By NANETTE LoBIONDO GALLOWAY
LONGPORT – After months of wrangling with New Jersey regulations and reporting systems, the borough’s Board of Commissioners passed a resolution Jan. 16 to ask the NJ Department of Environmental Protection for an exemption from a requirement that it have a “department approved” Municipal Public Access Plan.
According to city officials, the municipality sent the DEP documentation suggested in an online “template” provided by the state, but the DEP has not approved it.
Having an approved plan is a requirement for the borough to obtain a general permit to maintain the beach and new dune system.
The borough is working two paths to obtain the DEP’s approval, solicitor Pacifico “Pat” Agnellini said. It will submit additional information requested when the plan was reviewed, and it will request the state issue an exemption from the regulation along with a temporary permit to maintain the beach.
A check of the NJ DEP websites shows that of the 231 municipalities eligible to create a plan, 48 submitted reports but only four have been approved. The purpose of the plan is to alert the public about beach access points and amenities offered. The plans are posted on the DEP website for public information and review.
Engineer Richard Carter said the borough provides beach access at every street end, which far exceeds published regulations, and has never received any complaints from the public about the lack of access to the beach.
“Communities that meet or exceed Public Access requirements should be exempt from the requirement of a ‘Department Approved’ Public Access Plan,” Longport’s Resolution 2019-15 states.
The plan would, however, require the borough to purchase and install new signage at every access point, Carter said.
The DEP requires municipalities to show they comply with the Public Trust Doctrine, which states access to bodies of water, including the bays, rivers and oceans are open to everyone. That’s not the case in many towns in North Jersey where private property owners want their beaches to be private, Agnellini said.
“They needed a rule for everybody and that rule is what everybody got. We should not be subject to that rule because we don’t have that problem,” Agnellini said.
Longport is not the only Downbeach municipality required to provide an access plan. The state does not have deadlines for towns to submit plans, but according to DEP Spokesman Larry Hajna, an expiring beach and dune maintenance permit obliges towns to submit a plan in order to obtain a new permit.
According to Ventnor City Public Works Supervisor and engineer Ed Stinson, the city provides information to the DEP about access points, parking and location of restrooms as part of its beach replenishment agreements.
“If something else is coming, I’m not aware of it,” he said in a telephone interview Tuesday morning.
He said the state may want assurances that parking spaces and access points will not be eliminated.
Ventnor has beach-block parking and rest rooms at Suffolk and Newport avenues.
Although Longport does not allow parking on the beach blocks, except for a few handicapped parking spaces, it does provide parking along Atlantic Avenue near Beach Patrol Headquarters. The borough also added parking spaces along Atlantic Avenue near Longport Point, an area where parking had been restricted to the off-season.
Margate Mayor Michael Becker said he is not aware of the reporting requirement, but that may be because the U.S. Army Corps of Engineers has yet to complete the entire dune project. Contractors are on site working to install the last of five stormwater outfall pipes to prevent the flooding that occurred behind the dune when it was first erected.
“We haven’t signed our final document to accept responsibility for maintaining the beach,” Becker said last week.
Maintenance of the beach is paramount to the public. Before summer, mats must be returned to the overpasses, signage installed, walkways cleared of blowing sand, and daily cleaning of the beach is necessary.
“Our Public Works guys are really concerned they won’t be able to get on the beach,” Longport Commissioner Dan Lawler said, asking if the borough could obtain a temporary maintenance schedule to get beaches ready for the summer.
Carter said it is very “frustrating” to have to deal with the state’s “excessive regulations.”
“The information is in the plan we gave to them,” Carter said. “You have someone at the state who is not familiar with municipal government, has no idea what the real world is like, has no idea what legal issues there are, and says ‘I don’t think it meets the intent’ of the ordinance. It’s very frustrating for professionals like Pat and I to deal with these people who are unlicensed and not trained and relegate it out of a book.”
According to the DEP website, the public has the right to access the seashore based on the Public Trust Doctrine, a law decreed in 500 AD by Roman Emperor Justinian. The doctrine states that the public has the full right of access to tidal waters, which is held in trust by the state for the peoples’ benefit for commerce, navigation and recreation.
Longport Mayor Nicholas Russo also received a notice of violation for installing pilings on the beach at several locations without first obtaining a CAFRA permit. The pilings, which have been used to get lifeboats out of harm’s way during storms since the 1960s, were removed to accommodate the beach project, Carter said. The Public Works Department has since reinstalled them.
“They were removed by Army Corps and they offered to replace them, but we said no because we weren’t sure where the new Beach Patrol chief wanted them,” Carter said.
The borough must now apply for a CAFRA permit from the Division of Land Use Regulation showing the structures were previously authorized or the borough must remove them to “pre-disturbance condition.”
In a memorandum to Carter, Rebecca Hill of the DEP indicated the public access plan should provide the locations for surfing, kayaking, fishing and other water-related activities. The municipality must also conduct a needs assessment to assure the public is being served.
Under its agreement with the U.S. Army Corps of Engineers for the dune project, “We are obligated to maintain the beach,” Carter said.
Hajna said the DEP’s Public Access Rule was first adopted in 2012 to allow towns to decide how they would provide public access.
“The purpose of the new approach is to allow towns to provide the DEP with their vision of public access, lay out what access currently exists, what needs they have for public access, and their plans for how they would like public access to be in the future,” Hajna said. “The idea is to be less proscriptive and foster state-local partnerships in improving beach access.”
The MPAP process was challenged in court and overturned in 2015, and the DEP modified it in 2017, Hajna said.
“Under the rule, municipalities need to have MPAPs in place in order to qualify for a general permit to maintain their beaches and dunes,” Hajna said. “If they don’t have an MPAP in place, they can still apply for an individual permit, which is more expensive and takes longer to review and process.”
Because Longport is required to have a permit to maintain the beach and dune, it can apply for either permit, Hajna said.
He said the borough can apply for an individual permit for the lifeboat pilings.
Russo said he would attend a meeting with the DEP on Jan. 31 to discuss which route the borough should take.
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