www.lbidemocrats.com 
P.O.
Box 11, Ship Bottom, NJ
_______________________________________________________________________
November 10, 2008
Lt. Colonel Thomas J. Tickner
U.S. Army Corps of Engineers
Wanamaker Bldg.
100 Penn Square East
Philadelphia, PA 19107
Dear Colonel Tickner,
On December 7, 2007 we wrote to your staff proposing constructive changes to the current easement language policy to remove the impasse facing the Long Beach Island (LBI) beach replenishment project (Enclosure 1). We never received a response. Additionally, as you know, two New Jersey Courts have now interpreted the Army Corps of Engineers (COE) easement requirement for public use of privately owned dune properties as a taking of those properties requiring compensation to owners. Our conservative estimates indicate that such compensation would exceed the construction costs of the Project itself. It is implausible to us to think that the Congress intended its statutory language to be interpreted in such a manner as to lead to this result. Therefore we are again proposing a change in COE policy to break this impasse, and are requesting your personal attention to this serious storm safety and economic issue.
Background,
The beaches and dunes on LBI are eroding at an alarming and seemingly increasing rate. Normal high tides now routinely reach and erode the base of the dunes in many places. Remaining dunes were eroded substantially from the high wind and tides of May 12-13, 2008 ( pictures in Enclosure 2). Beach space is limited, or non-existent now in some areas. Vulnerability to flooding throughout the Island in a severe storm or hurricane is increased without adequate dune protection.
However while the dunes are being lost to the sea, available funding sits idle because the beach replenishment project is essentially stopped by what we, and others with far more legal experience, consider to be ill-conceived and counterproductive interpretations of the law by the COE legal staff.
LBI beachfront property owners are not foolish. They are willing to sign the easements allowing for the needed construction and maintenance work on the privately owned dunes. The impasse comes from current easement language requiring public use and access to those private dunes properties, which is regarded by two levels of New Jersey Courts so far as a taking by the government of those dune properties. This raises the problem of eminent domain procedures and compensation for all the beachfront properties, not just those few where that might be required to assure adequate beach access by the public. In the Trial Court the presiding judge even went so far as to question “the wisdom of” the current legal interpretations by the Army Corps legal staff that calls for this requirement. Further, as a practical matter, it is not possible to compensate hundreds of beachfront properties under eminent domain procedures. The amount of money required, even under conservative estimates would be beyond the construction cost of the Project itself. No government entity would (or should) provide that sum of money, and the use of precious federal funds for such compensation is clearly not the end result that the Congress intended in its legal direction to the COE.
Current Federal Law,
The relevant federal legal requirements that constrain federal spending on private “shores” are provided below.
Public Law 84-826 (1956); Section 426e. (d) Shores other than public;
Shores other than public will be eligible for Federal assistance if there is benefit such as that arising from public use or from the protection of nearby public property or if the benefits to those shores are incidental to the project, and the Federal contribution to the project shall be adjusted in accordance with the degree of such benefits.
Amended by P.L. 99-662(1986); Section 103(d) specifies that the cost of constructing projects for beach erosion control must be assigned to selected project purposes such as hurricane and storm damage reduction, and/or recreation. Cost sharing for these project purposes is specified in Section 103 (C)(35 % state share for hurricane and storm damage reduction). However all costs assigned to benefits to privately owned shores (where use of such shores is limited to private interests), or to prevention of losses to private lands are a non-federal responsibility. All costs assigned to protection of federally owned shores are a Federal responsibility.
The Army Corps Staff Interpretation of Federal Law.
As its basis for its’ easement language, the COE has taken the federal language regarding “public use” in Section 426(e) that was designed (appropriately) to assure that federal funds were not used for or to benefit private beaches, and applied it to private upland dunes. We believe this application is inappropriate, both legally and practically for the following reasons,
First there is no legislative history supporting the application of the public use phrase to upland (not covered by the Public Trust Doctrine) property, and even COE regulations that followed the enactment of the law applied this language to beaches, not dunes.
Second, as mentioned above, this new application has raised issues of the taking of private property and eminent domain procedures and compensation for all the beach front properties, not just those few where that might be required for beach access by the public. The Trial Court ruled on November 24th, 2006 that such language in the easement constitutes a government taking of the property requiring eminent domain process and compensation. The NJ Appeals Court upheld this ruling on July 15, 2008.
Third, we do not believe that this draconian and costly approach is what the Congress intended. Alternatives were presented to the COE in detail in our letter to both the NJDEP and the COE of December 7, 2007, Enclosure 1. The COE position on the easement language is presented in a letter from Craig Homesley dated February 13,2006, Enclosure 3. The statements of the Trial Court judge, Vincent Grasso, in his decision, questioning “the wisdom of” the legal interpretations leading to the easement language are presented in Enclosure 4, page 65.
To change course here to something reasonable that meets the obligations of all parties, we propose that the COE revise it’s current policy to allow for the LBI situation without triggering a government taking of the beachfront properties. We believe that the current law allows the COE ample flexibility to do so. If you feel such a change warrants a rule change, the core of such a change is proposed below.
Suggested Regulatory Language,
As presented in Enclosure 1, we and others believe that the current federal law language is flexible enough to allow the COE to meet the legal spending criteria for the dunes without requiring a public taking of all beachfront dune properties. The language just below is suggested as an addition to existing regulatory language. It is specific to the situation at hand and attempts to give meaning to the word “use” in regard to privately owned, but restricted from use dunes that are found to be an essential component of a beach protection project. 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 on LBI 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 Army Corps justification for the full Project. The two paragraphs below in bold italics below placed into Army Corp’s rules would clarify this.
“When privately owned dunes protect a public beach and are essential to the project, the public benefit criteria of Section 426(e) shall be considered to be met as long as there is adequate public access to the beach.”
The above paragraph redirects the “public use” option in Section 426(e) back to the beach where it was intended. Also in New Jersey where the State has recently adopted beach access rules, the latter part of the language assuring public access to the beach could be made more specific by tying it to those rules.
“When the private dune owner is also restricted by State or local law from developing, altering or accessing the dune itself then the use of such dunes shall not be considered to be limited to private interests for the purpose of Section 103(d)”.
The above paragraph addresses the requirement in Section 103(d). We recommended in our December 7, 2007 letter that the federal funding problem could be removed by the State funding of the work on the dunes. However for reasons we cannot fathom neither party has embraced or even attempted to explore that solution. Therefore this paragraph would create flexibility for the COE to partially fund dune work by reaffirming that when local or State law prohibits use of the dune by the owner, then the test in parenthesis in 103(d) triggering the Army Corp’s funding restriction, i.e.; that the “use of such shores is limited to private interests” cannot logically be met.
With this language in rulemaking, the federal spending test for the LBI dune properties would be met for those areas where there is adequate beach access, and there would be no reason for the COE to include their current dune public use and access requirement in the easement for those areas. That removal will open the door to the signing of the easement by the beachfront property owners, and allow the Project to proceed. Such areas currently cover about 16 of the 18-mile Island length. The other 2-mile area will have to meet beach access requirements to qualify for the revised easement.
Request for Your Sponsorship of this Policy Change
Our club members and many other Island residents and visitors are extremely concerned that the erosion may soon reach a point of no return. We are appealing to you to pursue the change suggested, and in general provide the leadership to free up this project before it is too late to save the Island’s beaches and dunes.
We look forward to a hopeful response, and are also requesting a meeting with you personally so we can explain the full dimensions of this situation, and answer any questions you might have.
If your staff have any questions in the interim, please feel free to call our Vice-President, Bob Stern, at 917 952-5016.
Sincerely
John Kostopoulos, President
Democratic Club of Long Beach Island
Enclosure 1, December 7, 2007 letter to the Army Corps and the NJDEP.
Enclosure 2, Dune Erosion Pictures, Beach Haven, NJ
Enclosure 3, Letter from Craig Homesley, Army Corps
Enclosure 4, New Jersey Trial Court Judge Decision
Cc, Governor Jon Corzine
Congressman –Elect John H. Adler
John Podesta, Co-Chair, Presidential Transition Team
May 22, 2008
Senator Robert Menendez
One Gateway Center,
Suite 1100
Newark, New Jersey 07102
Dear Senator Menendez,
This is a follow up to our letter to you of December 10, 2007. In that letter we advised you of proposals
we were making to the Army Corps of Engineers to change their easement language to remove the impasse
facing the Long Beach Island (LBI) beach replenishment project. We also indicated that if they were
unresponsive we would return to you for legislative recourse at the federal level. They were and we are.
Background,
The beaches and dunes on LBI are eroding, at an alarming and seemingly increasing rate. Normal high tides
now routinely reach and erode the base of the dunes in many places. Remaining dunes were eroded substantially
just from the recent high wind and tides of May 12-13 ( see pictures in Enclosure 1). Beach space is very limited, or
non-existent now in some areas. Vulnerability to flooding throughout the Island in a severe storm or hurricane is
increased without adequate dune protection.
Your Office has, we know, worked hard to secure federal funding for the LBI beach replenishment.
However while the dunes are being lost to the sea, that money sits idle because the beach replenishment
project is being obstructed by ill-conceived and counterproductive interpretations of the law by the Army
Corps of Engineers, and the New Jersey Department of Environmental protection (NJDEP).
Beachfront property owners are willing to sign easements allowing for the needed construction and maintenance work on the privately
owned dunes. The difficulty comes from easement language requiring public use and access to those private dunes properties, which
is regarded by New Jersey Courts as a taking by the government of those dune properties. This raises issues of eminent domain
procedures and compensation for all the beachfront properties, not just those where that might be required for beach access by
the public. The NJDEP claims that the Army Corps is the source of this easement requirement. Since all appeals to the Army
Corps for reason- by local groups such as ourselves and even the presiding Trial Court judge who questioned “the wisdom of” their
legal interpretations – have failed, the only recourse we see is to clarify the existing federal law in such a way that the Army Corps
cannot misconstrue it. We are appealing to you to sponsor and work to enact that legal change.
The Current Federal Law,
The current most relevant federal legal requirements that constrain federal spending on private “shores” are
provided below.
Public Law 84-826 (1956); Section 426e. (d) Shores other than public;
Shores other than public will be eligible for Federal assistance if there is benefit such as that arising from public use or from the protection
of nearby public property or if the benefits to those shores are incidental to the project, and the Federal contribution to the project shall be
adjusted in accordance with the degree of such benefits.
Amended by P.L. 99-662(1986); Section 103(d) specifies that the cost of constructing projects for beach erosion control
must be assigned to selected project purposes such as hurricane and storm damage reduction, and/or recreation. Cost sharing
for these project purposes is specified in Section 103 (C)(35 % state share for hurricane and storm damage reduction).
However all costs assigned to benefits to privately owned shores (where use of such shores is limited to private interests), or to
prevention of losses to private lands are a non-federal responsibility. All costs assigned to protection of federally
owned shores are a Federal responsibility.
The Problem Created by the Army Corps of Engineers Interpretation of Federal Law.
The issue is described in detail in our letter to both the NJDEP and the Army Corps of Engineers
of December 7, 2007, Enclosure 2. The Army Corps position on the easement language is presented
in a letter from Craig Homesley dated February 13,2006, Enclosure 3. The statements of the Trial
Court judge, Vincent Grasso, in his decision, questioning “the wisdom of” the legal interpretations
leading to the easement language are presented in Enclosure 4, page 65.
As its basis for that easement language, the Army Corps has unwisely taken federal law language
regarding “public use” that was designed (appropriately) to assure that federal funds were not used
for private beaches, and applied it robotically to private dunes. Even Army Corps regulations that
followed the enactment of the law applied this language to beaches, not dunes. As mentioned above,
this new application has raised issues of the taking of private property and eminent domain procedures
and compensation for all the beach front properties, not just those few where that might be required for
beach access by the public. We do not believe that this draconian and costly approach is what the Congress
intended, because the current law, though the phrase “such as”, clearly presents the public use criteria as
just one of several that could be used. Such alternatives were presented to the Army Corps in Enclosure 2,
but they will not pursue them.
The NJDEP Approach,
The NJDEP attitude here is not helpful and irresponsible. They claim it is the Army Corps of Engineers
that is insisting on the language regarding public use and access to the privately owned dunes in the
easement. But instead of putting pressure on the Corps to change their approach, the NJDEP says that
they will not change the easement language -- even if they lose again in New Jersey Court.
They just will not do the project anywhere the beach front property owners will not sign the
current easement language, even if those owners are legally correct in their objections.
They will "take the money" to other areas of the State, despite the fact that our federal representatives
have fought hard for federal beach replenishment funds for LBI. They seem content to let the Island's
beaches erode until the ocean takes more of the dunes and the beachfront property owners panic and
sign up. There is seemingly little concern regarding increased vulnerability to storm damage,
diminished public beach availability and tourism, and increased project cost while this coercive
risky approach allegedly happens. This lack of respect for both New Jersey law and preserving
the environment is difficult to reconcile from a Department responsible for both, and whose Commissioner
has referred to New Jersey’s beaches as a “national
treasure” in testimony before the Congress.
Suggested Legislative Language,
As presented in Enclosure 2, we and others believe that the current federal law language is flexible enough to
allow the Army Corps to meet the legal spending criteria for the dunes without requiring a public taking of all beachfront
dune properties. However they apparently do not, so the only recourse is to clarify the law for them.
The language just below is suggested as an addition to existing language.
It is specific to the situation at hand and attempts to give meaning to the word “use” in regard to privately owned,
restricted from use dunes that are an essential component of a beach protection project.
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 on LBI 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 Army Corps justification for the full Project.
The language below would clarify this.
“When privately owned dunes protect a public beach and are essential to the project,
the public benefit criteria of Section 426(e) shall be considered to be met as long as
there is adequate public access to the beach. When the private dune owner is also
restricted by State or local law from developing on, altering or accessing the dune
itself then the use of such dunes shall not be considered to be limited to private i
nterests for the purpose of Section 103(d)”.
With this language enacted, the federal spending test for the LBI dune properties would be met,
and there would be no reason for the Army Corps to include their current dune public use and
access requirement in the easement. That removal will open the door to the signing of the
easement by the beachfront property owners, and allow the Project to proceed.
Request for Your Sponsorship of Legislation
Our club members and many other Island residents and visitors are extremely concerned that
the erosion may soon reach a point of no return. We are appealing to you to sponsor and
work to enact the legal change suggested, or alternative language, and in general provide
the leadership to free this project from this bureaucratic madness before it is too late to
save the Island’s beaches and dunes.
We look forward to a hopeful response, and are also requesting a meeting with you personally
so we can explain the full dimensions of this situation.
If your staff have any questions in the interim, please feel free to call our Vice-President,
Bob Stern, at 917 952-5016.
Sincerely
John Kostopoulos
President, LBI Democratic Club
Enclosure 1, Recent Dune Erosion, Beach Haven, NJ
Enclosure 2, Letter from LBI Democratic Club to the Army Corps and NJDEP.
Enclosure 3, Letter from Craig Homesley, Army Corps
Enclosure 4, NJ Trial Court Judge Decision
Cc, Governor Jon Corzine
Commissioner Lisa Jackson, NJDEP
Judge Vincent Grasso, Ocean County Court
---------------------------------------------------------------------------------------------------------------
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.
First, we are suggesting that in the Duration of Easement Section the reason for a
perpetual easement be explained further.
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;
Duration of Easement: the easement granted hereby shall be in perpetuity for the purposes
described under Grant of Easement, (a) through (h) and to allow for ongoing reviews to
assure that the property continues to provide its intended public protection and beach access
and use benefits. In the event……
Second, we propose that the very broad and contentious language in paragraph (d) under
the Grant of Easement Section “together with the right of public use and access” be modified
as shown below,
Grant of Easement: d. Perform any other work necessary and incident to the construction,
periodic re-nourishment, and maintenance of the Long Beach Island Storm Damage Reduction
Project together with assuring the right of public use and access of the beach and ocean,
in accordance with a DEP-approved municipal Public Access Plan (new material in italics).
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.
Public Law 84-826 (d) of 1986; “Shores other than public will be eligible for Federal
assistance if there is benefit such as that arising from public use or from the protection
of nearby public property or if the benefits to those shores are incidental to the project,
and the Federal contribution to the project shall be adjusted in accordance with the degree
of such benefits”(emphasis added)”.
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
Democratic Club of Long Beach Island
Cc; Governor John Corzine
Commissioner Lisa Jackson, DEP
Lt. Col. Gwen Baker, Army Corps
