Judge sides with Margate in fight against dune

Score one for the beach bums of Margate in their quixotic fight against Gov. Christie's 127-mile sand dune.

In court in Camden on Thursday, U.S. District Judge Renee Marie Bumb told the state it can't just take Margate's land with an administrative order to expedite its shore protection project.

She ordered her temporary restraining order continued until at least Dec. 17, a setback for the state that, in effect, allows Margate to stand in the way of a $74 million portion of the project ordered by Christie.

Bumb's restraining order prevents the Department of Environmental Protection and the Army Corps of Engineers from awarding a contract on the Absecon Island project.

While not making a formal ruling, Bumb told the state its reliance on an administrative order filed with Atlantic County to seize municipal easements was "misplaced."

She urged the state instead to institute state court proceedings to condemn Margate's land, and seemed puzzled as to why it had not taken that route in the first place.

The state had argued that any delay jeopardizes the entire project, a signature of Christie's post-Sandy policy.

Assistant Attorney General David C. Apy told the judge the DEP could follow the state court eminent domain procedure only if bidders for the project agree to extend a deadline for the process, set to expire Dec. 31.

Assistant U.S. Attorney Anne Taylor, meanwhile, told the judge that the corps, which will build the dune and which brought several lawyers to the hearing, is not ready to give up on the "quick take" method of seizing land.

That issue will be further briefed in federal court, the judge said. Both Taylor and Apy declined further comment.

"The bottom line is there will be no bulldozers on the beach," said Robert E. Andrews, the former congressman who has been hired by the City of Margate to keep its beaches dune-free. His law firm, Dilworth Paxson of Philadelphia, is representing Margate in court.

He said the city was ready to negotiate with the state.

Christie ordered a dune to be built along the entire 127-mile coast, but has faced small but persistent resistance from homeowners in Bay Head (including a prominent national GOP fund-raiser) and Long Beach Island (including Shanin Specter, son of the late U.S. Sen. Arlen Specter).

Margate is the only municipality to officially resist the plan. Its voters twice approved ballot questions opposing the dune. The second authorized the city government to spend $200,000 on a legal fight.

Opponents have tried to frame the issue in political terms for the possible presidential candidate, arguing that Christie's efforts to unilaterally build a dune violate private property rights and other conservative principles.

Margate officials said they were pleased with Thursday's outcome, which could kick the issue into state court for a potentially lengthy eminent domain hearing.

They believe they can argue the state's "one size fits all" plan is too arbitrary to justify an involuntary taking. They also held out hope the state would now negotiate.

"We stand ready to negotiate in good faith toward a beach protection solution for the City of Margate that respects our city's unique circumstances and the will of our people," the city said in an afternoon statement that was more manifesto than news release.

Neighboring Longport, which suffered more beachfront damage from Hurricane Sandy, reversed a long-standing opposition to the dune after the storm and voluntarily gave its easements to the state.

Margate wants the state and the Army Corps to skip over it, arguing that its existing bulkhead system is sufficient, and that a big dune would negatively impact its beach and create hidden costs down the road. The city says Sandy's flooding damage mostly came from the bay.

The state claims Margate needs to be included or the other towns will not be adequately protected by the dune. It says it has the right to seize the land and figure out compensation later.

"We can take first," Apy told the judge, who did not agree.

"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, representing Margate, argued that the state did an end run to acquire municipal easements in order to proceed with awarding a contract for Absecon Island, from Atlantic City to Longport.

The judge said she agreed 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 it needs to award the bid.

The easements seized by the state involve street ends and other municipal land needed to take control of the beach for the replenishment.

They do not, however, involve Lucy the Elephant, assured Mayor Mike Becker. "Nobody wants to take Lucy," Becker said. "Lucy belongs to Margate."