Up and down the coast, public beach access points are being lost to greed and corruption. In order to placate beachfront residents, municipalities frequently attempt to limit access by vacating street ends with access to the beach. In Deal, a borough with approximately 1.6 miles of coastline, there are only six legitimate access points with severely limited or restricted parking regulations. The purpose is to keep people away.
On Wednesday, December 12, 2018, the Borough of Deal passed Ordinance #1181 to vacate a public access point at the end of Neptune Avenue. This access has historically been used by local surfers, anglers and the general public alike. The access will be sold to the adjacent homeowner through ICC Neptune, LLC, a subset of Crown Acquisitions, for $1,000,000. Crown is a New York corporation with millions of dollars in real estate assets.
This is nothing new for Deal. The Borough has been vacating public access points since the 1980’s. Those street ends include Jerome Ave., Whitehall Ave., Roseld Ave., Marine Pl., Monmouth Dr. and Sydney Ave. The 1992 Monmouth County Waterfront Access Study noted that no requests for street vacation were denied in Deal.
Deal sold a public beach access point to a wealthy New York real estate developer for $1,000,000. This begs the question: Where is this money going? In order for a street vacation ordinance to be legally valid, it must serve the public interest. At a public meeting on December 12, Deal made comments that the money will be used for street improvements such as street lights. However, as of December 31, 2017, the Borough had over $9.1 million on their books in cash and investments. Perhaps they could use those funds rather than selling public land?
Is it in the public interest to vacate an access point for local street improvements? In a 2002 Appellate Division decision, Howell Properties, Inc. v. The Planning Board of the Township of Howell, the court noted that municipal power must be exercised for the general welfare, which includes accounting for regional needs. Since the general welfare requires consideration of regional needs, the phrase “public interest,” used in the street vacation statute (N.J.S.A. 40:67-19), demands that a municipality look beyond its own borders in determining whether its legislative act serves the “public interest” in general. Therefore, we believe that Deal’s vacating of a public access point for local road improvements is contrary to established law. The public interest would be better served by maintaining existing access points for the benefit of the citizens of New Jersey as a whole.
The sale of this access point will undoubtedly increase the property values of adjacent homeowners, some of whom have private access to the beach. This is particularly unethical in the wake of a federally funded beach replenishment project, paid for with taxpayer dollars. On January 20, 2015, the U.S. Army Corps of Engineers, New York District, awarded a $38 million dollar contract to Manson Construction Company to replenish beaches, reconstruct storm water outfalls and implement modifications to an area from Elberon to Loch Arbor. The project is funded by the federal government.
Since Deal is in the area covered, the Borough directly benefits from the public money funding this project. Now that the beaches are restored, the public should be able to use the beaches that were paid for with taxpayer money. However, the Borough is doing everything in their power to block the public from coming to the shore and parking near the multi-million dollar beachfront homes. They are acting as a conduit to the beachfront homeowners, many of which are not year-round residents.
For decades, Neptune Avenue has been used by locals to access the jetty and ocean. There was once a path that lead down to the beach. That path was destroyed during a 2014 beach replenishment project when the U.S. Army Corps of Engineers piled rocks at the end of the road. The Army Corps., nor the Borough, have made any attempts to maintain that access point.
In an article by the Asbury Park Press, dated December 11, 2018, Mayor Cohen was quoted saying, “You could never walk down there. The beach access is about a block away (on Hathaway Avenue). This was never a beach access point.”
Despite the Mayor’s comment, the Borough’s own Draft Municipal Public Access Plan states, “The Neptune Avenue Visual Access point had beach access prior to the Army Corps of Engineers beach replenishment project.” This, along with testimony from numerous locals, proves that this access was used continuously in the past. The Draft Municipal Access Plan is available online but an approved version has not been made public.
Neptune Ave. street end is also recognized by the New Jersey Department of Environmental Protection as a public access site (#DB00315), and its abandonment is contrary to state policy to maintain all existing public access to the shore.
At the public meeting on December 12, the Borough claimed that there will be an unmarked path down to the beach after the site is developed. The fact that it will be unmarked creates an “illusion of exclusion” whereby visitors will have no idea that this is a direct path to the beach.
Further into the meeting, the Commissioners were asked how many street ends in Deal have been vacated in the past 40 years. One Commissioner responded: “One that I know of” and that there is “no consequence” to public access when street ends are vacated. I would ask the Commissioners to visit the street ends at Jerome Ave., Whitehall Ave., Roseld Ave., Marine Pl., Monmouth Dr. and Sydney Ave. to verify their claims.
There is along history of access violations in Deal, with Neptune Avenue being the most recent. In October 2015, soon after the beaches were enlarged with federal taxpayer money, the Borough proposed Ordinance #1124 which sought to restrict parking on six oceanfront streets during the summer. Only Deal residents located on those streets would have been issued parking permits. The Ordinance was tabled after overwhelming public opposition. Similarly, in June 2016, the Borough proposed Ordinance #1134 which sought to restrict beach access by implementing permit parking on one side of those same streets. This Ordinance was also tabled because of the Borough’s clear intent to keep the general public away from the newly restored beaches.
In April 2017, the Borough proposed Ordinance #1143 which sought to require permit parking during the summer months on those same streets with vital beach access points for $100 for the season or $50 per month. The Ordinance would have given preferential treatment to thirty-two beachfront residents with ample parking. This Ordinance was merely another attempt to keep people away from the newly restored beaches, paid for with public funds. Ultimately, Ordinance #1143 was tabled.
Following the introduction and defeat of Ordinance #1143, the Jersey Shore Chapter of the Surfrider Foundation filed an Ethics Complaint against Deal. The basis of the Complaint was a transaction involving the The Deal Endowment Fund, a 501(c)(3) that is operated by the Mayor and one of the Commissioners. The complaint alleged that the beachfront homeowners in Deal donated $112,000 for a beach sweeping machine. For their donations, the beachfront homeowners would receive tax deductions and, as the complaint alleged, a promise from the Borough that a parking ordinance (#1143) would be passed. The complaint further alleged that this amounted to an unethical “quid pro quo” in violation of local government ethics laws. As of today, there has been no update on the status of the Complaint.
In June 2017, the Borough passed Ordinance #1152 which created a municipal beach at Hathaway Avenue. Prior to the passing of this Ordinance, the Borough did not allow swimming and there were no lifeguards on duty. Following the passage of the Ordinance, the Borough began selling seasonal ($150) and daily ($8/$10) passes for access and use of the newly life guarded beach.
Next up, the Borough plans to sell public beachfront property to an adjacent homeowner on Roosevelt Avenue. Recently, two appraisers were hired to assess the value of the land at Block 14, Lot 17. a.k.a. Roosevelt Beach Park. This property was created with a FEMA Hazard Mitigation grant to shore up the “pump house” after Hurricane Sandy. At open public meetings, the Borough promised that this land would be preserved as public visual access. Now, they intend to sell the land to the adjacent resident who sits on the planning & zoning board. Additionally, the appraisals indicate incredibly low valuations for oceanfront land, while admitting that the adjacent homeowner will exponentially increase the value of their property and derive additional benefits of beach access.
What can be done?
New Jersey needs the Assembly to pass the Public Access Bill (A4221) before more harm comes to the shore. If signed into law, the bill would enable the New Jersey Department of Environmental Protection (NJDEP) to protect public access to tidal waterfronts for bathing, surfing, swimming, fishing, and other shore-related activities. It will also address chronic problems that limit public access, such as inadequate parking, restroom facilities, walkover structures, and handicapped access.
A4221 was sponsored by Assemblywoman Nancy Pinkin as a companion to Senate Bill S.1074. The Senate bill was passed 36-4 on June 21, 2018. This was in response to a 2015 court case invalidating the NJDEP’s power to regulate public access outside of issuing Waterfront Development permits. The Assembly bill is currently stalled in committee.
We need to Assembly to take action now. We want to Public Access Bill posted for a vote so it can be sent to the Governor’s desk. Without it, only public pressure and litigation will stop street vacation ordinances and violations of the public trust.
You can help by clicking this link to send a message to your local New Jersey legislator
By: Andrew L. Chambarry, Chair, Jersey Shore Chapter