               NOT FOR PUBLICATION WITHOUT THE
              APPROVAL OF THE APPELLATE DIVISION

                              SUPERIOR COURT OF NEW JERSEY
                              APPELLATE DIVISION
                              DOCKET NOS. A-2278-17T4
                                          A-2279-17T4
                                          A-2507-17T4

STATE OF NEW JERSEY,
BY THE DEPARTMENT OF               APPROVED FOR PUBLICATION

ENVIRONMENTAL PROTECTION,                 April 16, 2020

                                      APPELLATE DIVISION
     Plaintiff-Respondent/
     Cross-Appellant,

v.

10.041 ACRES OF LAND IN THE
BOROUGH OF POINT PLEASANT
BEACH, OCEAN COUNTY, NEW
JERSEY; RISDEN'S BEACH
CORPORATION, fee owner, and
JACQUELINE RISDEN, mortgagee,

     Defendants-Appellants/
     Cross-Respondents.


STATE OF NEW JERSEY,
BY THE DEPARTMENT OF
ENVIRONMENTAL PROTECTION,

     Plaintiff-Respondent,

v.

0.808 ACRES OF LAND IN THE
BOROUGH OF POINT PLEASANT
BEACH, OCEAN COUNTY, NEW
JERSEY; THE BEACH
CONDOMINIUM ASSOCIATION, INC.,
and RISDEN'S BEACH CORP.,

     Defendants-Appellants.


STATE OF NEW JERSEY,
BY THE DEPARTMENT OF
ENVIRONMENTAL PROTECTION,

     Plaintiff-Respondent/
     Cross-Appellant,

v.

3.814 ACRES OF LAND IN THE
BOROUGH OF POINT PLEASANT
BEACH, OCEAN COUNTY, NEW
JERSEY, and BRADSHAW'S BEACH
HOMEOWNERS ASSOCIATION, LLC,

     Defendants-Appellants/
     Cross-Respondents.


          Argued February 3, 2020 – Decided April 16, 2020

          Before Judges Fasciale, Rothstadt and Moynihan.

          On appeal from the Superior Court of New Jersey,
          Law Division, Ocean County, Docket Nos. L-2982-17,
          L-2985-17 and L-3079-17.

          John H. Buonocore, Jr., argued the cause for
          appellants/cross-respondents Risden's Beach Corp.
          and Bradshaw's Beach Homeowner's Association,
          LLC (McKirdy, Riskin, Olson & DellaPelle, PC,
          attorneys; John H. Buonocore, Jr., on the briefs).



                                                               A-2278-17T4
                                   2
            Brian    W.    Keatts    argued    the  cause    for
            respondent/cross-appellant (Rutter & Roy, attorneys;
            Brian W. Keatts and Heather N. Oehlmann, on the
            briefs).

      The opinion of the court was delivered by

FASCIALE, P.J.A.D.

      Risden's   Beach     Corporation,    Bradshaw's    Beach     Homeowner's

Association, and Beach Condominium Association are owners of Point

Pleasant oceanfront properties that are operated as commercial beaches. 1 The

judge issued final judgments authorizing the Department of Environmental

Protection (DEP) to take easements for a shore protection system known as the

Manasquan Inlet to Barnegat Inlet Hurricane and Storm Damage Reduction

Project (the Project). Risden's Beach Corporation (Risden's) and Bradshaw's

Beach Homeowner's Association (Bradshaw's) (collectively defendants) appeal

from those judgments, which included handwritten paragraph eight stating,

"[t]his [c]ourt finds that the taking in this matter shall not interfere with the

1
   Beach Condominium Association (Beach Condo) is not participating in the
appeal. We listed these appeals (State v. 3.814 Acres of Land in the Borough
of Point Pleasant Beach, State v. 10.041 Acres of Land in the Borough of Point
Pleasant Beach, and State v. .808 Acres of Land in the Borough of Point
Pleasant Beach (collectively Risden's)) back-to-back with sixty-three
consolidated cases known as State v. 1 Howe Street Bay Head, LLC (Howe);
an individual appeal in New Jersey Department of Environmental Protection v.
Midway Beach Condominium Ass'n (Midway); and a pro se appeal entitled
State v. Arthur Williams (A-1484-17) (Williams). On this date, we issued
opinions in Howe, Midway, and Williams.


                                                                         A-2278-17T4
                                       3
right of the property owner to operate a commercial/for profit beach open to

the public." DEP cross-appeals, arguing that this paragraph was unnecessary.

We direct that the judge delete this quoted language, and we affirm the

judgments as to defendants, with further directions that the judge add "and

their successors in interest or agents" in those paragraphs of the easement after

the name of each defendant.

      Risden's Beach Corporation owns and operates a commercial public

beach in Point Pleasant.    Its property consists of 10.85 acres between the

boardwalk and the mean high-water line, known as Block 46.02, Lots 1 and 3.

In addition, Beach Condo leases Risden's property that is 0.8 acres, known as

Block 46.02, Lot 2, in which Risden's operates a commercial beach.

Bradshaw's commercial beach consists of 3.814 acres, known as Block 17.02,

Lots 13 and 14.

      In November 2014 and January 2015, Donald L. Moliver, DEP's

appraiser, sent notification letters to each defendant. Beginning in November

2015, Moliver conducted multiple inspections of defendants' properties.

Defendants' counsel 2 expressed concerns about the easement language that

gave DEP the right to operate the beaches.              A DEP representative


2
  Defendants' attorneys represented Risden's and Bradshaw's, but not Beach
Condo.


                                                                         A-2278-17T4
                                       4
communicated that the language was "to ensure that if an association folds or

fails to operate the beach, the State . . . could step in and operate the beach."

      On February 21, 2017, Moliver valued Beach Condo's property at $5.29

million before the taking and $5.82 million after the taking.              Moliver

concluded that DEP should pay $1000 nominal consideration for the easement

because the property's value would increase as a result of the taking.

      On June 16, 2017, Moliver valued Bradshaw's property at $1.175 million

before the taking and $1.233 million after the taking. Moliver speculated that

just compensation was $6300, most of which would be paid to obtain a

"[t]idelands license" over the new beach that the Project would create.

      On July 20, 2017, Moliver valued Risden's property at $7.35 million

before the taking and $8.1 million after the taking. Moliver's appraisal

determined that the highest and best use of the beach property was recreational

activity lots by paid patrons. Moliver noted that parking lot fees and beach

badge sales generated the majority of the property's income. The appraiser

concluded DEP should pay Risden's $1000 as nominal consideration for the

easement.

      On August 28, 2017, defense counsel identified numerous concerns with

Risden's property appraisal and pointed out that Risden's generated $1.2




                                                                           A-2278-17T4
                                         5
million in profits in 2015 that the appraiser ignored. Risden's did not make a

counteroffer to DEP.

       DEP's easements provided that it could "operate" a public beach on each

property.3 Each easement also included the following provision:

              Consistent with New Jersey law, during the summer
              season when lifeguard and other beach amenity
              services (e.g., beach maintenance, trash removal) are
              provided by [Risden's or Beach Condo or Bradshaw's 4]
              to the public [Risden's or Beach Condo or Bradshaw's]
              may charge fees for daily and seasonal beach badges
              and/or passes, provided [Risden's or Beach Condo or
              Bradshaw's] allows audit of its records, and access and
              use of the beach, in accordance with N.J.A.C. 7:7-16.9
              (q), (r), (s), (t) and (v)[.]

On September 15, 2017, Risden's and DEP representatives met, but were

unable to come to an agreement regarding the easement's language.

       On September 22, 2017, Risden's offered to waive any objection to the

Project and permanently deed restrict its property to commercial public use, so

long as DEP omitted the language authorizing it to operate a beach on the

property.    DEP rejected Risden's offer, reasoning that the Army Corps of

Engineers (Army Corps) would not agree. But, DEP proposed to provide a

letter stating it would not exercise its right to operate a commercial beach

3
    All easements in this matter include the same language.
4
    Each easement used the specific name of each defendant.



                                                                        A-2278-17T4
                                        6
unless Risden's failed to do so.     DEP's counsel informed defendants that

Moliver's valuation included only the real estate, not Risden's business.

      Bradshaw's agreed to abide by whatever resolution was reached in

negotiations with Risden's. On October 25, 2017, Bradshaw's representatives

met with DEP employees in an effort to reach a resolution. One week later,

DEP filed its condemnation complaint against Bradshaw's.

      At oral argument before the judge, DEP asserted that the language

granting it the right to operate a public beach was necessary to "guarantee

public access" and that the Army Corps required it. The record includes a

certification from the Real Estate Division Chief for the Baltimore District of

the Army Corps, which was submitted as part of a separate federal litigation.

The certification notes the Army Corps' interpretation of what constitutes

public access to beaches, and advised that charging reasonable user fees at

publicly owned or operated beaches is permissible so long as the fees are

subject to DEP regulation.

      Given that their properties were already used for public beaches,

defendants argue the judge erred because the takings were not necessary to

create public use and access to the waterfront.

      The judge found that the easement's language was too broad and

ambiguous. But according to the judge, it "is clearly implied" from all the



                                                                            A-2278-17T4
                                        7
documents DEP filed that the agency had no intention of operating the beach

so long as the property continued to be used as a commercial beach; thus, any

successor would stand in defendants' shoes. In her final orders, the judge

included a handwritten paragraph eight, which stated that the takings would

not affect defendants' abilities to operate commercial beaches on their

properties.5

                                        I.

      Condemning authorities have "[g]reat discretion . . . in determining what

property may be taken for public purposes." Borough of Essex Fells v. Kessler

Inst. for Rehab., Inc., 289 N.J. Super. 329, 337 (Law Div. 1995); see Township

of West Orange v. 769 Assocs., L.L.C., 172 N.J. 564, 579 (2002).

      Defendants argue that DEP's complaints should have been dismissed

because the easements exceed the stated necessity to assure public access to

the waterfront, given that their properties are operated as public beaches.

Defendants believe that the purpose of the easement language is to oust them

at a future date and operate the beaches in their stead.

      Each easement DEP took for the Project permitted the agency to operate

a public beach on the premises. DEP has maintained that this language is


5
  The language varied slightly in the two orders, and the judge did not include
the additional language in her Beach Condo ruling.


                                                                       A-2278-17T4
                                        8
necessary to secure federal funding. In fact, in State v. North Beach 1003,

LLC, 451 N.J. Super. 214, 240 (App. Div. 2017), this court concluded that "the

Army Corps has interpreted its responsibility to include requiring public

access and use of [p]roject areas funded by federal monies." North Beach also

held that N.J.S.A. 12:3-64 permits DEP, in its discretion, to take easements

with a right of public access. Ibid.

      The fact that defendants currently operate public beaches on their

properties does not ensure that they will continue to do so in the future.

Defendants could sell the properties to a buyer who prefers to have a private

beach that is not accessible to the public, or they could choose to stop

operating commercial beaches. For these reasons, DEP used its discretion to

take easements authorizing it to operate public beaches on the properties, and

this authority is present in all easements under dispute. See, e.g., id. at 239.

      Defendants offered to deed restrict their properties to certify that they

would continue to operate as public beaches, but DEP is not required to agree

to defendants' terms.     Rather, DEP has discretion to decide how best to

accomplish its goal of guaranteeing public access to the beaches. And we see

no abuse of that discretion.

      Defendants argue that despite DEP's claim to the contrary, the Army

Corps does not require that DEP take the right to operate a commercial beach



                                                                           A-2278-17T4
                                         9
on their properties.   At oral argument, defendants requested a hearing to

determine whether the Army Corps in fact required the easement language.

The judge accepted DEP's representation that the Army Corps required the

language. According to the Army Corps, federal funding for the Project is

conditioned on public access to the beaches. Thus, the easement language

authorizing DEP to operate public beaches to ensure public access to the

waterfront was consistent with Army Corps requirements, notwithstanding that

the properties are currently operated as public beaches. We agree the record

supports that the Army Corps required DEP to take the right to operate public

beaches on all properties. See North Beach, 451 N.J. Super. at 240.

                                      II.

      We reject defendants' argument that the language in the easement is

vague and denies them substantive due process and just compensation. We do

not find that the language is vague or that defendants were denied due

process.6

      The judge determined that the easement language created ambiguity

inasmuch as it gave DEP the right to operate a public beach on defendants'

properties, but did not protect defendants' property interests in operating the


6
  In January 2019, Risden's entered a contract for sale of its property. At oral
argument, we learned that the sale occurred.


                                                                       A-2278-17T4
                                      10
commercial beaches.     In order to rectify this problem, the judge included

paragraph eight in two of her final orders, which provided that the taking

would not interfere with defendants' right to operate a for-profit public beach.

      Defendants do not challenge the addition of paragraph eight or object to

its removal as argued by DEP in its cross-appeal.         They argue that, the

easement language gives DEP a right to operate a commercial beach on their

properties without paying just compensation for such a taking. This would

give defendants only "sui generis status of a seasonal, limited-use, quasi-

licensee-at-will of its own property."      They claim that the only "property

rights" they now have are the obligations to pay property taxes and to defend

against tort liability. We disagree.

      The easement clearly gives DEP a right to operate a public beach on

defendants' premises. By inserting paragraph eight, the judge attempted to

mitigate future possible losses of income, stating that nothing in the easements

would interfere with defendants' ability to operate their commercial beaches.

We understand the judge's desire to provide some protection for defendants'

livelihoods, but we conclude that paragraph eight contradicts the easements'

clear language authorizing DEP to operate a public beach.

            [N]ot all losses suffered by a condemnee are
            compensable. For example, damages or costs of a
            speculative nature are always noncompensable. Just
            compensation generally does not include losses or

                                                                         A-2278-17T4
                                       11
            costs that are incidental to a taking, such as loss to or
            destruction of good will, loss of profits, inability to
            relocate or frustration of the condemnee's plans.
            These items are generally held not to be directly
            attributable to the realty, but rather peculiar to the
            owner. The fact that these losses are noncompensable
            is justified on the grounds that their value is too
            speculative, remote and too uncertain for accurate
            measurement; that they depend on various factors not
            attributable to the land and, accordingly, furnish no
            reliable criteria for the fixing of market value at the
            time of the taking.

            Similarly, loss of business profits derived from a
            going business conducted on the property taken is not
            the subject of independent compensation aside and
            apart from the market value of the land taken. Such a
            business loss is admissible only to show the highest
            and best use of the land before the taking and the
            inadaptability of the remaining land to continue such
            use.

            [State by Comm'r of Transp. v. Cooper Alloy Corp., 136
            N.J. Super. 560, 568-69 (App. Div. 1975) (citations
            omitted).]

      It is true that the easement permits DEP to operate a public beach on

defendants' properties.    The appraisal accounted for "the practical and

permitted uses of the site," including income generated by the property from

beach badge sales and parking. Just compensation is meant to compensate

only for changes in the value of the land as a result of the taking. See Borough

of Harvey Cedars v. Karan, 214 N.J. 384, 389 (2013). According to Moliver's

appraisal, there will be a net increase in the land's value, taking into



                                                                        A-2278-17T4
                                       12
consideration defendants' sale of beach badges.      And as the judge noted,

challenges as to the amount of just compensation is a matter for the

commissioners' consideration.

      Also, DEP did not take an easement over defendants' entire properties,

and defendants still have the right to operate a commercial beach on the

properties that they exclusively retain. Thus, even if DEP eventually operated

a public beach on the easement portion, defendants could continue to operate a

commercial beach on the portion that remains in their exclusive possession.

      Defendants argue that the easement final paragraphs are phrased in such

a way that they are personal to the named owner and do not run with the land.

Thus, any future owner of the property is not protected. In addition, they do

not preserve the owners' exclusive rights to operate the beach and do not vest

the owners with the power to decide who operates the beach.          The judge

reasonably interpreted these paragraphs to protect any of defendants'

successors in interest, but we direct the judge add "and their successors in

interest or agents" in those paragraphs after the name of each defendant.

      Defendants believe the easement language is deliberately vague.

According to defendants, the judge's handwritten additions in paragraph eight

further demonstrate the uncertainty of the rights described in the complaint,

and create a valuation problem which deprives them of just compensation in



                                                                        A-2278-17T4
                                      13
the event DEP eventually decides to operate a public beach on their properties.

We disagree.

      First, Moliver's appraisals included a legal description of the properties

and the exact description of DEP's easements. Second, the easements were not

vague because they described⸺with specificity⸻exactly what DEP would

take, including a metes and bounds description. Additionally, the complaints

identify the properties by block and lot, the property owners, the property

purchase dates, the required easements, and the just compensation amount.

They also describe in detail the location, length, width, shape, and area of each

easement.

      Defendants also argue that the judge erred because the description of the

acquired rights should have been clarified prior to the appointment of

commissioners. The land to be taken must be described with such certainty as

to leave no room for doubt. Hous. Auth. of Atl. City v. Atl. City Exposition,

Inc., 62 N.J. 322, 328 (1973). We find no fault with this ruling.

      The judge stated that the filed documents clarified that DEP had no

intention of operating a public beach unless defendants decided not to do so.

The language in the appraisal and the easements provided a clear statement of

DEP's taking.




                                                                        A-2278-17T4
                                       14
      Defendants contend that all challenges to the valuation and damages

must be settled prior to appointing commissioners and, in support , cite

numerous cases standing for that proposition including:               State by

Commissioner of Transportation v. Orenstein, 124 N.J. Super. 295, 298 (App.

Div. 1973); State by Commissioner of Transportation. v. Hess Realty Corp.,

226 N.J. Super. 256, 260-62 (App. Div. 1988); and New Jersey Sports &

Exposition Authority v. Giant Realty Associates, 143 N.J. Super. 338, 346

(Law Div. 1976).

      But here, all issues were decided prior to the commissioner appointment.

The judge agreed that DEP was authorized to take the easements and could

operate a public beach on the premises if defendants failed to do so. DEP's

easement was clear. Valuation was the only issue left for the commissioners.

      DEP claims that paragraph eight in the judge's final orders should be

stricken because it conflicts with their rights under the easements to guarantee

public access to the beach. According to DEP, in order to be eligible for

federal funding, the beaches must be accessible to the public. But the court's

additional language will jeopardize federal funding because it creates

ambiguity as to DEP's rights. We agree.

      The judge attempted to protect defendants' commercial interests, but the

language she added conflicts with DEP's rights to operate a public beach on



                                                                        A-2278-17T4
                                      15
the properties.   Importantly, defendants do not argue that this handwritten

language should remain in the orders.

                                        III.

      Defendants also assert that DEP failed to satisfy the prelitigation

requirements in N.J.S.A. 20:3-6 because the agency did not engage in bona

fide negotiations. We disagree.

      The Eminent Domain Act (EDA), N.J.S.A. 20:3-1 to -50, requires a

condemnor to engage in "bona fide negotiations" with the property owner.

N.J.S.A. 20:3-6. N.J.S.A. 20:3-6 "encourage[s] acquisitions without litigation,

thus saving both the [condemnor] and the condemnee the expense and delay of

litigation." Casino Reinvestment Dev. Auth. v. Katz, 334 N.J. Super. 473, 481

(Law Div. 2000). The complaint is dismissed if the acquiring entity fails to

comply with the prelitigation requirements. Ibid.

      The statute does not define bona fide negotiations, but our Supreme

Court established such negotiations include an offer in writing setting forth the

property interest to be acquired, the compensation to be paid, and a reasonable

disclosure of how the amount was calculated. State by Comm'r of Transp. v.

Carroll, 123 N.J. 308, 316-17 (1991). Bona fide negotiations are especially

necessary for "minor" takings to protect unsophisticated owners who might not

be in a position to hire lawyers or appraisers. See ibid. A one-price offer does



                                                                        A-2278-17T4
                                        16
not, by definition, violate N.J.S.A. 20:3-6, so long as the condemnor puts forth

its best offer⸻an offer for the full appraised value of the property⸺before

litigation is instituted. Id. at 318-19; Casino, 334 N.J. Super. at 483.

      The reasonableness of bona fide negotiations centers on the adequacy of

the appraisal information and whether it sufficiently explains the valuation

method for an average property owner to engage in negotiations. Carroll, 123

N.J. at 321. A one-price offer procedure is acceptable so long as the appraisal

information is comprehensible and includes a valuation methodology. See id.

at 323.   Just compensation is based on the property owner's loss, not the

condemning authority's gain.        Casino, 334 N.J. Super. at 484.             Just

compensation is the difference between the value of the property before and

after the taking. Harvey Cedars, 214 N.J. at 417.

      Defendants argue that the negotiations failed to account for the fact that

DEP was converting their fee simple ownership of the commercial beaches to a

seasonal limited-used property with no transferable title. We disagree with

defendants' characterization. Even though DEP has the right to operate the

beach if defendants fail to do so, this does not create a seasonal limited-use

property with no transferable title.     As the judge noted, any successor in

interest will have the same rights as defendants to operate a commercial beach.




                                                                           A-2278-17T4
                                        17
      Defendants cite a tax map of the area and a diagram of the property as

examples of DEP's failure to engage in bona fide negotiations, and request that

this court compare these two documents. However, contrary to defendants'

assertions, DEP engaged in lengthy discussions with defense counsel about the

easement language. On notice to defendants, Moliver appraised the properties,

inspecting the properties with defendants present. He provided defendants

with a detailed explanation of his appraisal methodology. DEP engaged in

numerous communications with defendants, spanning multiple years, wherein

they made several concessions to defendants in an effort to reach a resolution

and answered inquiries in a timely manner.       DEP ultimately submitted a

written offer to defendants.

      Defendants argue that the appraiser did not consider Risden's and

Bradshaw's income from beach badge sales and that income is exactly what

DEP sought to take, and therefore should be included in the valuation.

      The record establishes that DEP engaged in bona fide negotiations

inasmuch as the property was appraised, DEP made an offer for just

compensation, and DEP and defendants engaged in discussions in an attempt

to satisfy their concerns. We find DEP engaged in bona fide negotiations.

                                      IV.




                                                                         A-2278-17T4
                                      18
      Defendants argue that N.J.S.A. 12:3-64 does not authorize DEP to take

easements for public use and access of defendants' privately owned

commercial beaches. Defendants contend that neither this statute nor the EDA

addresses public beach access, nor do they authorize the taking of easements.

      We addressed these arguments in North Beach, 451 N.J. Super. at 230-

32, 237. We reiterate that N.J.S.A. 12:3-64 supports DEP's authority to take

the easements. The judge addressed these arguments in her opinion leading to

North Beach and determined that N.J.S.A. 12:3-64 provides no impediments to

the takings. Id. at 226-28. We rely on North Beach and add the following.

      DEP has the power to condemn pursuant to the EDA. See, e.g., N.J.S.A.

12:3-64. The Legislature enacted the EDA to integrate and standardize the

more than 300 statutes authorizing the exercise of eminent domain. Township

of West Windsor v. Nierenberg, 150 N.J. 111, 126 (1997). The EDA is not an

enabling statute, but rather, provides a uniform procedure to be followed by all

entities with the power to condemn. Township of Hillsborough v. Robertson,

260 N.J. Super. 37, 43 (Law Div. 1992).

      N.J.S.A. 12:3-64 provides:

            The Department of Conservation and Economic
            Development may acquire title, in fee simple, in the
            name of the State, by gift, devise or purchase or by
            condemnation in the manner provided in chapter one
            of [the EDA] to any lands in the State, including
            riparian lands, of such area and extent which, in the

                                                                       A-2278-17T4
                                      19
            discretion of the department, may be deemed
            necessary and advisable. All lands so acquired shall
            be subject to the jurisdiction and control of the
            department.

                   ....

            Upon the department exercising the right of
            condemnation and entering upon and taking land in
            advance of making compensation therefor it shall
            proceed to have the compensation fixed and paid to
            the owner, as provided in said chapter one of the
            [EDA].

            Lands thus acquired shall be used for the improvement
            or development of any waterway, stream, river or
            creek or any waterfront or oceanfront property or to
            give access to any lands of the State.

            [(Emphasis added).]

      This court in North Beach held that N.J.S.A. 12:3-64 expressly

authorizes DEP to condemn properties for shore protection and to acquire "any

type of property interest," including a perpetual easement to protect the

coastline. 451 N.J. Super. at 237-38. Because DEP could have taken the

property in fee simple, it also had discretion to take a lesser interest, such as an

easement with a right of public access and use. Id. at 234-35.

      Defendants argue that the public trust doctrine does not support an

interpretation of N.J.S.A. 12:3-64 to take the easements. In North Beach, we

cited Matthews v. Bay Head Improvement Ass'n, 95 N.J. 306, 322 (1984), for

the notion that the public trust doctrine requires public access to the shoreline.

                                                                           A-2278-17T4
                                        20
451 N.J. Super. at 239-41. North Beach held that the public trust doctrine

requires the public have access to the beach when DEP uses public funds to

create a dry sand area. Id. at 241.

      According to the public trust doctrine, the State holds "'ownership,

dominion and sovereignty' over tidally flowed lands 'in trust for the people.'"

Hackensack Riverkeeper, Inc. v. N.J. Dep't of Envtl. Prot., 443 N.J. Super.

293, 303 (App. Div. 2015) (quoting City of Long Branch v. Jui Yung Liu, 203

N.J. 464, 474 (2010)). Access to the sea encompasses "access to and use of

privately[]owned dry sand areas as reasonably necessary." Id. at 304 (quoting

Matthews, 95 N.J. at 326). We agree with the judge that the public trust

doctrine requires that the public be assured access to the beaches.

      Defendants argue that the New Jersey Supreme Court has never

compelled a private property owner to provide public use and access to the

beach when adequate public access exists. But here, federal funding for the

Project is conditioned on DEP providing and ensuring public access to the

waterfront, thus DEP must acquire the right to provide public access to the

beaches. Without this language in the easement, defendants could eventually

prevent public access to the waterfront.

      Defendants dispute this court's determination in North Beach that

N.J.S.A. 12:3-64 permits the condemning authority to acquire any interest in



                                                                       A-2278-17T4
                                       21
the property it condemns. 451 N.J. Super. at 232. According to defendants,

the EDA is not subject to interpretation, and DEP only has the power delegated

by the Legislature. But in North Beach, this court stated that DEP instead

derives its power to condemn from N.J.S.A. 12:3-64, and that statute permits

DEP to acquire any interest in the property it condemns. In support, this court

quoted N.J.S.A. 20:3-20 which provides.

            The title to property condemned and acquired by the
            condemnor hereunder, shall be a title in fee simple,
            free and discharged of all right, title, interest and liens
            of all condemnees, and shall include all the right, title
            and interest of each condemnee therein, provided,
            however, that if the complaint or any amendment
            thereof shall specify a lesser title, the lesser title so
            specified shall be the title condemned and acquired.

            [Id. at 233 (emphasis added).]

      Thus, we agree with the holding in North Beach that N.J.S.A. 12:3-64

permits DEP to take easements on private property for shore protection.

      Affirmed in part; reversed in part.




                                                                          A-2278-17T4
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