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Judge rules Margate has right to hearing on dune plan

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

An October storm caused flooding at the Kenyon Street bulkhead in Margate.
An October storm caused flooding at the Kenyon Street bulkhead in Margate.Read moreED HILLE / Staff Photographer

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

Superior Court Judge Julio Mendez ruled Tuesday that Margate is entitled to a hearing in February on whether 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.

He ruled that Margate had made a "sufficient showing of arbitrariness" on the part of the state to warrant a hearing on whether the state abused its power in trying to force the dunes on the city.

Mendez said experts Margate produced made at least an initial case that beach fill and bulkheads - Margate's preferred protection alternatives - would offer the "same or more protection."

The judge cited "expert affidavits" 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."

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

The judge ruled that Margate had been denied its chance to object to the plan.

"All Margate is requesting is the opportunity to challenge the condemnation as permitted by New Jersey law," the judge wrote.

Although the hearing itself, scheduled for 9:30 a.m. Feb. 3 and 4 in the Atlantic City courthouse, will determine whether Margate can actually prevent the state from moving forward, the judge's ruling was declared a "victory for democracy" for the little beach town that roared - and was promptly labeled "selfish" by Gov. Christie.

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

Leland Moore, a spokesman for the attorney general, said he had no comment as it was a matter of pending litigation.

Following Hurricane Sandy, which sent additional funding into the state, Christie ordered a protective sand berm the entire length of the Jersey Shore as his signature Shore protection effort.

But he 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.

Outside counsel for the Department of Environmental Protection had asked Mendez to approve eminent domain seizure of the lots. But outside counsel for Margate argued that the city was at least entitled to an evidentiary hearing. Voters have twice voted in referendums to oppose the dunes.

Mendez wrote that the Sandy Relief Act does not require the project to be built, allows for an update and review process, and "at a minimum ... provides for some flexibility."

Mendez said Margate was not barred from challenging the taking on the basis that it did not object previously to the protection plan. The state's lawyer had argued that Margate should have objected two decades ago, when the plan was first discussed.

"The project lay 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, Mendez noted, which Margate promptly challenged in federal court.

Mendez's ruling suggested he would consider whether the dune plan was the only way to accomplish Shore protection.

The issue of bayside flooding has received increasing attention in recent months, challenging the state's efforts to portray the beachfront dunes as essential.

Margate also cited a loss of usable beach area that would undermine property values and lead to property tax appeals, and said costs of dune maintenance would "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 four.

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