The beach town of Margate and its Philadelphia law team has scored a victory in federal court against Gov. Christie's plan to build one big dune along the state's coast. U.S. District Judge Renee Marie Bumb told the state Department of Environmental Protection on Thursday that its reliance on an administative order to seize municipal easements was "misplaced."
She extended a Temporary Restraining Order that bars the state from awarding a contract for the beach protection project until Dec. 17 and urged the state in the meantime to institute legal proceedings to condemn Margate's land in state court. The state had argued that any delay jeopardizes the entire project.
Assistant Attorney General David C. Apy told the judge the state could only do that if bidders for the project agree to extend a deadline for the process, now set to expire on Dec. 31. Assistant U.S. Attorney Anne Taylor told the judge the U.S. Army Corps of Engineers, which will build the dune, is not ready to give up on this "quick take" method of seizing land. That issue will be further briefed in federal court.
Margate attorneys were pleased with the outcome, which kicks the issue into state court for a potentially lengthy eminent domain hearing. They believe they can argue the state's "one size fits all" dune plan is too arbitrary to justify an involuntary taking. Christie ordered a dune to be built along the entire 127-mile coast, but has faced persistent resistence from homeowners in Bay Head (including, awkwardly, a prominent GOP fundraiser) and Long Beach Island (including Shanin Specter, son of the late U.S. Sen. Arlen Spector.) Margate is the only municipality to officially resist the shore protection plan.
"The bottom line is there will be no bulldozers on the beach," said Robert Andrews, the former Congressman, who has been hired by the city of Margate to keep its beaches dune-free. Neighboring Longport, which suffered more beach front damage from Sandy, reversed a long standing opposition to the dunes after the hurricane and voluntarily gave its public easements to the state to use.
Margate, whose voters twice passed referendums opposing a dune for their town, wants the state and U.S. Army Corp to skip over them in its dune project, arguing that their existing bulkhead system is sufficient and that a big dune would negatively impact their beach and create hidden costs down the road.
The state claims that would jeopardize the effectiveness of the rest of the project, and they have the right to seize the city's land to complete the project. "We can take first," said Apy, arguing that the state's seizing land by administrative order instead of a full eminent domain court proceeding was legal and justified.
"The state views Longport and Margate and Ventnor as at risk, especially Longport," Apy said. "Taking Margate out of the middle changes all the economics. We can't do the others without Margate."
Attorney Thomas Biemer argued that the state had done an "end run" to acquire municipal easements in order to proced with awarding a contract for the $74 million project along Absecon Island, running from Atlantic City to Longport. The state said they planned to figure out compensation for Margate, but had failed to go into state court and file an eminent domain condemnation proceeding. The state relied upon Title 12 instead, which authorizes the taking of land for such uses, but does not specify how that could be done.
The judge said she agreed with Margate that the state had improperly seized the land, but declined to issue an official ruling to that effect. Instead, she adjourned and sent the state to find an alternate way to get control of the land they need to award the bid for the project.
- Amy S. Rosenberg