| Issue 234 | August 20, 1999 |
Bayonne-GWB Walkway Appears Safe
In a victory for the NJ Dept. of Environmental Protection and conservation
groups, Federal District Judge Garrett Brown, Jr. ruled that the public
has a "public trust" right of access to the Hudson River.
"This is a major triumph for people who use and enjoy the state's
waters," proclaimed Michelle Marean, of the Hudson River Waterfront
Conservancy, one of the groups intervening for the NJDEP to defend the
public's right to use a walkway being constructed along the Hudson.
DEP Commissioner Robert W. Shinn stated, "In order to enable the residents of New Jersey to enjoy their inherent rights to access the water's edge, DEP initiated the policy to ensure development of the walkway and we're pleased that this court ruled in favor of preserving public access."
A DEP regulation requires developers along NJ's Hudson waterfront to build and maintain a 30-foot-wide walkway through their projects. The ultimate plan is for an 18-mile public promenade, from the George Washington Bridge to Bayonne.
Ann Alexander, an attorney for the Rutgers Environmental Law Clinic, observed that the development interests' lawsuit represented the first time in the nation that an entire scheme of regulations designed to protect the public's right of access to the water had been challenged on constitutional grounds. "This case has important implications for fights across the country," she said. "There has been a disturbing trend of late toward waterfront privatization, but this decision sends a clear signal to developers that there are limits to that trend."
The challenge to the walkway requirement had originally been brought by the National Association of Home Builders and its New Jersey counterpart against the NJ DEP, claiming that the requirement amounted to an unconstitutional "taking" of private property without just compensation. The judge granted the right to join the lawsuit as intervenors to the conservation groups, represented by Ms. Alexander.
Judge Brown's ruling concluded that the regulations requiring construction and maintenance of the walkway by developers who receive permits are well within the State's land use regulation power.
The Home Builders' suit began in 1998, more than ten years after adoption of the rule requiring walkway construction. The intervenor groups include Hudson River Waterfront Conservancy, NRDC, American Littoral Society, NY/NJ Baykeeper, Coalition for a Better Waterfront and Friends of Weehawken Waterfront.
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