Beach replenishment cases need judge's oversight, attorney says

With hundreds of court challenges possible over easements for beach replenishment, an attorney for some oceanfront homeowners has asked a judge to allow an early conference on potential issues. Watch video

With the potential for hundreds of legal skirmishes on the horizon over beach replenishment in New Jersey, an attorney representing oceanfront homeowners wants a Superior Court judge to get more closely involved in the case.

But the request to have Judge Marlene Lynch Ford manage New Jersey's fight to get the access rights to the hundreds of beachfront properties needed for rebuilding beaches is too premature and should not be granted, attorneys for the state contend. 

Because Ford most likely will have to address the same few issues in potentially 350 cases over beach replenishment access, she would be better off stepping into the management of the case sooner rather than later, John Buonocore Jr, attorney for some of the property owners, wrote in a letter to the judge last month.

Specifically, he requested a court conference among attorneys representing the state Department of Environmental Protection, the affected Shore towns and the property owners.

"The courts will soon be presented with (the) task of resolving these questions in dozens if not hundreds of cases," Buonocore wrote in his Nov. 16 letter to Ford. "Thereafter, the potential for overlapping if not redundant discovery requests, varying and inconsistent presentations of the issues and inconsistent and conflicting results is unmistakable. Active involvement by the court in advance of these cases becoming an unmanageable jumble is warranted."

Condemnation of property rights starting in LBI beach replenishment case

Gov. Chris Christie ordered the beach replenishment as part of a massive shore protection project following Hurricane Sandy's destruction in 2012.

Statewide, there are a total of 350 easements still not signed. The law firm for which Buonocore works, McKirdy & Riskin in Morristown, represents 48 of the 176 property owners who have not signed easements giving the U.S. Army Corps of Engineers access to 283 properties to widen the beaches and build 22-foot high dunes in northern Ocean County alone.

And Buonocore says it's likely all of those who haven't signed easements will challenge the DEP in court.

At least one of the issues the court will have to decide, Buonocore said, is whether the DEP or municipalities even have the authority to require oceanfront property owners to forever give up rights to a portion of their property in those easements in order to build a public beach.

He said he legally can't ask for cases to be consolidated - which would in a sense force case management - because none of his clients has had eminent domain proceedings filed against them yet.

"A management conference with the court, we submit, is requested as a matter of judicial economy and in the public interest," Buonocore wrote.

But assistant attorney general David Apy said involvement by the court at this stage could hinder the state's success at negotiations with the property owners. He said the more appropriate time for the court to get involved is in what's called the valuation stage, when the parties decide how much the property owner should receive in return for giving up the rights to the piece of beachfront land.

Apy contended case management at this time would be "contrary" to the way the state's eminent domain laws are set up, which involves courts in the later stages of the process.

"Although the DEP agrees that case management may be appropriate at the valuation stage of eminent domain proceedings, case management as to any other issues would be premature, contrary to the public interest and inconsistent with the procedural requirements of the Eminent Domain Act," Apy wrote in his Nov. 25 response letter.

He said 50 condemnation actions have been filed so far in Ocean County. The state still needs 124 easements in Bay Head and 68 easements in Point Pleasant Beach - but property owners in both those towns have dug in their heels and refused to sign, making a court battle almost certain.

The public-use issue would not be pertinent to all the cases, he argued.