TOMS RIVER — A few months before a $128 million beach replenishment project is set to start for a 14-mile stretch of Ocean County, a Superior Court judge on Monday started hearing testimony over whether the work should be done in Bay Head.
While the group of residents contends the existing dune system works fine, the state insists the work is crucial there to providing consistent storm protection for one of the areas hardest hit by Hurricane Sandy.
In this latest showdown over whether the state has the right to take a portion of oceanfront property for coastal beach replenishment, these residents say the decision for the project to take place there was based on flawed and antiquated data.
“We’re really here to talk about one thing, and that one thing is whether that taking is necessary – or arbitrary,” said Anthony Della Pelle, an attorney for a group of property owners fighting the replenishment project, told Assignment Judge Marlene Lynch Ford.
$128M contract awarded for northern Ocean County beach replenishment work
In this hearing that is expected to last a week, Della Pelle and attorney Peter Wegener say they plan to show that the group of oceanfront residents – which also includes a few from neighboring Mantoloking – have a solid dune system and a repair protocol in place to protect them and their towns in future storms.
Della Pelle said the state relied on flawed data about the rock wall currently in place on the beach and accused the state of arbitrarily grabbing oceanfront property.
“This is the opportunity for the court…to check on the government’s awesome exercise of eminent domain here, to make sure it’s being used properly and to make sure it’s not being abused,” Della Pelle argued.
The residents acknowledged that the dune system, which consists of a rock wall covered by 2 feet of sand and vegetation, was flawed before Hurricane Sandy hit in October 2012, but said changes made since the devastating storm make it even more reliable than the federal project.
“That system has worked. It has resulted in the protection,” Della Pelle said.
He argued the state relied on computer modeling that didn’t take into account the current wall and instead relied on data collected when the wall did not cover the full length of the beach, when the wall had gaps and when the dunes were a few feet lower.
Bay Head has had some form of dune protection since the late 1800s when an early form of a revetment was constructed. A rock wall about 4,300 feet long was constructed after a severe storm in 1962.
After Sandy, that wall was extended north to two properties into neighboring Point Pleasant Beach and south to five properties in Mantoloking to cover the entire length of Bay Head, resident Thacher Brown told Ford.
Attorneys for the state, who so far have succeeded in fighting off other similar legal challenges, went on the offensive, insisting the work is warranted for nearly all of the New Jersey coastline for storm protection.
Stephen Eisdorfer, an attorney representing the state Department of Environmental Protection, said the dunes are designed to reduce property damage and to protect recreational beaches.
“The beach is part of what makes New Jersey New Jersey,” Eisdorfer said in his opening arguments.
New Jersey’s coastline has experienced many storms, which has taught officials how to best design ways to provide that protection, he said.
“The project was designed to be continuous, uniform and gapless,” he said.
Eisdorfer represented the DEP when Margate fought the state’s attempt to take its municipally owned part of the beach by eminent domain for beach replenishment after Sandy. A Superior Court judge in April ruled the state could use eminent domain to seize 87 lots owned by the city for the replenishment project.
To do the work, the state has had to obtain from the residents property easements to build the 20-foot-high dunes and more than 100-foot-wide beaches.
Gov. Chris Christie has called those refusing to voluntarily grant those easements “selfish” and has accused them of being more concerned with their ocean view than with protecting themselves and their neighbors.
Brown, whose primary home is in Pennsylvania, said that before Sandy, his ocean view was blocked on the first- and second-floors of his summer home by dune that naturally grew to 28-feet high at its peak over decades.
He said he objects to signing over an easement because he would lose control over that portion of his property for dune maintenance. He said there would be no guarantee that the federal government would have the money to make the necessary repair to the dunes as needed.
Thomas Gage, president of the Bay Head Improvement Association, which maintains the beach, said oceanfront residents pay for sand to be pushed up onto the beach to rebuild damaged dunes and to cover exposed parts of the rock wall after bad storms.
The sand push – handled by a private contractor – usually takes place in spring, around March or April, when the sand has returned to the beach from offshore sandbars, Gage said.
He said that although the sand push is voluntary, he is not aware of any homeowner who has refused to do it.
The proposed work is part of a $128 million project scheduled to start this spring for a 14-mile stretch of the northern Ocean County peninsula from Point Pleasant Beach to Berkeley Township.
MaryAnn Spoto may be reached at mspoto@njadvancemedia.com. Follow her on Twitter @MaryAnnSpoto. Find NJ.com on Facebook.
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