SENATE CONCURRENT RESOLUTION No. 119

STATE OF NEW JERSEY

INTRODUCED MARCH 20, 1997

By Senator SCOTT

A Concurrent Resolution concerning legislative review of Department of Environmental Protection regulations pursuant to Article V, Section IV, paragraph 6 of the Constitution of the State of New Jersey.

    Be It Resolved by the Senate of the State of New Jersey (the General Assembly concurring):

    1.    Pursuant to Article V, Section IV, paragraph 6 of the Constitution of the State of New Jersey, the Legislature may review any rule or regulation adopted by an administrative agency to determine if the rule or regulation is consistent with the intent of the Legislature as expressed in the language of the statute which the rule or regulation is intended to implement.

    2.    The Legislature enacted R.S.12:5-1 et seq., commonly known as the "Waterfront Development Act" or the "Waterfront Development Law," to promote commerce and navigation. This intent was clearly evinced in "Last Chance Development Partnership v. Kean," 232 N.J. Super. 115, 119-120 (App. Div. 1989), as affirmed by the Supreme Court of New Jersey on appeal in Last Chance Development Partnership v. Kean, 119 N.J. 425, 435 (1990). The court held, "The impetus for the enactment of the statutory scheme came from the reports of the New Jersey Harbor Commission, a body appointed by Governor Woodrow Wilson to prepare a study of the port needs of the State and to recommend a policy designed to facilitate commerce and navigation. . . . The Commission . . . noted that 'the development of New Jersey, industrially, is retarded by reason of the failure of the State to adopt any policy for developing its frontage or waterways.' . . . The legislative history thus discloses that the principle concern in adopting the Act was to promote commerce and navigation."

    3.    The rules and regulations adopted by the department to implement the "Waterfront Development Act" include provisions concerned with public access to the waterfront. Specifically, those regulations, which are set forth at N.J.A.C.7:7E-8.11 and associated sections, authorize the department, when evaluating whether to issue a waterfront development permit, to require that "all development adjacent to water shall, to the maximum extent practicable, provide within its site boundary, a linear waterfront strip accessible to the public." The regulations, among other things, further require that the public access "must be clearly marked, provide parking where appropriate," and "be designed to encourage the public to take advantage of the waterfront setting." In addition, the regulations require, for both natural and developed waterfront areas, "permanent perpendicular and linear access to the waterfront to the maximum extent practicable, including both visual and physical access."

    4.    a. The "Waterfront Development Act" does not expressly require a permittee to provide public access over or through private property or to finance and construct a public pathway or park as a condition of receiving a permit.

    b. Imposing such a condition for approval of a permit constitutes a taking of private property without just compensation in violation of both the United States Constitution and the Constitution of the State of New Jersey, a result plainly not within the intent of the Legislature when it enacted the "Waterfront Development Act." Increasing public access to the waterfront, while a laudable goal, is more appropriately achieved through the police power of the state through appropriate condemnation proceedings and just compensation.

    c. Furthermore, imposing public access conditions on waterfront development, while a laudable goal, promotes neither commerce nor navigation as was the intent of the Legislature in passing the "Waterfront Development Law."

    5.    For all of the above reasons, the Legislature therefore finds that the public access requirements set forth in N.J.A.C.7:7E-8.11 and any associated regulations are not consistent with the intent of the Legislature as expressed in the language of the "Waterfront Development Act," R.S.12:5-1 et seq., which the regulations are intended to implement.

    6.    The Secretary of the Senate and the Clerk of the General Assembly shall transmit a duly authenticated copy of this concurrent resolution to the Governor and the Commissioner of Environmental Protection.

    7.    Pursuant to Article V, Section IV, paragraph 6 of the Constitution of the State of New Jersey, the Commissioner of Environmental Protection shall have 30 days following transmittal of this resolution to amend or withdraw the regulations codified at N.J.A.C.7:7E-8.11 and associated sections or the Legislature may, by passage of another concurrent resolution, exercise its authority under the Constitution to invalidate those regulations in whole or in part.

STATEMENT

    This concurrent resolution embodies the finding of the Legislature that the regulations of the Department of Environmental Protection concerning public access to waterfront areas, codified at N.J.A.C. 7:7E-8.11 and associated sections, are not consistent with legislative intent pursuant to Article V, Section IV, paragraph 6 of the State Constitution.

    The concurrent resolution finds that the regulations requiring permittees under R.S.12:5-1 et seq., commonly known as the "Waterfront Development Act" or the "Waterfront Development Law," to provide public access to the waterfront to the maximum extent practicable are not expressly authorized by the act, cause unconstitutional takings of private property without just compensation, and do not promote commerce or navigation as was the intent of the Legislature in passing the "Waterfront Development Law."

    The resolution further recognizes that providing public access to the waterfront is a laudable goal, but that it is most fairly accomplished through the police power and condemnation proceedings with just compensation. For this reason, companion legislation has been introduced that would appropriate $4 million for public access to the waterfront throughout the state to effectuate this goal.

    The Commissioner of Environmental Protection will have 30 days to withdraw or amend the inconsistent regulations or the Legislature may, by the passage of another concurrent resolution, invalidate the regulations in whole or in part.

Determines that public access regulations for "Waterfront Development Act" are inconsistent with legislative intent.