DEP Has the Power to Condemn Property, Take Perpetual Easements to Protect the Shore, and Allow Public Access to Easement Areas

State of New Jersey, Department of Env. Protection v. North Beach 1003, LLC, 451 N.J. Super. 214 (App. Div. 2017).  Beach access has long been an important and controversial issue in New Jersey.  After Superstorm Sandy in 2013, the New Jersey Department of Environmental Protection (“DEP”) partnered with the federal Army Corps of Engineers, pursuant to the Disaster Relief Appropriations Act of 2013, Public Law 113-2, 127 Stat. 4, to replenish beaches and construct dunes in order to protect the shoreline.  The DEP had the responsibility of obtaining properties or easements necessary for that work.  If property owners did not agree to convey property or grant easements, the DEP sought to take property rights by eminent domain.

Condemnation litigation by the DEP, and a declaratory judgment action by certain property owners, seeking a ruling that the DEP lacked condemnation authority, followed.  The DEP won all that litigation at the trial level.  Today, the Appellate Division affirmed that result in an opinion by Judge Gilson in these consolidated cases.  The issues of law presented received de novo review, while the lower court’s findings of fact were accepted unless “manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence.”

The biggest issue was whether the DEP had the power of eminent domain.  Judge Gilson observed that eminent domain is a power given by the New Jersey Constitution to the Legislature.  The Constitution also permits the Legislature to delegate that power to state agencies or municipal subdivisions.  N.J.S.A. 12:3-64 allows the DEP to “acquire title, in fee simple,” by eminent domain, “to any lands in the State, including riparian lands, of such area and extent which, in the discretion of the department, may be necessary and advisable.”  Another statute, N.J.S.A. 12:6A-1, empowers the DEP to protect beaches.

The property owners argued that, by referring to “fee simple,” N.J.S.A. 12:3-64 precluded the DEP from using eminent domain to obtain easements, a lesser interest.  Judge Gilson did not agree.  “The word ‘extent’ supports the interpretation that the DEP has the discretion to acquire a lesser interest than a full fee simple,” and the Eminent Domain Act (“EDA”) confirmed that result.  Such power was also “implicit in N.J.S.A. 12:3-64,” since administrative agencies have not only the powers expressly granted to them, but also incidental powers reasonably necessary to effectuate those express powers.

The panel also rejected the argument that N.J.S.A. 12:3-64 did not permit the DEP to take lands to protect the shore from damage.  Among other things, a prior case, State v. Archer, 107 N.J. Super. 77 (App. Div. 1969), had ruled that the DEP’s predecessor had the power to condemn lands for hurricane and shore protection.  The Legislature had not amended the statute since then, or expressed disapproval of Archer.  On the contrary, the Legislature actually expanded the DEP’s shoreline protection powers after Archer.  All this showed that the Legislature intended to allow the DEP to take land to protect the shore.

The property owners also contended that the DEP lacked the power to take a perpetual easement.  That argument did no better with Judge Gilson.  He observed that a fee simple interest, which the statute expressly authorizes, is perpetual.  And the “extent” language in N.J.S.A. 12:3-64 defeated the property owners in this regard too.

Finally, Judge Gilson rebuffed the argument that the DEP had no power to allow public access to the easement areas.  Judge Gilson cited and discussed the “public trust” doctrine, which by itself undid the property owners’ contention.

The remainder of the opinion addressed whether the negotiations that preceded the condemnation litigation were conducted in bona fide fashion by the DEP, as required by the EDA.  Judge Gilson found no impropriety by the DEP.

Since the DEP was entitled to do what it did, the Appellate Division affirmed the trial court’s judgment appointing commissioners to determine the value of the property taken.  The panel also upheld the dismissal of the declaratory judgment action brought against the DEP.