Judge rules Margate may challenge state in dunes eminent domain case

Score another round to the city of Margate in its fight against Gov. Christie's efforts to construct a dune the length of the 127-mile coast.

Atlantic County Superior Court Judge Julio Mendez ruled Tuesday that the city of Margate is entitled to a hearing to argue the state abused its eminent domain power in attempting to take 87 city-owned lots needed to construct a beachfront dune in the shore town.

The judge cited "expert affadavits" that Margate had produced indicating that "there is an alternative to the state's proposed plan," and who "point to methodological flaws in the Army Corps initial study."

"We won," said Margate Mayor Mike Becker. "We got our day in court. I think we presented a very good case. The people of Margate don't want the dunes."

Gov. Christie had ordered a protective sand berm the entire length of the Jersey shore, but has been stymied by individual residents fighting the state's efforts to take easements, and, in the case of Margate, by an entire municipality opposed to his plan. Christie called the city "selfish" for opposing the project.

Outside counsel for the Department of Environmental Protection had asked Mendez to approve eminent domain seizure of 87 city-owned lots needed for the project.

But outside counsel for Margate had argued that the city was at least entitled to an evidentiary hearing on whether the state is abusing its power by building the dunes against Margate's wishes. Voters have twice voted in referendums to oppose the dunes.

Mendez scheduled hearings for Feb 3 and 4 at 9:30 a.m. in Atlantic City and said Margate is not barred from challenging the taking on the basis that they did not object previously to the state's shore protection plan. The state's lawyer had argued that Margate should have objected two decades ago when the plan was first discussed.

Mendez ruled that that Margate has made a "sufficient showing of arbitrariness" to warrant a hearing on whether the state had abused its eminent domain power. He said the experts Margate produced made at least an intitial case that beachfill and bulkheads _ Margate's preferred shore protection alternative to dunes _ would offer the "same or more protection."

And he said he was not persuaded that Margate is barred from challenging the condemnation action on the basis that "they have failed to timely exhaust their administrative remedies."

"The Project laid dormant for almost 20 years, and no adverse action was taken against Margate until the funding was renewed by the Sandy Relief Act," the judge wrote in his 25 page ruling. The first action taken by the state was to file administrative orders on Oct. 1, 2014 attempting to take the land that way, which Margate "promptly" challenged in federal court.

The judge ruled that Margate had been denied its chance to object to the state's plan for eminent domain and dunes. "All Margate is requesting is the opportunity to challenge the condemnation as permitted by New Jersey law," the judge wrote. "In this Court's opinion, Margate is entitled to have a hearing and enjoy the very due process that the federal court relied on when it set aside the administrative orders issued by the (state)."

Mendez cited affidavits from experts who noted that the Army Corps plan is relying on computer modeling run in 1993 that "does not account for 22 years of coastal change" and that "the Army Corps' analysis is unreliable because Margate's bulkhead system has worked so far."

Margate also cited a loss of usable beach area that will undermine property values and lead to property tax appeals, and that costs of dune maintenance will "substantially add to the City's tax burden." It also cited a reduction in the number of handicapped accessible beach access ramps from 16 to 4.

In all, the judge ruled that Margate had raised enough issues and made "a sufficient showing of arbitrariness" to warrant a limited hearing on whether the state can propertly use eminent domain to procede with a project Margate objects to.

Whether he ultimately rules that Margate can prevent the state's taking of the land will depend on a higher standard of proof of abuse of discrtion on the part of the state, Mendez wrote.

Mendez wrote that he set up the accelerated hearing schedule because he understands "the importance of resolving this issue as it has been pending for almost 20 years."

Leland Moore, spokesman for the state Attorney General, said he had no comment on the ruling as it was a matter of pending litigation, as did a spokesman for the Department of Environmental Protection.  Brian Murray in Christie's press office deferred comment to the Attorney General's office.

Mendez had said in the hearing he was inclined to grant Margate at least a limited hearing. He also said that just because Margate disagrees with the state's and Army Corps of Engineers' chosen method of coastal protection does not mean it can stop the state from proceeding.

Last month's hearing was the first time in 10 months that the warring government entities were in court together. Christie last month called the city "selfish" for opposing his coastal protection plan. Christie wants a dune system the length of the 127-mile coastline, financed through a $3.5 billion Hurricane Sandy aid bill.

The state and Margate previously sparred in federal court, when the state tried to seize the land through administrative order, trying to bypass a full hearing.

U.S. District Judge Renee Marie Bumb in Camden had ordered the state, then represented by deputy attorney generals, to pursue the case in state court to give Margate due process. Ten months later, the state did so, filing eminent domain action against the city and 10 of its homeowners. But it also filed a request to bypass any hearing and have the judge issue a summary ruling.

Stephen M. Eisdorfer of the Princeton-based Hill Wallack law firm argued on behalf of the state that neither Margate nor the judge gets to second-guess the Army Corps and Congress at this point.

The judge noted that courts are predisposed to giving parties their day in court, if only to eliminate ground for an appeal.

Mendez also noted that the plan dates back two decades. "It's pretty hard to argue that time is of the essence when this has been going on for 20 years," Mendez told the state's attorney.

Mendez wondered if the state was "waiting for Sandy to come around" during 10 years the project was on hold. Eisdorfer said money had dried up until after Sandy.

But the judge also said it wasn't clear if Margate could have a say in a coastal protection design set forth by the Army Corps.

Tom Biemer, the Dilworth Paxson attorney hired by Margate after voters approved a $200,000 budget to fight the dunes, continued to press Margate's contention that the bulkhead system already in place is enough to protect its oceanfront.

Dunes would only complicate the flooding that mostly comes from the bay side, he told the judge, and detract from the beaches.

Both sides agreed the issue was not whether the state's actions were for a public purpose.