December 7, 2007

To; Keith Watson, Project Manager,

LBI Beach Nourishment Project,

U.S. Army Corps of Engineers,

Philadelphia, PA District Office

David Rosenblatt, Administrator,

Office of Engineering and Construction

NJ Department of Environmental Protection

Dear Sirs;

I am writing to you on behalf of the Democratic Club of Long Beach Island (LBI), whose 150 plus members span the entire Island. We do not represent any particular group of property owners. Our only interest is in seeing the LBI Storm Damage Reduction Project succeed and serve the public’s safety and recreational interests.

We recognize the hard work done by your Offices in trying to move the Project ahead, but nevertheless I think you will agree that it is not progressing in the way that many had hoped. Our Club members have expressed concerns regarding both storm protection and recreational beach availability, and we have researched the Project in an attempt to offer some ways out of the apparent impasse facing us. We also are aware that some of the issues discussed below are in litigation, which may (or may not) resolve them. However we continue to believe that the preferred course here is through conciliation and cooperation, and, as you know, even the Superior Court Judge recommended that the parties revisit the easement language in that mode. We see no reason why both approaches cannot proceed in parallel.

In that spirit, we are proposing two changes to the easement language that we believe will make it acceptable to the great majority of beachfront property owners, while at the same time preserving and perhaps even strengthening-through clarification- the public rights you serve. As you know the great majority of beachfront property owners do not object to providing access to the Corps of Engineers (COE) to their privately owned dunes for the necessary construction and refurbishment work. The two areas of their concern that we focus on here are the “perpetuity” and the “right of public use and access” (to privately owned dunes) requirements. These pose the greatest obstacles to getting the easements signed. The rationale for each proposed change to those two requirements is presented below.

The rationale here is that many owners do not know why it is needed and that breeds suspicion. They see a project that, from an engineering standpoint, requires only intermittent access to their property with substantial time intervals between events but are asked to sign a “perpetual” easement. We are proposing some language in the Duration of Easement Section as an example below that we are confident you could improve upon;

As you know the current phrasing has caused considerable difficulty. It raises legal Constitutional issues regarding the taking of private property without compensation, and concerns over how it might be used in the future relative to beach access. Because of it, many beachfront property owners have not signed the easement, even though they want the Project to go forward. The rationale for our proposed change in the language follows.

There are two ostensible reasons for the current language. The first is to meet the federal spending test on private dune property and the second, following the introductory Public Trust Doctrine “Whereas” paragraph in the easement, to assure the right of public access to and use of the beach and ocean. As shown below, the spending test for the dunes can and should be met in other ways. Regarding beach access, the current language can be more precisely stated to remove homeowner concerns over it in the great majority of circumstances where it will not be needed to assure adequate beach access, and still preserve COE and NJ Department of Environmental Protection (DEP) authorities to act in those limited cases where it will be needed.

First regarding the spending test, we recognize that the language in PL 84-826(d) below requires the COE to meet certain criteria in order to provide federal assistance, and that the first “such as” example in the law (public use) has been used as the criteria for both beach and dune property.

But the public use criterion is just one of several that could be used. We believe the circumstances for beach and dune property are fundamentally different, and that using a different spending criterion for the private dunes is appropriate as explained below.

Regarding the beach, it is perfectly appropriate to use the public use criteria. In fact we believe that the original legislative intent of P.L. 84-826(d) in offering the public use test as an option as applied to “shores” was to prevent the use of federal monies on private beaches or beaches where public access was denied. This makes sense and we have noted that previous COE Regulations and Guidance documents use the terms “shore” and “beach” interchangeably, and the words “public use” to mean public recreational use of a beach.

Conversely, we cannot find support for the notion that the Congress intended this same public use criterion for providing federal assistance on private dune properties. This observation was reinforced by the Superior Court Judge’s questioning the wisdom of its application here. Further, using language that on its face allows the public access to private dunes that they aren’t allowed to go on anyway does not achieve any substantive purpose. In fact, applying the public use criterion to the dunes leads the COE and DEP to ask for the exact opposite (public dune access and use) of what you really should have to preserve the federal and State investment in the new dunes, which is no public dune access, use or alteration. When these types of disconnects occur we suggest that another spending criterion for the dunes is in order. Three options for alternate actions and spending test criteria are offered below.

1. The State and localities could pay for the work on the dunes from their 35 percent Project share, effectively removing the spending constraint language as a problem.

2. The legal test for spending federal monies can be met by reasserting the public protection benefit of the work done to the dunes. The public does not need actual “access” to or physical “use” of the dunes to derive that benefit. In fact such access is illegal. The public derives its benefit from the dunes because the dunes and beach together protect the entire Island from storm damage. This is inherent in the COE justification for the full Project.

3. The legal test for spending federal monies can be met because the actual benefit to the dune property itself is incidental when compared to the overall protection afforded to the Island by the dunes existence. The incremental increase in the value of private oceanfront property from work on the dunes is small compared to the dollar value of protecting all Island properties, businesses and tax revenues. The COE should evaluate this. It should also be noted here that the notion that oceanfront properties benefit “the most” from storm protection from dune work is not necessarily the case. The Island generally slopes downward from the back of the dunes to the Bay and a break in the dune protection would likely have the greatest impact on the Bayside.

With any of these alternate approaches, the broad public use and access language now in the easement is no longer needed to meet the federal spending test. It can now be clarified to fulfill its second purpose, which is to assure adequate beach access. The language can now be tailored to that purpose, as proposed above, by linking it to the Public Access Plans that will be required under DEP’s new beach access rules. Such Access Plans must lay out the access ways and other means to meet the rules, before construction work is permitted. By tying the language to the Public Access Plan it focuses the public use and access requirement on those relatively few private areas identified in the Plan where beach access is a problem. For those areas it still allows for DEP and COE access to the dunes to take actions to assure public access to and use of the beach.

On the other hand, for the great majority of beachfront property owners where adequate beach access is now, or can be provided in their immediate area- per the Access Plan- without the need to use their dunes, there should be little concern with this new language. By linking DEP and COE authority to the Plan it also alleviates homeowner concern over possible unanticipated future interpretations of the current broad language. This new language should therefore remove the widespread eminent domain and other concerns associated with the current public use and access phrasing, and open the door to many more homeowners signing the easement.

We hope you will find our suggestions to be constructive and would appreciate feedback on them. We believe that they clearly show that there are better paths to follow to get this Project moving forward than the one we are on, and we again urge at least until these paths can be explored, to keep these options open and not to incorporate the current easement public use and access language into the upcoming beach access rules. That would only make it more difficult to get things back on track.

We also recommend that you organize a working group, to include other interested parties, to work through these issues, in which we would gladly participate. If you have any questions or wish to arrange a meeting to discuss our suggestions further, please contact Bob Stern, our Vice-President at 609 492 3327.

Very truly yours

John Kostopoulos, President

Cc; Governor John Corzine

Commissioner Lisa Jackson, DEP

Lt. Col. Gwen Baker, Army Corps

December 7, 2007

To; Keith Watson, Project Manager,

LBI Beach Nourishment Project,

U.S. Army Corps of Engineers,

Philadelphia, PA District Office

David Rosenblatt, Administrator,

Office of Engineering and Construction

NJ Department of Environmental Protection

Dear Sirs;

I am writing to you on behalf of the Democratic Club of Long Beach Island (LBI), whose 150 plus members span the entire Island. We do not represent any particular group of property owners. Our only interest is in seeing the LBI Storm Damage Reduction Project succeed and serve the public’s safety and recreational interests.

We recognize the hard work done by your Offices in trying to move the Project ahead, but nevertheless I think you will agree that it is not progressing in the way that many had hoped. Our Club members have expressed concerns regarding both storm protection and recreational beach availability, and we have researched the Project in an attempt to offer some ways out of the apparent impasse facing us. We also are aware that some of the issues discussed below are in litigation, which may (or may not) resolve them. However we continue to believe that the preferred course here is through conciliation and cooperation, and, as you know, even the Superior Court Judge recommended that the parties revisit the easement language in that mode. We see no reason why both approaches cannot proceed in parallel.

In that spirit, we are proposing two changes to the easement language that we believe will make it acceptable to the great majority of beachfront property owners, while at the same time preserving and perhaps even strengthening-through clarification- the public rights you serve. As you know the great majority of beachfront property owners do not object to providing access to the Corps of Engineers (COE) to their privately owned dunes for the necessary construction and refurbishment work. The two areas of their concern that we focus on here are the “perpetuity” and the “right of public use and access” (to privately owned dunes) requirements. These pose the greatest obstacles to getting the easements signed. The rationale for each proposed change to those two requirements is presented below.

The rationale here is that many owners do not know why it is needed and that breeds suspicion. They see a project that, from an engineering standpoint, requires only intermittent access to their property with substantial time intervals between events but are asked to sign a “perpetual” easement. We are proposing some language in the Duration of Easement Section as an example below that we are confident you could improve upon;

As you know the current phrasing has caused considerable difficulty. It raises legal Constitutional issues regarding the taking of private property without compensation, and concerns over how it might be used in the future relative to beach access. Because of it, many beachfront property owners have not signed the easement, even though they want the Project to go forward. The rationale for our proposed change in the language follows.

There are two ostensible reasons for the current language. The first is to meet the federal spending test on private dune property and the second, following the introductory Public Trust Doctrine “Whereas” paragraph in the easement, to assure the right of public access to and use of the beach and ocean. As shown below, the spending test for the dunes can and should be met in other ways. Regarding beach access, the current language can be more precisely stated to remove homeowner concerns over it in the great majority of circumstances where it will not be needed to assure adequate beach access, and still preserve COE and NJ Department of Environmental Protection (DEP) authorities to act in those limited cases where it will be needed.

First regarding the spending test, we recognize that the language in PL 84-826(d) below requires the COE to meet certain criteria in order to provide federal assistance, and that the first “such as” example in the law (public use) has been used as the criteria for both beach and dune property.

But the public use criterion is just one of several that could be used. We believe the circumstances for beach and dune property are fundamentally different, and that using a different spending criterion for the private dunes is appropriate as explained below.

Regarding the beach, it is perfectly appropriate to use the public use criteria. In fact we believe that the original legislative intent of P.L. 84-826(d) in offering the public use test as an option as applied to “shores” was to prevent the use of federal monies on private beaches or beaches where public access was denied. This makes sense and we have noted that previous COE Regulations and Guidance documents use the terms “shore” and “beach” interchangeably, and the words “public use” to mean public recreational use of a beach.

Conversely, we cannot find support for the notion that the Congress intended this same public use criterion for providing federal assistance on private dune properties. This observation was reinforced by the Superior Court Judge’s questioning the wisdom of its application here. Further, using language that on its face allows the public access to private dunes that they aren’t allowed to go on anyway does not achieve any substantive purpose. In fact, applying the public use criterion to the dunes leads the COE and DEP to ask for the exact opposite (public dune access and use) of what you really should have to preserve the federal and State investment in the new dunes, which is no public dune access, use or alteration. When these types of disconnects occur we suggest that another spending criterion for the dunes is in order. Three options for alternate actions and spending test criteria are offered below.

1. The State and localities could pay for the work on the dunes from their 35 percent Project share, effectively removing the spending constraint language as a problem.

2. The legal test for spending federal monies can be met by reasserting the public protection benefit of the work done to the dunes. The public does not need actual “access” to or physical “use” of the dunes to derive that benefit. In fact such access is illegal. The public derives its benefit from the dunes because the dunes and beach together protect the entire Island from storm damage. This is inherent in the COE justification for the full Project.

3. The legal test for spending federal monies can be met because the actual benefit to the dune property itself is incidental when compared to the overall protection afforded to the Island by the dunes existence. The incremental increase in the value of private oceanfront property from work on the dunes is small compared to the dollar value of protecting all Island properties, businesses and tax revenues. The COE should evaluate this. It should also be noted here that the notion that oceanfront properties benefit “the most” from storm protection from dune work is not necessarily the case. The Island generally slopes downward from the back of the dunes to the Bay and a break in the dune protection would likely have the greatest impact on the Bayside.

With any of these alternate approaches, the broad public use and access language now in the easement is no longer needed to meet the federal spending test. It can now be clarified to fulfill its second purpose, which is to assure adequate beach access. The language can now be tailored to that purpose, as proposed above, by linking it to the Public Access Plans that will be required under DEP’s new beach access rules. Such Access Plans must lay out the access ways and other means to meet the rules, before construction work is permitted. By tying the language to the Public Access Plan it focuses the public use and access requirement on those relatively few private areas identified in the Plan where beach access is a problem. For those areas it still allows for DEP and COE access to the dunes to take actions to assure public access to and use of the beach.

On the other hand, for the great majority of beachfront property owners where adequate beach access is now, or can be provided in their immediate area- per the Access Plan- without the need to use their dunes, there should be little concern with this new language. By linking DEP and COE authority to the Plan it also alleviates homeowner concern over possible unanticipated future interpretations of the current broad language. This new language should therefore remove the widespread eminent domain and other concerns associated with the current public use and access phrasing, and open the door to many more homeowners signing the easement.

We hope you will find our suggestions to be constructive and would appreciate feedback on them. We believe that they clearly show that there are better paths to follow to get this Project moving forward than the one we are on, and we again urge at least until these paths can be explored, to keep these options open and not to incorporate the current easement public use and access language into the upcoming beach access rules. That would only make it more difficult to get things back on track.

We also recommend that you organize a working group, to include other interested parties, to work through these issues, in which we would gladly participate. If you have any questions or wish to arrange a meeting to discuss our suggestions further, please contact Bob Stern, our Vice-President at 609 492 3327.

Very truly yours

John Kostopoulos, President

Cc; Governor John Corzine

Commissioner Lisa Jackson, DEP

Lt. Col. Gwen Baker, Army Corps