Builders Ask Court to Strike Down N.J. Hudson River Waterfront Easement Regulation as Unconstitutional
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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