U.S. Ruling on Waterfront Pathways Upsets Some New Jerseyans

By STEVE STRUNSKY

JERSEY CITY, N.J. -- Claire Adamini says she has no problem with a federal judge's decision affirming the state's right to require public access to the waterfront next to private developments, including the riverfront next to her apartment building in Jersey City.

"I don't mind. I honestly don't," said Ms. Adamini, 26, who lives in the Newport, a private apartment complex that built a waterfront walkway in compliance with state rules. "I feel the public can enjoy it as well. They're not intruding on my apartment -- as long as they don't make a lot of noise and they don't litter."

But some developers and residents say they are dissatisfied with a decision that forces them to pay for pathways that will be used by the public and possibly crowd their private waterfronts.

The decision, issued Aug. 12 by Judge Garrett E. Brown Jr. in U.S. District Court in Newark and announced last week, was in response to a lawsuit filed jointly by the New Jersey Builders Association and its national affiliate, the American Homebuilders Association.

The suit challenged the constitutionality of 1988 state Department of Environmental Protection regulations calling for the construction of a 30-foot-wide walkway along 17.4 miles of Hudson River waterfront stretching from the George Washington Bridge in Fort Lee to the Bayonne Bridge. The requirement, the builders argued, amounted to an unconstitutional taking of property because it said developers must build, maintain and allow public access to a portion of the walkway along their property in order to obtain required permits.

Brown rejected the builders' argument, finding that the state's waterfront requirements were "well within the state's police power in the area of land use regulation."

Patrick O'Keefe, chief executive officer of the New Jersey Builders Association, said his group's members favor the waterfront walkway but want public money to pay for it.

He said no decision had been made whether to appeal the ruling, which was hailed by state and local officials and advocates of waterfront access.

Ann Alexander, director of the Rutgers University Environmental Law Clinic, said the decision could have national implications. Ms. Alexander said the state regulations upheld in the ruling are rooted in a legal principal known as the public trust doctrine, which dates to ancient Rome and is implicit in every state law designed to protect public access to waterways.

In citing the public trust doctrine, however, Brown limited his ruling to apply to only 15.4 miles of the 17.4 miles of shoreline in the walkway area, the amount that was was once under water but has since been filled by developers. Under the public trust doctrine, Ms. Alexander said, under water offshore acreage traditionally has been reserved for public access.

Joseph Barry, president of the Applied Companies, a major developer of the waterfront, said he did not support the builders' lawsuit. But Barry said he shared O'Keefe's belief that developers should not have to pay for the walkway. "What is wrong with spreading the cost to everybody?" he said.

Brown also ruled that developers "do not have the right to exclude public access" to the waterfront, a finding that upset some residents.

In 1995, Nadia Sapozhnikov, 44, and her husband, Vladimir, moved from Manhattan to the Shelter Bay Club, a gated condominium complex in Edgewater, because of its spectacular views and its privacy. "In case it won't be anymore private, we will just have to leave," said Ms. Sapozhnikov, idling at Shelter Bay's front gate in a late-model BMW station wagon.

Ben Travers, 23, of North Bergen, the guard at the gate, said privacy is the main reason most people choose to live at Shelter Bay. "That's why Celia Cruz lives here, because the paparazzi can't get at her," he said of the Latin singer after letting her stretch limousine pass through the gate.

In another waterfront access case, the state ordered Shelter Bay in 1991 to take down the barbed wire fence that blocks access to its walkway from a waterfront path at the adjacent Veterans Park. The development's condominium board appealed the order, and now, eight years later, the case is before the state Supreme Court following an Appellate Division ruling against Shelter Bay.

"It's just totally unfair to homeowners along the Hudson," said Anthony Pugliese, a board member of Shelter Bay, of Brown's ruling. "All we want is to live in peace, live in harmony with no worries about security."

In West New York, which is experiencing more residential development than any other nearby waterfront community, Richard Turner, the town administrator, said officials were ecstatic about the ruling.

"We think it's a fantastic decision," Turner said. "And it should put to rest a lot of the concerns that the Shelter Bay experience could become the norm."

O'Keefe of the New Jersey Builders Association said no particular developer or project prompted the suit, and that its timing, a decade after the regulations were adopted, related to a favorable U.S. Supreme Court case in 1997, not the waterfront's current construction boom. In the case, O'Keefe said the court ruled that conditions of a building permit had to be imposed on a case-by-case basis, not a blanket basis.

Sharon Southard, a spokeswoman for the state Department of Environmental Protection, said only a few miles of the waterfront path area remained undeveloped, and that several sections on public property have been developed with state money.

reprinted from:
NEW YORK TIMES
August 22, 1999

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From John Baxter on Wednesday, September 27, 2006 at 07:41:43


I cannot for the life of me understand why you are not using the CZMA, 1972 as your tool in fighting these cases in a Coastal Zone Boundary. National Oceanic and Atmospheric Administration, NOAA works as partners with the State Coastal Management program and any other program that is approved by NOAA. In New York State there is the Coastal Management Program, CMP. In New York City there is the Waterfront Revitalization Program, WRP, that was approved by NOAA. NOAA works as partners with CMP and WRP, with NOAA having oversight and enforcement powers. Not all states agreed with the CZMA, 1972. New York State joined in 1982, and since then they have received more than three billion dollars from the federal government to carry out the rules and regulations ser forth in the CZMA, 1972. They just take the money and ignore the CZMA. Of course when they want to stop a developer in a coastal zone boundary they use the CZMA against them and win. I have those cases in my possession.

Myself and Richard George filed a federal lawsuit involving federal, state and city officials. Case # 043901. Our case is passed around in federal court like a football. It was before Judge Sandra Feuerstein. Then it went to Judge Eric Vitaliano, and now it’s before Magistrate, Lois Bloom. We have to appear before Magistrate Bloom on September 29th. We filed the case ourselves because we cannot afford an attorney. We are not looking for monetary gain. We just want the developers to abide by the coastal laws.

It seems to me that the Department Of Commerce has failed to keep track of the billions of dollars allotted to the coastal programs.

JB

I will be sending you 100 dollars in the mail. That is all I can afford. I believe in your work. I have been putting some of your literature on my weekly Public Access show, the John Baxter Show. I made several one hour shows about Hands Off My Home. I produce shows every week for Manhattan, Brooklyn and Queens Public Access. I would like to do an interview with one of your staff, and that could be used on all the Public Access shows in America. I am a certified Public Access producer.


John Baxter
160 Beach 116th Street
Rockaway Park, NY 11694

Carleigh Trappe
Coastal Management Specialist
National Oceanic and Atmospheric Administration

Dear Ms. Trappe:

Flight 587 crashed on Beach 131st in November 2001. Soon after, the neighbors got together and decided that Beach 131st Street was not a suitable place for the Dominican relatives of the victims to congregate and mourn their loved ones. With the help of Mayor Bloomberg, they choose Beach 116th Street as the right location to build a monument to honor the victims. No one, except the residents of Belle Harbor, wanted that. Every year since the crash, the relatives of the victims congregate on Beach 131st Street and lay flowers at the crash sight. I am on Beach 116th Street an average of 15 hours a day, seven days a week, and I have never seen a single relative of the victims visit Beach 116th Street. Why am I telling you this? The monument now under construction is being built alongside the boardwalk in the center of Beach 116th Street, blocking the Visual Corridor to the Ocean.

When Helen Farr Bass was the Coastal Management Specialist, I wrote her many letters informing her about the Duane Reade building that was being built on the shoreline of Jamaica Bay on Beach 116th Street, over an existing, documented walkway to the shore, blocking the Public Access and the Visual Corridor to Jamaica Bay. Sadly, neither Ms. Farr nor anyone at NOAA took any action to correct the violation, even though I sent documentation, even videos, of the violations. I sent her a copy of the Federal Consistency Assessment Form (FCAF) and pointed out that the FCAF was filled out with many false statements. For example, one of the questions was “Will the proposed activity effect or be located in, on, or adjacent to a State, County, or local park?” The applicant answered, “no,” even though the Duane Reade building is adjacent to Marine Park. A lot of this is happening ever since the developers are allowed to certify their own projects. What a gift.

I also informed Helen that the street parking on the weekends was being eliminated in Neponsit, Belle Harbor and Rockaway Park. I estimated about ten thousand spaces were off limits to anyone wanting to go to the beach on weekends. Is that not another form of discrimination and a violation of the New Jersey Public Trust Doctrine? Again Helen refused to address this egregious violation, and it makes me wonder what is going on at NOAA?

I have a 34 room hotel on the east side of Beach 116th Street, the Baxter Hotel, 160 Beach 116th Street. There are plans in the works to increase the zoning from CR5 to CR7. Isn’t that a violation of the CZMA in a Coastal Zone Boundary, and a violation of the City’s Waterfront Revitalization Program? Will the City Planning Commission defend me when it goes before the Board of Standards and Appeals? Will you defend me if the City Planning Commission doesn’t? Time is of the essence. I await your reply to all of the above. I would also like to know the date, time and location for the next evaluation of the New York State Coastal Program.

Sincerey

John Baxter

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From John Baxter on Wednesday, September 27, 2006 at 07:35:54

In New York State the Coastal Management Program, CMP, and the City Waterfront Revitalization Program, WRP, ignore the Public Trust Doctrine and every other law that applies when building in a waterfront area. They just take the federal money and scram except when they want to stop a developer or a homeowner from building or expanding in a coastal Zone Boundary. Then they use the coastal laws to stop them, The laws are for them, not for me and you.

JB

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From John Baxter on Friday, January 28, 2005 at 08:26:18

It was my understanding that the Coastal Zone Management Act of 1972 applies in a waterfront development. Why is this never mentioned.
? Doesn't the local approved waterfront program work as partners with National Oceanic and Atmospheric Administration" If not why spend millions of taxpayers money annually to states to carry out the CZMA.

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