Margate loses in dune fight

In the contentious battle over Gov. Christie's desire to build dunes along the entire coast of New Jersey, a judge in Atlantic County ruled Monday that the state may seize 87 municipally owned parcels in Margate needed to restart a $40 million shore protection project.

Superior Court Judge Julio Mendez said the state's use of eminent domain was "not arbitrary and capricious" or an abuse of the state's power.

In the 65-page ruling, Mendez wrote that the Army Corps of Engineers' plan had been developed over six years, involved numerous experts working thousands of hours, and was adopted by Congress.

He said he was satisfied that the Absecon Island Plan had been shown to "protect vulnerable coastal communities from significant storms, and prevent the loss of human life and property."

"The State of New Jersey has taken the lessons learned from Hurricane Sandy to heart," Mendez wrote.

The ruling paves the way for the state to take the properties needed for the project, which would finish the dune system in Ventnor and build new dunes in Margate and Longport, "without further delay," said Leland Moore, spokesman for the New Jersey Attorney General's Office.

Mendez ordered that "commissioners" be appointed to oversee the compensation end of the eminent domain process, which has included Christie's calling the city of Margate selfish, and Margate saying it would refuse to be bullied into giving up its land.

The state is also using eminent domain to gain access to easements owned by a handful of beachfront property owners in Margate, including Bart Blatstein, the Philadelphia and Atlantic City developer.

Bob Considine, a DEP spokesman, initially wrote in an email that the state had "remaining outstanding real estate issues" to resolve before rebidding the project with the Army Corps, but shortly afterward said all the court cases had been resolved.

Blatstein, however, said he considered the matter of his Margate property unresolved with the state, which has notified him it is taking an easement in front of his beachfront home. The compensation end is unresolved.

"I am one of a bunch," Blatstein said by telephone. "There's land in front of the bulkhead that a bunch of us own. They offered us nothing. We did not sign any documents."

Considine said the state "will work with the Army Corps to rebid the project as quickly as possible."

In a statement, DEP Commissioner Bob Martin said Mendez's ruling, coupled with a similar ruling last month against homeowners in Ocean County, "clearly signals the authority of the state and the federal government to acquire property for the purpose of shore protection."

Christie has criticized homeowners in Margate, Long Beach Island, and elsewhere who have fought the state's attempts to take their property for the dunes.

After Sandy, Christie ordered that the DEP, together with the Army Corps, complete long-planned projects that would place a protective dune along the entire 127-mile coastline.

Thomas Biemer, a lawyer with Dilworth Paxson retained by Margate, said Monday that no decision had been made on whether to appeal the ruling.

"Obviously the judge gave it a great deal of consideration," Biemer said. "He wrote a 65-page opinion. Obviously Margate's disappointed in the result, but we respect the process. We have legitimate concerns for this project. These don't go away."

Margate Mayor Mike Becker said he was disappointed but declined to comment further. Dan Gottlieb, who spearheaded a Margate citizen-led push for a city referendum to fight the state plan, also declined comment.

Margate residents twice voted to pay for legal action to block the dune plan, which they object to for various reasons, including the cost, the effect on the beach, and the more significant role that the back bays, rather than the ocean, have played in past damage from storms. They have argued that the current bulkheads provide enough ocean front protection.

But Mendez, while acknowledging the bayside flooding problem, said that "does not render this coastal protection project arbitrary and capricious."

Mendez also said that Margate's beaches had grown because of migrating sand from the dune the state built in adjacent Ventnor, and that the Margate beaches are wider than before the start of the project on Absecon Island.

Mendez said he "finds it somewhat disingenuous that some of Margate's witnesses would not acknowledge that their beach has grown substantially over the years as a result of the dune in Ventnor."

Mendez also agreed with the state that the dune was "the more cost-effective option" than Margate's preferred bulkhead and berm alternative, which he said would need fortifying to meet Army Corps standards.

He also disagreed with statements that the Margate bulkhead option was not fully considered by the state, and said the bulkheads "yielded a significantly worse result" than the dunes.

Jeff Tittel of the New Jersey Sierra Club said the dunes would be ineffective if the state did not also remove the hard-structured bulkheads behind them.

Attorneys for Margate argued that the state was relying on outdated and flawed data and modeling to justify its plan to seize the easements by eminent domain. The state initially tried to take the land by administrative order, a move blocked by Margate in federal court.

Mendez, however, was not persuaded that the modeling technology used by the state, known as SBEACH, was flawed.

He further concluded that the Sandy Relief Act did not, as Margate argued, require the Army Corps to conduct a new feasibility study.

Mendez said that as of September 2013, about 2,850 easements for various storm damage reduction projects across the state had yet to be obtained. Two and a half years later, about 2,500 of those have been acquired voluntarily.

"The majority of New Jersey coastal communities have voluntarily participated," Mendez said.

The parcels in Margate sought by the state consist of easements over 47 municipally owned blocks, 40 "paper streets or paper-street ends," and temporary easements over two municipally owned areas.

Margate is the only municipality on Absecon Island that opposes the project.

arosenberg@phillynews.com

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