New Jersey waterfront development regulations along the Hudson River that infringe upon private property rights are unconstitutional under the Supreme Court's 1994 decision in Dolan v. City of Tigard and should be invalidated, the National Association of Home Builders (NAHB) and the New Jersey Builders Association (NJBA) have charged in a lawsuit recent filed in the U.S. District Court for New Jersey in Newark.

In NAHB v. State of New Jersey Department of Environmental Protection, the associations argue that regulations along the Hudson River waterfront area that mandate public access on private property are a clear violation of the Supreme Court's ruling in the Dolan case. NAHB and NJBA also argue that the regulations lack any provision for regulators to make an "individualized determination" regarding the need (if any) for shore access that may be generated by a particular project.

Among other things, the New Jersey regulations stipulate that any waterfront development along the Hudson River must include access for the public through dedicated walkways set aside as conservation easements.

In light of the Dolan decision, NAHB believes the Hudson River regulations are unconstitutional for several reasons. In the Dolan case, the Supreme Court ruled that local land use regulators must make an "individualized determination" so as to impose upon builders only those conditions that are "roughly proportional" to the impacts of the specific project on public resources. Without this reasonable connection, localities could demand amenities or land set-asides that are wholly inappropriate in exchange for development approvals.

NAHB believes the Hudson River regulations are textbook examples of a state leaving no room for an "individualized determination," since the regulation requires developers of all waterfront projects to construct and maintain walkways for public recreational use. The regulation also stipulates that its purpose is to provide shore access for the public generally, not merely the residents or users of any proposed development.

NAHB also found the statute especially egregious because property owners must dedicate and set aside any waterfront access area through a conservation easement.

The regulations' most serious flaw may be its lack of land-use flexibility, since there is no mechanism to allow any real variance from the public walkway/dedication requirement. In fact, the only straying from the requirements allowed is for when a developer provides greater public access than specified in the regulation.

In the wake of Dolan, flat dedication requirements have become susceptible to legal challenges. Government officials nonetheless continue to condition approval of a real estate project or development in a way that requires the dedication of private lands for public uses, or for the protection of natural resources, far beyond the extent of the particular project's impacts on those natural resources.

Published: June 11, 1998

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