SENATE CONCURRENT RESOLUTION No. 71

STATE OF NEW JERSEY

INTRODUCED MAY 16, 1996

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 regulate development of any waterfront upon any navigable water or stream of the State or bounding thereon. The objective of the law is to regulate commercial development of waterfront to facilitate navigation and commerce. The act thus provides for the submission to the Department of Environmental Protection of any plan for improvement or development along a waterfront, including any general plan or portion thereof that involves the construction or alteration of a dock, wharf, pier, bulkhead, bridge, pipeline, cable or any other kind of waterfront development, and that no such plan may be commenced or executed without the approval of the department.

    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 could possibly constitute 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."

    c.    The regulations concerning public access to the waterfront fail to reasonably distinguish between uses of property to determine when such access may be entirely inappropriate or even unsafe to the public. Public access is apparently required by the regulations even when the property is industrial or surrounded by other industrial uses, thus requiring a permittee to expend private funds for public pathways and parks that perhaps cannot be safely used by the public or which, because of their location in a highly developed industrial area, are unlikely to attract the public.

    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, may cause unconstitutional takings of private property without just compensation, and do not distinguish appropriately between uses of the property when imposing such a requirement.

    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.