protect the public . . . use;
but such taking shall be with just
compensation.

[N.J. Const. art. IV, § 6, ¶ 3.]

1. Statutory Authority

The Legislature has expressly delegated to the DEP the

power of eminent domain and the power to protect the New Jersey

coastline through N.J.S.A. 12:3-64 and N.J.S.A. 12:6A-1. The

power to condemn "any lands in the State" is set forth in

N.J.S.A. 12:3-64. The power to protect the shore is set forth

in N.J.S.A. 12:6A-1.

N.J.S.A. 12:3-64 provides:

The [DEP] may acquire title, in fee simple,
in the name of the State, by gift, devise or
purchase or by condemnation in the manner
provided in chapter one of the Title Eminent
Domain (20:1-1 et seq.) to any lands in the
State, including riparian lands, of such
area and extent which, in the discretion of
the department, may be deemed necessary and
advisable.

. . . .

Lands thus acquired shall be used for the
improvement or development of any waterway,
stream, river or creek or any waterfront or
oceanfront property or to give access to any
lands of the State.[3]

3
When N.J.S.A. 12:3-64 was first enacted in 1918, the statute
authorized the Board of Commerce and Navigation to condemn
(continued)

23 A-3393-15T4
N.J.S.A. 12:6A-1, entitled "Beach Protection; powers,"

states:

In addition to the powers conferred by the
provisions of the act to which this act is a
supplement, the [DEP] is hereby authorized
and empowered to repair, reconstruct, or
construct bulkheads, seawalls, breakwaters,
groins, jetties, beachfills, dunes and any
or all appurtenant structures and work, on
any and every shore front along the Atlantic
ocean . . . to prevent or repair damage
caused by erosion and storm, or to prevent
erosion of the shores and to stabilize the
inlets or estuaries and to undertake any and
all actions and work essential to the
execution of this authorization and the
powers granted hereby.

The initial question is whether N.J.S.A. 12:3-64 limits the

DEP to acquiring only a fee simple, thereby restricting the DEP

from acquiring a lesser interest, such as an easement. We hold

that the Legislature intended the power to acquire a fee simple

to include the power to acquire lesser interests, including an

easement.

We start with the plain language of the statute. See Merin

v. Maglaki, 126 N.J. 430, 434 (1992) (explaining that

"[c]onstruction of any statute necessarily begins with

consideration of its plain language"). Read in full context,

(continued)
lands. L. 1918, c. 215. The statute was amended in 1939, and
the authority was given to the Department of Conservation and
Economic Development (DCED). L. 1939, c. 193. The powers of
the DCED were later transferred to the DEP. N.J.S.A. 13:1D-1.

24 A-3393-15T4
the words "fee simple" do not limit the DEP's authority. To the

contrary, because fee simple is the greatest interest that can

be acquired in land, those words do not suggest that the DEP

could not elect to take a lesser interest. For example, the

statute states that the DEP may condemn "any lands in the State,

including riparian lands, of such area and extent which, in the

discretion of the department, may be deemed necessary and

advisable." N.J.S.A. 12:3-64. The word "extent" supports the

interpretation that the DEP has the discretion to acquire a

lesser interest than a full fee simple.

Appellants focus on the words "fee simple" and argue that

the Legislature must have intended to limit the DEP's authority

to acquire only a fee simple. That argument, however, finds no

support in the language of the statute. N.J.S.A. 12:3-64 is

written broadly to authorize the DEP to condemn "any lands in

the State, including riparian lands, of such area and extent

which, in the discretion of the department, may be deemed

necessary and advisable." The phrase "in fee simple" does not

suggest that the Legislature intended to limit the DEP's

authority to take a lesser interest.

Appellants also argue that N.J.S.A. 12:3-64 does not allow

the DEP to take interests in property for purposes of protecting

the shore from storm damage. In that regard, appellants point

25 A-3393-15T4
to the words "improvement or development" and argue that those

words do not include protecting the shoreline. Read in full

context, however, "improvement or development" includes

protecting the very lands being acquired for improvement or

development.

Appellants further contend that "improvement or

development" refers only to the authority, granted by N.J.S.A.

12:3-64 to -71, to acquire lands in fee simple so that they may

be leased or granted to the owner as compensation for the

taking. Such lands are then "improved and developed at the

expense of the grantee or lessee." N.J.S.A. 12:3-66. The

lessee or grantee must then "maintain and operate, during the

life of the lease or grant upon said premises, such enterprise,

commercial operation, business or venture as the improvements

are designed for[.]" N.J.S.A. 12:3-67. N.J.S.A. 12:3-65

states, however, that lands acquired under N.J.S.A. 12:3-64 "may

be leased or granted[.]" Thus, the statute does not limit DEP's

authority to acquire lands or interests in properties for use by

the State, such as shore protection.

2. The Eminent Domain Act

The DEP's power to acquire a lesser interest than a fee

simple under N.J.S.A. 12:3-64 is confirmed by the EDA. The EDA

was enacted in 1971 for the purpose of integrating and

26 A-3393-15T4
standardizing the more than three-hundred statutes authorizing

the exercise of eminent domain. Township of West Windsor v.

Nierenberg, 150 N.J. 111, 126 (1997). The EDA is not an

enabling statute; rather, it provides uniform practices and

procedures to be followed by all public entities that have the

power to condemn. County of Monmouth v. Wissell, 68 N.J. 35,

39-40 (1975); Township of Hillsborough v. Robertson, 260 N.J.

Super. 37, 42 (Law Div. 1992).

The EDA does not independently authorize the DEP to acquire

property by condemnation. The EDA does, however, confirm our

interpretation that N.J.S.A. 12:3-64 allows the DEP to acquire

any interest in property it condemns. Section twenty of the EDA

states:

The title to property condemned and acquired
by the condemnor hereunder, shall be a title
in fee simple, free and discharged of all
right, title, interest and liens of all
condemnees, and shall include all the right,
title and interest of each condemnee
therein, provided, however, that if the
complaint or any amendment thereof shall
specify a lesser title, the lesser title so
specified shall be the title condemned and
acquired.

[N.J.S.A. 20:3-20.]

Our Supreme Court has held that the language of N.J.S.A.

20:3-20 "anticipates a situation in which a leasehold or an

easement is the only condemned property interest." Town of

27 A-3393-15T4
Kearny v. Disc. City of Old Bridge, Inc., 205 N.J. 386, 405

(2011); see also Borough of Merchantville v. Malik & Son, LLC,

218 N.J. 556, 570 (2014) ("To be sure, a condemning authority

may condemn less than a fee simple interest. The very language

of N.J.S.A. 20:3-6 requiring the condemnor to identify the

property and the interest to be taken recognizes this

principle."). Moreover, the EDA defines "[p]roperty" to mean

"land, or any interest in land." N.J.S.A. 20:3-2(d).

When the Legislature enacted the EDA in 1971, it was aware

that the DEP had the authority to condemn property. Indeed,

N.J.S.A. 12:3-64 expressly provides that the DEP is to condemn

property "in the manner provided in chapter one of the Title

Eminent Domain (20:1-1 et seq.)," which was the statute replaced

by the EDA. Thus, when the Legislature authorized a condemnor,

such as the DEP, to take a title in fee simple or "a lesser

title," that confirmed the authority of the DEP. Indeed, if the

Legislature had intended to limit the DEP's authority to acquire

an interest less than a fee simple, it could have amended

N.J.S.A. 12:3-64. The Legislature, however, chose not to amend

that statute and left the DEP with the authority granted under

N.J.S.A. 20:3-20 to take "a lesser title" than fee simple.

28 A-3393-15T4
3. Implicit Authority

The power to acquire a lesser interest than a fee simple is

also implicit in N.J.S.A. 12:3-64. The sources of that implicit

legislative intent include (1) understanding the DEP's broad

authorities and reading N.J.S.A. 12:3-64 in conjunction with

N.J.S.A. 12:6A-1 and -2; (2) considering the history of beach

protection efforts in New Jersey; and (3) considering our

decision in Archer, supra, 107 N.J. Super. 77.

An administrative agency has the powers that have been

"expressly granted" by the Legislature, as well as such

"'incidental powers [as] are reasonably necessary or appropriate

to effectuate' those expressly granted powers." Borough of

Avalon v. N.J. Dep't of Envtl. Prot., 403 N.J. Super. 590, 607

(App. Div. 2008) (alteration in original) (quoting N.J. Guild of

Hearing Aid Dispensers v. Long, 75 N.J. 544, 562 (1978)),

certif. denied, 199 N.J. 133 (2009). Further, "the powers of an

administrative agency should be liberally construed to permit

the agency to achieve the task assigned to it[.]" In re Heller,

73 N.J. 292, 303 (1977) (quoting In re Comm'r of Banking & Ins.

v. Parkwood Co., 98 N.J. Super. 263, 271-72 (App. Div. 1967)).

Thus, "courts should readily imply such incidental powers

as are necessary to effectuate fully the legislative intent."

N.J. Guild, supra, 75 N.J. at 562. The primary task of the

29 A-3393-15T4
court is to "effectuate the legislative intent in light of the

language used and the objects sought to be achieved." Merin,

supra, 126 N.J. at 435 (quoting State v. Maguire, 84 N.J. 508,

514 (1980)). Therefore, in determining whether a given action

of the DEP has statutory authorization, a reviewing court "may

look beyond the specific terms of the enabling act" and

"examin[e] the entire statute in light of its surroundings and

objectives." N.J. Guild, supra, 75 N.J. at 562.

The DEP is a combination of agencies and divisions that

historically operated independently of each other. See, e.g.,

N.J.S.A. 13:1D-1 to -3 ("reorganiz[ing], continu[ing] and

designat[ing]" the Department of Conservation and Economic

Development (DCED) as the DEP). Accordingly, the DEP has a wide

array of responsibilities and related authorities. See, e.g.,

N.J.S.A. 12:3-1 (assigning to the DEP the task of

"ascertain[ing] the rights of the state and of the riparian

owners in the lands lying under the waters of the bay of New

York, and elsewhere in the state").

Those authorities include coordinating shore protection

programs. See N.J.S.A. 12:6A-1; see also N.J.S.A. 13:19-16.1

and -16.2 (creating a "Shore Protection Fund" to appropriate

monies for shore protection projects). Accordingly, the

statutes authorizing the DEP to condemn private property and to

30 A-3393-15T4
protect the shore should be read in pari materia with the

statutes that define the DEP's responsibilities and powers. Nw.

Bergen Cty. Utils. Auth. v. Donovan, 226 N.J. 432, 444 (2016)

(stating that "[s]tatutes that deal with the same matter or

subject should be read in pari materia and construed together as

a 'unitary and harmonious whole'" (alteration in original)

(quoting Saint Peter's Univ. Hosp. v. Lacy, 185 N.J. 1, 14-15

(2005))).

The broad language used by the Legislature in N.J.S.A.

12:6A-1, reflects the legislative intent to grant broad powers

and discretion to the DEP with regard to shore protection. For

example, the Legislature stated that the DEP was to protect

"every shore front along the Atlantic ocean" and "to undertake

any and all actions and work essential to the execution of" that

authority. N.J.S.A. 12:6A-1. At the time that the Legislature

enacted N.J.S.A. 12:6A-1, it knew that it had already authorized

a precursor to the DEP to condemn "any lands in the State,

including riparian lands[.]" N.J.S.A. 12:3-64. Thus, read in

conjunction, the two statutes give the DEP broad discretion to

acquire lands, either in fee simple or with a lesser interest,

such as an easement, for the purposes set forth in the statutes.

The history of beach protection also supports our holding

that the Legislature intended to grant the DEP broad discretion

31 A-3393-15T4
to acquire various types of interests in lands. Since 1986, and

the enactment of the WRDA, the DEP has repeatedly partnered with

the Army Corps to protect the New Jersey shoreline. The passage

of the Sandy Act in 2013 highlighted the need for the DEP to

work in conjunction with the Army Corps. The agreements between

the DEP and the Army Corps expressly require the DEP to acquire

all necessary property interests, including easements so that

the Army Corps can build the projects authorized by the Sandy

Act.

In the thirty years since 1986, and more recently in the

years since the passage of the Sandy Act, the Legislature has

been aware that the DEP would be acquiring various types of

interests in lands to protect the New Jersey coastline.

Implicitly, therefore, the Legislature expected the DEP to

facilitate both the WRDA and the Sandy Act by acquiring various

types of property interests, through condemnation when

necessary.

Appellants argue that traditionally municipalities have

been responsible for shore protection and thus the DEP cannot

independently acquire property for the purpose of protecting the

shoreline. In making this argument, appellants point to

N.J.S.A. 40:56-1(h), which allows municipalities to improve

beach or waterfront and provide protection to prevent damage to

32 A-3393-15T4
lands by the ocean. They also cite N.J.S.A. 40:68-27, which

allows municipalities bordering tidal waters to create and

establish beach erosion control districts, and N.J.S.A. App.

A:9-51.5, which gives municipalities the authority to construct

and repair protective barriers bordering the Atlantic Ocean and

Delaware Bay. Appellants also argue that a survey of past cases

reveals that municipalities were the entities that exercised the

power of eminent domain and acquired properties for the purpose

of shore protection. See, e.g., Klumpp v. Borough of Avalon,

202 N.J. 390, 397-98 (2010); Petrozzi v. City of Ocean City, 433

N.J. Super. 290, 297-98 (App. Div. 2013), certif. denied, 217

N.J. 623 (2014).

That practice, however, does not establish the absence of

alternatives to achieve the same end. Nothing in the statutes

cited by appellants implicitly or explicitly granted

municipalities the exclusive authority over the construction and

repair of beaches. See N.J.S.A. 40:56-1(h), N.J.S.A. 40:68-27,

and N.J.S.A. App. A:9-51.5. Further, as we have explained,

under N.J.S.A. 12:3-64, the Legislature expressly provided the

DEP with the authority to condemn properties for the purpose of

shore protection.

The Legislature's intent is also reinforced by our 1969

decision in Archer, supra, 107 N.J. Super. 77. In Archer, we

33 A-3393-15T4
addressed a lawsuit where private property owners challenged the

authority of the DEP's predecessor (the DCED) to exercise the

power of eminent domain to acquire lands for shore protection.

Id. at 78. We held that N.J.S.A. 12:3-64 gave the DCED, now the

DEP, the authority to condemn lands "for the purposes of

hurricane and shore protection." Id. at 79.

Accordingly, we rejected the claim that the DEP lacked

statutory authority under N.J.S.A. 12:3-64 to condemn property

for shore protection purposes. Instead, we held that N.J.S.A.

12:3-64 should be "read broadly so as to permit the [DEP] to

achieve the salutary purposes outlined in the act," and that

"[p]articipation by the Department in the Federal flood control

program via this act is fully warranted." Ibid.

In the almost fifty years since Archer was decided, the

Legislature has taken no action to amend the statute, nor has it

given any indication that this court was mistaken in Archer.

Accordingly, the Legislature has implicitly endorsed our

interpretation that that the DEP has broad powers to protect the

New Jersey shoreline. See Cavuoti v. N.J. Transit Corp., 161

N.J. 107, 133 (1999) (explaining that "when a statute has been

judicially construed, the failure of the Legislature

subsequently to act is evidence of legislative acquiescence in

the construction given"). Moreover, since the Archer decision

34 A-3393-15T4
was handed down, the Legislature has passed additional laws

expanding the DEP's shore protection authority and funding the

agency's shore protection efforts. See, e.g., N.J.S.A. 13:19-

16.1 to -16.3 (creating a shore protection fund).

In summary, both the express language of N.J.S.A. 12:3-64

and the broad powers conferred on the DEP support the

interpretation that the statute authorizes the DEP to acquire

any type of property interest in private property in order to

protect the New Jersey coastline.

B. The DEP Can Take a Perpetual Easement and Allow for
Public Access

Appellants argue that even if the DEP has authority to take

an easement, it cannot take a perpetual easement and any such

easement cannot allow for public access and use. We disagree.

1. Perpetual Easements

As we have already explained, N.J.S.A. 12:3-64 authorizes

the DEP to take any type of property interest in lands needed to

protect the New Jersey shoreline. Nothing in that statute

limits the duration of the interest to be taken. Indeed, a fee

simple is an estate of potentially infinite duration.

Restatement (First) of Property § 14(a)(i) (1936). Moreover,

the statute provides that DEP can

take "any lands . . . of such area and extent which, in the

35 A-3393-15T4
discretion of the department, may be deemed necessary and

advisable." N.J.S.A. 12:3-64.

Appellants argue that Congress limited the time for

projects under the WRDA to fifty years. 33 U.S.C.A. § 2220.

Thus, they contend that the DEP does not require a perpetual

easement. The fifty-year time frame in the WRDA, however,

relates to federal indebtedness and federal loans. In that

regard, the federal statute states, in relevant part:

[T]he Secretary of Commerce is authorized to
purchase evidences of indebtedness and to
make loans for a period not exceeding fifty
years to enable responsible local interests
to meet the requirements of local
cooperation pertaining to contributions
toward the cost of construction of such
projects within such areas.

[33 U.S.C.A. § 2220(a).]

Nothing in the WRDA or the Sandy Act limits the DEP's discretion

and authority to take perpetual easements. Accordingly,

Congress' limitation on the timeframe for financing projects

under the WRDA does not limit the DEP's authority to take a

perpetual easement.

2. Public Access

Appellants also argue that the DEP lacks authority to take

an easement that includes the right of public access and use.

The DEP counters that it has such authority and that the Army

Corps mandates public use of the project areas as a condition

36 A-3393-15T4
for federal funding. We hold that the DEP acted within its

discretion in including public access and use in the easements

and that authority for such access and use is contained in

N.J.S.A. 12:3-64 and the public trust doctrine.

Initially, it is important to define the scope of the

public access and use contained in the easements. Appellants

contend that the easements effectively create a public beach in

the area covered by the easements. The DEP responds that the

reference to a "public beach" in the easements does not mean

that the State is acquiring public ownership over the beaches.

Instead, the DEP argues that "federal law requires that public

funds for shore protection projects not be used to benefit

private lands from which the public is barred access." Further,

"to ensure full federal financial participation, the Army Corps

requires [the] DEP to acquire sufficient interests in privately

owned beaches to allow not only project construction, but use of

project areas by the public."

The easements themselves make clear that the property

owners retain ownership of, and the right to use, the area

covered by the easements. The easements also make clear that

the State of New Jersey, the relevant municipality, and "their

representatives, agents, contractors and assigns" can go on to

the easement areas and construct and maintain systems to protect

37 A-3393-15T4
against storm damage and prevent erosion. In that regard, the

easements state that the State and its representatives have

perpetual easements and right-of-ways to

[c]onstruct, preserve, patrol, operate,
maintain, repair, rehabilitate, and replace
a public beach, dune system, and other
erosion control and storm damage reduction
measures together with appurtenances
thereto, including the right to deposit
sand, to accomplish any alterations of the
contours on said land, to construct berms
and dunes, and to nourish and renourish
periodically[.]

The easements also allow for public use and access to the

easement areas. Specifically, the easements provide that the

State and its representatives have the additional right to

[p]erform any other work necessary and
incident to the construction, periodic
renourishment, and maintenance of the
[Projects], together with the right of
public use and access[.]

Read in full context, the easements give the State and its

federal partner, the Army Corps, the right to enter the areas

covered by the easements and construct and maintain systems to

protect against storm damage and prevent erosion. The easements

also give the public the right to "access and use" the easement

areas.

Appellants and the DEP dispute whether federal law mandates

public use and access. We agree with the DEP that the Army

Corps has interpreted its responsibility to include requiring

38 A-3393-15T4
public access and use of Project areas funded by federal monies.

Such a federal requirement, however, does not establish the

DEP's authority to acquire easements with public access and use.

Instead, the source of the DEP'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.

The New Jersey law that gives the DEP its authority to

include a public access and use requirement is N.J.S.A. 12:3-64.

By authorizing the DEP to acquire full title, that statute also

authorizes the DEP to acquire a lesser interest with a public

access and use right. In other words, because the DEP could

have taken title in fee simple, and thereby given the public the

right to have access and use of the land, the DEP also has the

"discretion" to take easements with a right of public access and

use.

Our interpretation of the ambit of rights granted by

N.J.S.A. 12:3-64 is supported by the evolution of the New Jersey

public trust doctrine. Under the New Jersey public trust

doctrine, the shores of New Jersey are open to public use and

access by "all on equal terms." Matthews v. Bay Head

Improvement Assoc., 95 N.J. 306, 322 (quoting Borough of Neptune

City v. Borough of Avon-by-the-Sea, 61 N.J. 296, 309 (1972)),

39 A-3393-15T4
cert. denied, 469 U.S. 821, 105 S. Ct. 93, 83 L. Ed. 2d 39

(1984); see also Raleigh Ave. Beach Assoc. v. Atlantis Beach

Club, Inc., 185 N.J. 40, 53 (2005) (explaining that, under the

public trust doctrine, the public's interest in "privately-owned

dry sand beaches" includes both "'a right to cross [such]

privately owned . . . beaches in order to gain access to the

foreshore . . . [and a] right to sunbathe and generally enjoy

recreational activities' on the dry sands" (alterations in

original) (quoting Matthews, supra, 95 N.J. at 322-23)).

The public trust doctrine has evolved and adapted to the

"changing conditions and needs of the public it was created to

benefit." Borough of Neptune City, supra, 61 N.J. at 309.

Thus, the public trust doctrine extends to "recreational

uses[,]" including the right of the public to access and use the

shore for "swimming and other shore activities." Ibid. "In

addition, limited use of the upland owner's dry sand is

permitted under the public trust doctrine when it is 'essential

or reasonably necessary for enjoyment of the ocean.'" City of

Long Branch, supra, 203 N.J. at 475 (quoting Matthews, supra, 95

N.J. at 325).

Moreover, when a publicly funded beach replenishment

project creates new dry sand lands, such lands are owned by the

State and are open to the public. Id. at 485. Accordingly,

40 A-3393-15T4
interpreting N.J.S.A. 12:3-64 to include the authority for the

DEP to acquire easements with public access and use rights, when

the public is funding the Projects, is consistent with the New

Jersey public trust doctrine.

While the DEP has such authority, it must provide "just

compensation" for such a taking. N.J. Const. art. IV, § 6, ¶ 3.

The commissioners appointed by the trial court in accordance

with the EDA will establish such compensation. N.J.S.A. 20:3-

12; see also N.J.S.A. 20:3-13 (setting forth the rights and

procedures for appealing the commissioners' award).

C. The DEP Complied with the EDA and Conducted Bona Fide
Negotiations

The North Beach 1003 and Frankenberg defendants argue that

the DEP failed to conduct bona fide negotiations as required by

the EDA. Defendants then make a series of arguments that the

DEP failed to do certain things in its interactions with the

North Beach 1003 and Frankenberg defendants. Accordingly,

defendants argue that the DEP's condemnation complaints should

be dismissed. We disagree. The record establishes that the DEP

satisfied the pre-litigation requirements of the EDA and engaged

in bona fide negotiations.

The EDA requires the condemnor to take certain steps prior

to commencing litigation. N.J.S.A. 20:3-6. Those steps include

41 A-3393-15T4
appraising the property and engaging in bona fide negotiations

with the property owners. Ibid.

Before making an offer, "the taking agency shall appraise

said property and the owner shall be given an opportunity to

accompany the appraiser during the inspection of the property."

N.J.S.A. 20:3-6; see also Borough of Rockaway v. Donofrio, 186

N.J. Super. 344, 351 (App. Div. 1982), certif. denied, 95 N.J.

183 (1983). Accordingly, the condemnor or its agent must send

written notice to the property owner at least ten days before

going to the property to conduct the appraisal. N.J.S.A. 20:3-

16.

The condemnor must then provide the property owner with a

written offer, "setting forth the property and interest therein

to be acquired, the compensation offered to be paid and a

reasonable disclosure of the manner in which the amount of such

offered compensation has been calculated[.]" N.J.S.A. 20:3-6.

In connection with that offer, the condemnor must engage in

"bona fide negotiations" with the owner. Ibid.

The purpose of these procedures is to facilitate the

acquisition without litigation and thereby save the parties time

and expense. Hous. Auth. of New Brunswick v. Suydam Inv'rs,

L.L.C., 177 N.J. 2, 15 (2003); State ex rel. Comm'r of Transp.

v. Town of Morristown, 129 N.J. 279, 285 (1992). Failure of the

42 A-3393-15T4
condemnor to comply with the pre-litigation requirements can

result in dismissal of the complaint. State by Comm'r of

Transp. v. Carroll, 123 N.J. 308, 316 (1991); Donofrio, supra,

186 N.J. Super. at 354.

Whether the negotiations between a condemnor and a property

owner satisfy the mandates of the EDA is a fact-specific

question, which should be evaluated on a case-by-case basis.

County of Morris v. Weiner, 222 N.J. Super. 560, 567 (App. Div.)

certif. denied, 111 N.J. 573 (1988). Generally, a condemnor and

the condemnee should deal with each other in a forthright

manner. F.M.C. Stores Co. v. Borough of Morris Plains, 100 N.J.

418, 426-27 (1985). The government entity should be candid.

"The reasonableness of pre-negotiation disclosure centers on the

adequacy of the appraisal information; it must permit a

reasonable, average property owner to conduct informed and

intelligent negotiations." Carroll, supra, 123 N.J. at 321.

Accordingly, "an appraisal should contain an explanation of the

valuation approach or methodology actually used." Ibid.

Negotiations, however, involve participation by both sides.

County of Monmouth v. Whispering Woods at Bamm Hallow, Inc., 222

N.J. Super. 1, 9 (App. Div. 1987) ("We would be short on realism

. . . were we not to note that it takes at least two to

negotiate and the record should be reviewed with that in

43 A-3393-15T4
mind."), certif. denied, 110 N.J. 175 (1988). Consequently, the

condemnor's duty to engage in extended negotiations can be

"tempered by a property owner's failure to cooperate." Carroll,

supra, 123 N.J. at 323; see also Borough of Merchantville v.

Malik & Son, LLC, 429 N.J. Super. 416, 430-31 (App. Div. 2013),

aff’d, 218 N.J. 556 (2014) (explaining that when the DEP makes

its best offer and a property owner is unwilling to engage in

negotiations, the DEP's obligation to engage in bona fide

negotiations is satisfied).

Here, the appraiser provided the property owners with

notice of the inspection and invited the owners to attend the

inspection. A few owners accepted that invitation, but many did

not. The DEP then provided the property owners with a written

offer and a copy of the appraisal. The appraisal explained the

methodology used and the offer letter identified the easement to

be taken. Moreover, the offer letters were sent in mid-

September 2015, and gave the owners fourteen days to respond.

Thereafter, attorneys for the property owners engaged in

communication with the attorneys for the DEP.

The North Beach 1003 defendants contend that the DEP did

not engage in bona fide negotiations because the discussions

were truncated and the DEP's offer was not its "best offer."

Specifically, the North Beach 1003 defendants contend that the

44 A-3393-15T4
offer did not compensate them for the creation of "a public

beach" on their properties and their loss of access.

The record establishes that negotiations took place, but

resolutions were not reached. The appraisals provided to the

North Beach 1003 defendants contained a detailed explanation of

the methodology that was used. The appraisals determined the

Projects would generally increase the value of properties by ten

percent. In making that determination, the appraiser used

studies of how the value of properties in nearby neighborhoods

had been affected by past beach replenishment projects. The ten

percent increase in value was then adjusted in each case to

reflect how the Projects would affect a particular property.

For example, reducing the valuation because the dune will

interfere with a property's view of the ocean.

These explanations of the methodology were sufficient to

allow for meaningful and intelligent negotiations.

Nevertheless, "[t]he condemning authority's obligation to

conduct good faith negotiations does not end with making an

offer and furnishing the appraisal on which the offer was

formulated." Borough of Merchantville, supra, 218 N.J. at 572.

"[T]he condemning authority may have an obligation to continue

to discuss the offering price when the response provides

45 A-3393-15T4
credible information supporting its opinion that the offer is

too low." Id. at 572-73.

Here, although defendants contended that the appraisal

methodology was flawed, they provided no credible information

supporting their opinion that the DEP's offer was too low. The

appraisals did not fail to consider the public access and use.

Instead, the appraisals valued the public use and access using

comparative studies of other neighborhoods that have undergone

beach replenishment projects. Defendants merely disagree with

those values.

The North Beach 1003 defendants also argue that the

appraisals failed to value the requirement for defendants to

acquire a permit for and construct walkovers on the dune to

access the beach. Those walkovers must be removed at the end of

each summer season. The appraisals, however, specifically

discussed how such walkovers would be necessary, indicating that

the need for and the seasonal nature of the walkovers were

considered in valuing the properties. Defendants, again, simply

disagree with these valuations. In short, there is nothing in

the record to support the contention that the offers were not

the DEP's best offers or that the DEP failed to engage in bona

fide negotiations.

46 A-3393-15T4
Since the DEP engaged in bona fide negotiations, any

further disagreement concerning the valuations of the takings

are matters to be addressed by the commissioners and, if

necessary and appropriate, further litigation. N.J.S.A. 20:3-

12; see also Suydam, supra, 177 N.J. at 16.4

The North Beach 1003 and Frankenberg defendants also argue

that the DEP did not negotiate with them. In that regard, they

contend that the DEP did not give them adequate time to prepare

their own appraisals. The reasonableness of a property owner's

request for more time to negotiate depends on the circumstances.

Weiner, supra, 222 N.J. Super. at 566. Here, the DEP was

acquiring easements to construct federally-funded projects that

will protect coastal residents and communities. Under these

circumstances, the DEP had the right to request reasonable

responsiveness in negotiations and when those negotiations did

not result in agreements, to proceed to litigation.

The Frankenberg defendants argue that the notice provided

by Mr. Hall did not constitute notice from the DEP. They then

4
The North Beach 1003 defendants cite to several unpublished
cases in support of their arguments concerning the DEP's alleged
failure to engage in bona fide negotiations. Unpublished cases
are not precedent and do not warrant discussion. R. 1:36-3;
Lippman v. Ethicon, 222 N.J. 362, 385 n. 5 (2015). We note,
however, that the unpublished cases cited by the North Beach
1003 defendants are distinguishable and do not support their
arguments.

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argue that the DEP did not engage in bona fide negotiations

concerning their loss of views. The record establishes that

Hall was acting as an agent for the DEP. It is undisputed that

the DEP sent Hall's appraisal together with its offer. The

record also establishes that it was the Frankenberg defendants

who failed to participate in Hall's appraisal. In short, the

DEP engaged in bona fide negotiations with the Frankenberg

defendants.

The Frankenberg defendants also argue that the DEP failed

to join indispensable parties. In that regard, they point to a

six-foot-wide walkway easement on the southerly edge of their

property. The DEP's title search did not disclose any holders

of a walkway easement on the Frankenberg property. While there

is apparently such an easement, the Frankenberg defendants did

not produce evidence of the parties that hold an interest in the

walkway easement. Consequently, all known parties with an

interest in the Frankenberg property were named in the DEP's

condemnation complaint.

Finally, the Frankenberg defendants claim that the DEP's

agreements with the Army Corps prevented the DEP from engaging

in bona fide negotiations. Nothing in the project coordination

agreements between the DEP and the Army Corps prevented bona

fide negotiations. While the agreements called for the DEP to

48 A-3393-15T4
use a federally-approved form of appraisal, nothing in that

agreement prevented the DEP from re-submitting the appraisal if

it negotiated a new form.

D. The Trial Court Properly Dismissed the Declaratory
Judgment Action Filed by the Ritter Appellants

The Ritter appellants sought a declaration that the DEP

lacked authority to condemn easements for shore protection

purposes. Given that we have rejected that argument, the trial

court properly dismissed the declaratory judgment complaint.

In summary, we affirm the trial court's final judgments

finding that the DEP properly exercised its power of eminent

domain and appointing commissioners to determine the value of

the takings. We also affirm the trial court's orders denying

the North Beach 1003, Frankenberg, and Cammarano defendants'

motions to dismiss the condemnation complaints and the order

granting summary judgment to the DEP on the declaratory judgment

action brought by the Ritter appellants.

Affirmed.

49 A-3393-15T4

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4180376. Public record. Not legal advice.