Brief in Support of Application for a Preliminary Injunction (2).pdf

8/10/2019 Brief in Support of Application for a Preliminary Injunction (2).pdf

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117834320_1

UNITED STATES DISTRICT COURTFOR THE DISTRICT OF NEW JERSEY

_________________________________________

MARGATE CITY, NEW JERSEY, ::

Plaintiff, : Civil Action No. 14-cv-7303v. :

::

UNITED STATES ARMY CORPS OF :ENGINEERS and NEW JERSEY :DEPARTMENT OF ENVIRONMENTAL :PROTECTION, :

Defendants. : __________________________________________

ORDER

AND NOW, on this __ day of December 2014, this matter having been brought before

the Court by the City of Margate ( Margate ), through its attorneys Dilworth Paxson LLP,

pursuant to Rule 65 of the Federal Rules of Civil Procedure and Local Rule of Civil Procedure

65.1 for a Temporary Restraining Order and Order to Show Cause Why a Preliminary Injunction

Should Not Issue [Docket No. 3] to enjoin the United States Army Corps of Engineers (the

Corps ) from awarding a contract to construct, and from commencing construction of, sand

dunes on Margates property; the Court having considered the papers of the parties; and for good

cause shown;

IT IS HEREBY ORDERED that Margates Application for a Preliminary Injunction is

GRANTED , the Court having found:

Case 1:14-cv-07303-RMB-JS Document 10-1 Filed 12/01/14 Page 1 of 2 PageID: 253


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1. Margate will suffer immediate and irreparable harm if the preliminary injunctionis denied because the Corps is likely to award a contract and commenceconstruction immediately, thereby damaging Margates beachfront property;

2. Granting this preliminary relief will preserve the status quo and will not result ingreater harm to the Corps;

3. The public interest will be served by the requested relief;

4. Plaintiff is likely to succeed on the merits of the underlying claims against theCorps; and

IT IS HEREBY FURTHER ORDERED that THE CORPS IS ENJOINED from

awarding any contract for the purpose of causing in the City of Margate any construction related

to the Absecon Island Coastal Storm Risk Reduction Project (the Project ), or any related

project which includes, but is not limited to, the construction of sand dunes on beaches in the

City of Margate or from commencing any such construction until the Court modifies this Order.

IT IS HEREBY FURTHER ORDERED that Plaintiffs $10,000.00 bond, which has

been posted as required by the Courts November 24, 2014 Order [Docket No. 5] shall serve as

continued security while the Preliminary Injunction ordered herein remains in effect.

IT IS SO ORDERED .

___________________________________ United States District Judge Renee M. Bumb



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MARGATE CITY, NEW JERSEY, :

Plaintiff, ::v. : C.A. No: 14-7303-RMB-AMD

:UNITED STATES ARMY CORPS OF ENGINEERS, :and :

NEW JERSEY DEPARTMENT OF ENVIRONMENTALPROTECTION,

::

Defendants. :

BRIEF IN SUPPORT OF APPLICATION FOR A PRELIMINARY INJUNCTION

Thomas S. Biemer, EsquireJordan M. Rand, EsquireRobert E. Andrews, EsquireDILWORTH PAXSON LLP1500 Market Street, Suite 3500EPhiladelphia, PA 19102Tel: 215-575-7000Fax: 215-575-7200Emails:[email protected];

[email protected];[email protected]

Attorneys for Plaintiff,City of Margate, New Jersey

Dated: December 1, 2014

Case 1:14-cv-07303-RMB-JS Document 10 Filed 12/01/14 Page 1 of 31 PageID: 222


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TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................................................................................... ii

I. INTRODUCTION ..................................................................................................................1

II. FACTS .................................................................................................................................2III. STANDARD ......................................................................................................................10

IV. ARGUMENT ....................................................................................................................11

A. Margate is Reasonably Likely to Prevail on the Merits. ...............................................11

1. Margate Has a Reasonable Probability of Succeeding on its Claim That theAdministrative Orders Are Invalid . ..............................................................................11

2. Margate is Reasonably Likely to Prevail on the Merits of its Claims Against theCorps Because the Corps Cannot Award the Contract and Commence Construction

in Reliance On the Invalid Administrative Orders. .....................................................21B. The Corps Imminent Conduct Will Irreparably Harm Margate. ..............................22

C. The Defendants will Not be Harmed by the Requested Injunctive Relief, and theRequested Relief Serves the Public Interest. ..................................................................25

V. CONCLUSION .....................................................................................................................26



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TABLE OF AUTHORITIES

FEDERAL COURT CASES

American Express Travel Related Servs. Co., Inc. v. Sidamon-Eristoff,755 F. Supp. 2d 556 (D.N.J. 2011) ...........................................................................................25

Assisted Living Assocs. of Moorestown v. Moorestown Twp.,996 F. Supp. 409 (D.N.J. 1998) ................................................................................................23

Association for Fairness in Business, Inc. v. New Jersey,82 F. Supp. 2d 353 (D.N.J. 2000) .............................................................................................25

Bosworth v. Ehrenreich,823 F. Supp. 1175 (D.N.J. 1993) ..............................................................................................23

City of Passaic v. Shennett,915 A.2d 1092 (N.J. Super. A.D. 2007) .............................................................................13, 15

Clark v. Rameker,

134 S. Ct. 2242 (2014) ..............................................................................................................16Communications Workers of America, AFL-CIO v. Christie,

994 A.2d 545 (N.J. Super A.D. 2010) ......................................................................................18 In re Bella Vista Associates, LLC,

No. 07-2241, 2007 WL 455891 (Bankr. D.N.J. Dec. 18, 2007) ...............................................24 Instant Air Freight Co. v. C.F. Air Freight, Inc.,

882 F.2d 797 (3d Cir. 1989) .........................................................................................10, 22, 23 Liberty Lincoln-Mercury, Inc. v. Ford Motor Co.,

171 F.3d 818 (3d Cir. 1999) .....................................................................................................12 Milgram v. Ginaldi

(N.J. Super. A.D. July 15, 2008) ........................................................................................ passim National Federation of Independent Business v. Sebelius,

132 S. Ct. 2566 (2012) ..............................................................................................................17 Perth Amboy Bd. of Educ. v. Christie,

997 A.2d 262 (N.J. Super. A.D. 2010) .....................................................................................18 RLR Investments, LLC v. Town of Kearny,

386 Fed.Appx. 84 (3d Cir. 2010) ........................................................................................11, 25 Rowe v. E.I. DuPont De Nemours and Co.,

262 F.R.D. 451 (D.N.J. 2009) ...................................................................................................22Shenango, Inc. v. Apfel,

307 F.3d 174 (3d Cir. 2002) .....................................................................................................12State v. Archer,

257 A.2d 1 (N.J. Super. A.D. 1969) .........................................................................................17Township of Readington v. Solberg Aviation Co.,

976 A.2d 1100 (N.J. Super. A.D. 2009) ...................................................................................21



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STATE COURT CASES

Borough of Essex Fells v. Kessler Institute for Rehabilitation,673 A.2d 856, 863 (N.J. Super. Ct. 1995) ................................................................................21

Borough of Merchantville v. Malik & Son, LLC,95 A.3d 709 (N.J. 2014) .................................................................................................1, 11, 25

Bridgewater Township v. Yarnell,314 A.2d 367 (N.J. 1974) .........................................................................................................10

County of Sussex v. Merrill Lynch Pierce Fenner & Smith,796 A.2d 958 (N.J. Super. Ct. 2001), affd , 796 A.2d 913 (N.J. Super. A.D. 2002) ....10, 11, 24

Hopkins v. DiCristi,2014 WL 4681044 (D.N.J. Sept. 22, 2014) ..............................................................................10

R.S. v. Somerville Bd. of Educ.,2011 WL 32521 (D.N.J. Jan. 5, 2011) ......................................................................................23

State by State Highway Commissioner v. Seaway, Inc.,217 A.2d 313 (N.J. 1966) .........................................................................................................16

OTHER AUTHORITIES

5 U.S.C. 706 ................................................................................................................................22 N.J. Const.art IV, 1 ,...18 N.J.S.A. 7....................................................................................................................................25 N.J.S.A. 12 ........................................................................................................................... passim N.J.S.A. 20 ........................................................................................................................... passim N.J.S.A. 4019, 20



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The City of Margate ( Margate ), through its attorneys Dilworth Paxson LLP, files this

Brief in Support of its Application for a Preliminary Injunction enjoining the United States Army

Corps of Engineers (the Corps ) from awarding a contract and, pursuant to that contract,

commencing construction upon Margates beaches.

I. INTRODUCTION

This case concerns the Corps reliance upon an unlawful exercise of eminent domain

authority by the New Jersey Department of Environmental Protection ( DEP ). The New Jersey

Supreme Court has explicitly recognized that no person may be deprived of property without

due process of law. Borough of Merchantville v. Malik & Son, LLC , 95 A.3d 709, 717 (N.J.

2014). To protect these rights, the New Jersey Legislature enacted the Eminent Domain Act of

1971 (the Act ), which mandates specific requirements designed to protect the rights of the

property owner. Here, the DEP completely ignored that process and purported to simply seize

Margates property by Administrative Order. In doing so, the DEP provided Margate with no

notice or opportunity to be heard prior to proclaiming that it had already taken the property. The

DEP also purported to take easements, rather than fee simple interests as required by statute, so

as to require Margate to pay future operations and maintenance costs associated with the project.

The DEP should be aware that its conduct is illegal as the Appellate Division of the New Jersey

Superior Court has specifically admonished the DEP in the past that the Act is the exclusive

procedure for effectuating such a taking. Milgram v. Ginaldi , 2008 WL 2726727, at*4 (N.J.

Super. A.D. July 15, 2008). 1

Nevertheless, in reliance upon the DEPs representation that it acquired the easements,

the Corps intends to imminently award a contract and commence construction of a nearly 2-mile

1 A copy of all electronic cases are attached hereto as Exhibit A.



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long stretch of 12.75-foot high, 25-foot wide sand dunes on Margates beaches despite the Citys

repeated, unequivocal protestations. Margate respectfully requests that the Court preliminarily

enjoin the Corps from awarding a contract and commencing construction on the Citys beaches

in violation of its rights.

II. FACTS

In October, 2012, Hurricane Sandy made landfall along the shores of New Jersey.

Although the consequences of Sandy have led to nearly universal agreement that New Jersey

needs to implement better storm protection strategies, a one-size-fits-all solution is not rational.

Understanding the unique geological and topographic characteristics of Margate, such as its

existing and extensive system of bulkheads -- which successfully prevented catastrophic damage

to the City as a result of Sandy -- Margate has attempted to present and advocate for storm

prevention strategies that it believes are more protective and cost-effective for the City and its

citizens. The Corps and the DEP have chosen not to even consider these alternatives and have

adopted the one-size-fits-all approach.

More specifically, immediately following Sandy, the Defendants indicated their intention

to implement in various coastal municipalities, including Margate, the Absecon Island Coastal

Storm Risk Reduction Project (the Project ), a storm damage reduction and coastal erosion

plan conceived nearly 20 years ago. The relevant portion of the Project calls for the construction

of 12.75-foot high, 25-foot wide sand dunes on the beaches of all four Absecon Island

municipalities - Atlantic City, Ventnor, Margate and Longport. Though the Defendants have

already constructed dunes in Atlantic City and Ventnor, they have yet to award a contract or

commence construction in Margate or Longport.

Initially, the DEP attempted to acquire, by agreement, permanent easements upon

Margates beaches so that the Corps could proceed with construction. Margate, uncertain that



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the Project would be effective or that it accounted for the Citys distinct characteristics vis--vis

other shore municipalities, declined to grant the requested easements. Instead, Margate

endeavored to do two things: (1) ascertain the will of its citizens; and (2) determine, based on

expert analysis, and in light of the relative success of the Citys existing storm damage reduction

measures during Sandy, whether the Project was in the Citys best interests.

The will of Margates citizens quickly became clear. In August 2013, the citizens of

Margate formed Margate Citizens Questioning the Beach Project ( MCQBP ). See

http://www.mcqbp.org/about.html. The stated mission of MCQBP is to educate and inform

Margate citizens about the Project and to SAVE MARGATE beaches. Id . Unfortunately, asopposition to the Project grew in Margate, the State of New Jerseys insistence that the Project

be immediately implemented increased.

On September 25, 2013, Governor Chris Christie issued Executed Order No. 140 ( EO

140 ).2 Recognizing that the land upon which the Defendants intend to build the Project is

privately owned, EO 140 orders the DEP to create an Office of Flood Hazard Risk Reduction

Measures to lead and coordinate the efforts of the DEP to acquire the necessary interests in real

property from recalcitrant property owners who have not already granted voluntary

easements. EO 140 states in relevant part:

WHEREAS, employing the procedures set out in [the Act] N.J.S.A. 20:3-1 et seq., public entities are empowered to condemn private property for public purposes, including the creation ofFlood Hazard Risk Reduction Measures; and

WHEREAS, pursuant to N.J.S.A. 12:3-64, the [DEP] is authorizedto acquire any lands in the State that it deems advisable, and mayenter upon and take property in advance of making compensationtherefore where for any reason it cannot acquire the property byagreement with the owner

2 Attached as Exhibit B.



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Pursuant to this authority, EO 140 orders the Attorney General of the State of New Jersey

(NJAG ) to immediately take action to coordinate those legal proceedings necessary to

acquire the necessary easements or other interests in real property for the [Project].

The authority specifically referenced in EO 140 are contained within the Act and require

certain procedures before the subject property can be taken. Those procedures include, among

other things, pre-condemnation appraisal, negotiations, the initiation of legal proceedings and the

condemnees opportunity to object to the condemnors authority to take its property. 3 After

Governor Christie issued EO 140, the NJAG and DEP nevertheless did not initiate the process

mandated by the Act. Instead, the DEP continued to request voluntary easements from Margate.To further ascertain the will of its citizens and guide the decision as to whether to grant

the requested easements, on November 4, 2013, Margate put to referendum the question of

whether its citizens supported the Project. An overwhelming majority of Margates citizens

voted against the Project. As a consequence, Margate again declined to grant voluntary

easements. Still, the DEP and the NJAG refrained from initiating condemnation proceedings.

Despite Margates voter-expressed opposition to the Project, the Defendants continued to

move forward. On June 23, 2014, the DEP and the Corps entered into a Project Partnership

Agreement to complete construction in Margate. Project commencement appearing imminent,

Margate engaged an expert engineer to analyze the Project and additionally began to solicit

guidance on how it might address the differing views of the DEP and the citizens of Margate.

In late August and early September 2014, Margate commenced a dialogue with the DEP.

Both parties appeared willing to negotiate in good faith for the purpose of trying to reach a

mutually acceptable resolution without resort to litigation. Margate also engaged Charles J.

3 See N.J.S.A. 20:3-6, 20:3-8, 20:3-11 and 20:3-19.



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Rooney, P.E., P.P. of T&M Associates to analyze the Project plans and specifications so that the

City could assess, from a technical perspective, whether the Project was in the Citys best

interests. On September 11, 2014, notwithstanding the parties intentions to conduct

negotiations with respect to the Project and the DEPs failure to acquire the necessary property

interests from Margate, the Corps issued a request for proposal for the Project.

On September 22, 2014, Mr. Rooney issued his report. 4 Mr. Rooney, having reviewed

the Project plans and specifications, concluded as follows:

1. Based on the fact Margate City has a contiguous bulkhead along its entireoceanfront, one could argue it should have been analyzed separately [from

Ventnor and Longport].5

2. [I]t would appear the elimination of this alternative [bulkhead restoration] was premature. Although the bulkhead heights do vary along the Margate Cityoceanfront there is a contiguous line of protection which does prevent someinundation and does provide some storm drainage prevention benefits to theCity. Mr. Rooney deemed problematic the elimination of a beachrestoration/bulkhead alternative as a viable option. 6

3. It is unclear in reviewing the report if the decision to eliminate the beachrestoration with no dune alternative included the existing bulkheads in theanalysis. These issues (questions) have a direct bearing on the conclusion of thestudy. 7

4. In the Project report, the Corps states the incorporation of a dune in the [Project]would require minimal O&M activities and costs over the project life. I stronglydisagree with this statement. The very nature of the dune and its proximity to theadjacent residences and street ends will require a major effort by Margate City toretain the dimensions of the dune and manage windblown sand which could

potentially accumulate in and around the homes and onto the streets. 8 Mr.Rooney further concluded there is [i]nsufficient area to allow the City to

properly maintain the dune footprint. 9

4 Attached as Exhibit C.5 Ex. C at p. 2.6 Ex. C at p. 3, 4.7 Ex. C at p. 3.8 Ex. C at p. 4.9 Ex. C at p. 4.



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5. The Project Feasibility Report neglects to address street end drainage (scupper)systems. In addition, per the Director of Public Works five ocean outfall pipesexist along the shoreline whereas only one is addressed in the plan. 10

6. Another alternative that should have been reviewed is an elevated berm[essentially the trunk of the beach] (berm cap) which was successfully analyzedand utilized in the [Corps] Study for Manasaquan Inlet to Sandy Hook. Avariation of a raised berm for additional consideration would be a stepped bermelevation with a higher berm elevation of 2 to 3 feet higher at the back end of the

beach stepping down to the recommended berm elevation moving seaward. 11

Margate, however, never had the opportunity to present Mr. Rooneys findings to the

Defendants or to negotiate with respect to any aspect of the Project. While the DEP represented

that it would follow the condemnation procedures required under the Act, and despite its

representation that the first step in that process would be an appraisal of the subject property

between late October and late November, neither of those circumstances occurred. 12

Instead, on October 1, 2014, the DEP abruptly filed in the Atlantic County Clerks Office

three Administrative Orders. Administrative Orders No. 2014-13, 2014-14 and 2014-15 (the

Administrative Orders )13 purport to take immediate permanent easements in Margates

coastal property for the purpose of constructing sand dunes in furtherance of the Project. The

DEP provided no notice or opportunity to be heard to Margate prior to filing the Administrative

Orders. It provided Margate with no opportunity to object thereafter. In the DEPs view, upon

the filing of the Administrative Orders, the taking was complete.

The language of the Administrative Orders explains why the DEP needed the easements:

WHEREAS, the State is the Non-Federal Sponsor for the Project pursuant to the [Project Partnership Agreement with the Corps]and is responsible for obtaining necessary real estate interests; and

10 Ex. C at p. 4.11 Ex. C at p .4.12 See Letter from DEP Commissioner Bob Martin to Mayor Michael Becker datedSeptember 22, 2014, attached as Exhibit D.13 Attached as Exhibit E.



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WHEREAS, the [Corps], in coordination with the State of NewJersey, is scheduled to begin construction of the Project in the Cityof Margate and the Borough of Longport in or about December,2014; and

WHEREAS, prior to construction, the [Corps] requires that theState provide the easements and/or other real property interests thatare necessary to construct and maintain the Project; and

WHEREAS, if the State does not obtain all required easementsand/or other real property interests in the City of Margate, the[Corps] cannot construct the [Project] 14

The Administrative Orders also make clear that the DEP believes that it can take Margates

property with no notice or opportunity to be heard whatsoever, stating that the DEP hereby

immediately enters upon and takes real property interest(s) in those parcels set forth in Exhibit

A. 15 The interests purportedly acquired by the DEP were not titles in fee simple, but Perpetual

Storm Damage Reduction Easement[s]. 16 Critically, N.J.S.A. 12:3-64, which grants the DEP

condemnation authority under the Act, does not permit the taking of easements and, to the

contrary, requires the DEP to take fee simple interests through condemnation.

Thus, the Administrative Orders purport to constitute a completed taking of Margates

property, without respect to Margates rights under the Act or the limits of the DEPs

condemnation powers. When Margate learned of the Administrative Orders, it was concerned

that the DEP no longer intended to engage in negotiations. Still preferring negotiations to

litigation, but mindful of the need to preserve its right to dispute the legality of the

Administrative Orders, Margate requested that the parties enter into a Standstill and Tolling

Agreement.

14 Ex. E at p. 3.15 Ex. E at p. 3.16 Ex. E at Exhibit C, p. 1.



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On October 2, 2014, the DEP and Margate entered into a Tolling and Standstill

Agreement. 17 The Tolling and Standstill Agreement placed the DEP on notice of Margates

objection to the Administrative Orders as valid takings and preserved all rights, causes of action

and defenses that Margate might have.

Still not having had any opportunity to participate in negotiations, Margate grew

increasingly concerned that the Corps, despite Margates objection to the Administrative Orders,

appeared to be moving ahead with the Project. On October 28, 2014, Margate, through counsel,

sent a letter to Keith Watson, Project Manager, advising the Corps of Margates objection to the

Administrative Orders and of the Tolling and Standstill Agreement between Margate and theDEP. 18 The Corps did not respond to this letter. Rather, on October 30, 2014, the Corps opened

bids related to the Project.

On November 4, 2014, Margates citizens participated in a second Project-related

referendum. Margates citizens voted in favor of bringing legal action to stop the construction of

dunes on its beaches. Margate, still hoping in earnest to avoid litigation, endeavored to

determine whether the Corps would refrain from awarding the Project contract (the Contract )

until the DEP and Margate had at least had the opportunity to meet and negotiate. Indeed,

negotiation sessions had been initially scheduled, and the parties were in the midst of attempting

to reschedule a meeting for mid-November.

On November 7, 2014, Margate, through counsel, sent a letter to the Corps General

Counsel in its Philadelphia Office, Bill Wilcox, Esquire, advising the Corp that the DEPs and

Margates dispute had not been resolved but that the parties were in the process of scheduling

17 Attached as Exhibit F.18 Attached as Exhibit G.



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Restraining Order and Order to Show Cause Why Preliminary Injunction Should Not Issue (the

Motion ) (Docket No. 3). On November 24, 2014, the Court granted Margates Motion

(Docket No. 5). As ordered, Margate immediately provided notice via electronic mail to

opposing counsel, Mr. Apy for the DEP and Mr. Wilcox for the Corps. 21

III. STANDARD

To obtain a preliminary injunction, the movant must show: (1) a likelihood of success

on the merits; (2) that he will suffer irreparable harm if the injunction is denied; (3) that granting

the preliminary relief will not result in greater harm to the non-moving party; and (4) that the

public interest favors such relief. Hopkins v. DiCristi , 2014 WL 4681044, at *1 (D.N.J. Sept.

22, 2014). Notably, the Third Circuit has construed the likelihood of success requirement as a

mandate that a movant demonstrate only a reasonable probability of eventual success in the

litigation. Instant Air Freight Co. v. C.F. Air Freight, Inc ., 882 F.2d 797, 800 (3d Cir. 1989).

Here, the standard is easily met. The Act requires the DEP to commence eminent domain

proceedings in New Jersey Superior Court and to provide Margate with notice and an

opportunity to be heard. In fact, the Act provides the exclusive procedure for taking private

property for public use[.] Milgram , 2008 WL 2726727 at *4. The DEP has declined to follow

the statutorily required process. Had the DEP instituted condemnation proceedings, it is well-

settled that in the case in which the defendant denies that the condemnor is authorized to take

the property, it is appropriate to postpone the physical occupancy of the property by the plaintiff

until the Court has ruled on the basic validity of the proposed taking. County of Sussex v.

Merrill Lynch Pierce Fenner & Smith , 796 A.2d 958, 961 (N.J. Super. Ct. 2001), affd , 796 A.2d

913 (N.J. Super. A.D. 2002); see also Bridgewater Township v. Yarnell , 314 A.2d 367, 369 (N.J.

1974) (holding Appellate Division erred in denying motion for stay pending appeal because the

21 Attached as Exhibit I.



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Act specifically requires proceedings to be stayed where authority to condemn is denied). The

basic legislative intent of [the Act] is to make sure that, where there is a denial of the authority to

take, there is no ousting of the defendant from possession of the property until the Court has

made a definitive ruling to the effect that the taking is one which is authorized by law. County

of Sussex , 796 A.2d at 961.

Here, the DEP failed to follow the Act, or any process, by which Margate would have

had notice and an opportunity to be heard prior to the DEP declaring a completed taking pursuant

to the Administrative Orders. As the Corps is wholly relying on the DEPs purported taking, it is

appropriate for the Court to enjoin the Corps from awarding the Contract and commencingconstruction until the Court makes a final determination as to the validity of the Administrative

Orders and the Corps intended course of action in reliance thereon.

IV. ARGUMENT

A. Margate is Reasonably Likely to Prevail on the Merits.

1. Margate Has a Reasonable Probability of Succeeding on its Claimthat the Administrative Orders are Invalid.

a. The Administrative Orders violate the Act.

The New Jersey Supreme Court has explained that [e]minent domain involves the taking

of private property, and has always been subject to constitutional limits. Borough of

Merchantville v. Malik & Son, LLC , 95 A.3d 709, 716-17 (N.J. 2014). These limits are only

satisfied so long as property owners have reasonable notice and the opportunity to be heard

before the final determination of judicial questions that may be involved in the condemnation

proceedings. RLR Investments, LLC v. Town of Kearny , 386 Fed.Appx. 84, 89 (3d Cir.

2010). Here, the DEP declined to give Margate any notice or opportunity to be heard prior to

declaring a completed taking pursuant to the Administrative Orders.



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The Act required the DEP to follow a detailed process that protects condemnees rights.

The Act states: Whenever any condemnor shall have determined to acquire property pursuant

to law, including public property already devoted to public purpose, but cannot acquire title

thereto or possession thereof by agreement the condemnation of such property and the

compensation to be paid therefor and all matters incidental thereto and arising therefrom shall

be governed, ascertained and paid by and in the manner provided by this act. N.J.S.A.

20:3-6. The Act defines condemnor as the entity, public or private, including the State of

New Jersey. N.J.S.A. 20:3-2(b). Pursuant to the settled rules of statutory construction, [i]n

the absence of a specific definition, the language of the statute should be given its ordinarymeaning and construed in a common sense manner to accomplish the legislative purpose.

Liberty Lincoln-Mercury, Inc. v. Ford Motor Co ., 171 F.3d 818, 822 (3d Cir. 1999). The term

shall, though not defined in the Act, is generally mandatory when used in a statute.

Shenango, Inc. v. Apfel , 307 F.3d 174, 193 (3d Cir. 2002). Thus, any public entity, including the

DEP, must comply with the Act to acquire property by eminent domain.

Under the Act, a condemnor must, prior to instituting condemnation proceedings in the

New Jersey Superior Court, attempt to acquire the property at issue through bona fide

negotiations, which negotiations shall include an offer in writing by the condemnor to the

prospective condemnee setting forth the property and interest therein to be acquired, the

compensation offered to be paid and a reasonable disclosure of the manner in which the amount

of such offered compensation has been calculated ... Prior to such offer the taking agency shall

appraise said property and the owner shall be given an opportunity to accompany the appraiser

during inspection of the property. N.J.S.A. 20:3-6. Thereafter, the condemnor must give the

condemnee 14 days to accept or reject the offer. Id . These bona fide negotiations are essential to



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the condemnation process as the purpose of the Legislature in enacting N.J.S.A. 20:3-6 was

to encourage entities with condemnation powers to make acquisitions without litigation.

City of Passaic v. Shennett , 915 A.2d 1092, 1096 (N.J. Super. A.D. 2007) (internal quotations

and citations omitted). These requirements are not only essential, they are jurisdictional. New

Jersey courts may not even entertain condemnation proceedings where the condemnor has failed

to comply with the foregoing requirements. Id . at 1097.

Here, the DEP failed to comply with the Act, and the Administrative Orders therefore

have no legal effect, a fact of which the DEP should have been aware given its past experience

with deviations from the Act. In Milgram v. Ginaldi , the DEP similarly attempted to circumventthe Act to acquire easements in Long Beach Island, New Jersey. 2008 WL 2726727. There, as

here, the DEP, in conjunction with the Corps, intended to construct dunes on private and

municipally-owned beaches. Id . at *1. In fact, the DEP sought to first obtain voluntary Storm

Damage Reduction Easements, precisely as it has done in this case. Id . at *2. When it was not

successful, rather than following the procedures required under the Act, the DEP filed a

complaint and order to show cause seeking a preliminary injunction requiring property owners to

grant easements for shore protection purposes and enjoining property owners from interfering

with construction. Id .

The trial court dismissed the DEPs complaint, and the Appellate Division affirmed

because the DEP failed to follow the procedures required by the Act. Id . at *3. In particular, the

Appellate Division noted the above-cited provisions of N.J.S.A. 20:3-6 and held: a demand

for a perpetual easement from these defendants amounted to a taking of private property without

just compensation. To accomplish this apparently legitimate public purpose, [the DEP] was

required to comply with the procedural requirements of [the Act]. Id . at *4. The Appellate



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Division in fact explicitly recognized that Act is the exclusive procedure for taking private

property for public use[.] Id .

The exact same logic demonstrates why injunctive relief is necessary. The DEP has

purposefully undermined the essential purpose of the Act by depriving Margate of the right to

participate in negotiations. It has also deprived Margate of its rights by denying it any notice or

the opportunity to be heard i.e, to object to the DEPs authority to condemn via the

Administrative Orders. The Act, moreover, expressly states that [w]hen the authority to

condemn is denied, all further steps in the action shall be stayed until that issue has been finally

determined. N.J.S.A. 20:3-11. The DEPs failure to afford Margate its guaranteed right to beheard, and more specifically to object, renders the Administrative Orders legal nullities.

In sum, the DEP undermined the essential purpose of the Act and wholly deprived

Margate of the opportunity to challenge that conduct. Margate is therefore reasonably likely to

succeed on the merits of its claim that the Administrative Orders are invalid.

b. N.J.S.A. 12:3-64 requires the DEP to comply with the Actand prohibits the taking of easements.

The DEP will no doubt argue that it does not have to comply with the Act in reliance on

N.J.S.A. 12:3-64. That position, in addition to being rejected implicitly by the New Jersey

Superior Court Appellate Division in Milgram , fails because N.J.S.A. 12:3-64 both requires

compliance with the act and does not apply to easements.

The DEPs eminent domain authority arises under N.J.S.A. 12:3-64. That statute states:

The [DEP] may acquire title, in fee simple , in the name of the State, by gift, devise or purchase

or by condemnation in the manner provided in chapter one of the Title Eminent Domain (20:1-

1 et seq.) to any lands in the State, including riparian lands, of such area and extent which, in the

discretion of the department, may be necessary and advisable. (emphasis added). The language



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clearly requires the DEP to follow the procedures set forth in the Act. Further, the DEP is only

authorized to take title to property in fee simple, even if it complies with the Act.

Here, the DEP failed to comply with its enabling legislation, both procedurally and

substantively. Instead of complying with the Act, it filed the Administrative Orders so as to

deprive Margate of any notice or opportunity to be heard. Instead of taking title in fee simple,

the DEP purported to take perpetual easements so as to require Margate to bear the costs

associated with future dune maintenance. In light of the plain and mandatory language of the

Act and N.J.S.A 12:3-64, the Administrative Orders have no legal effect.

The DEP may nevertheless argue that N.J.S.A. 12:3-64 permits it to effectuate takingswithout complying with the Act. It will likely rely upon the provision of the statute that states:

The department may enter upon and take property in advance of making compensation therefor

where for any reason it cannot acquire the property by agreement with the owner. This section,

however, only relieves the DEP of the requirement that it make compensation upon the taking. It

does not, and indeed cannot reasonably, mean that the DEP may ignore all of the other

provisions of the Act.

As an initial matter, this construction is directly contrary to the purpose of the Act.

We know that the purpose of the Legislature in enacting [the Act]was to encourage entities with condemnation powers to makeacquisitions without litigation. Such a procedure thereby saves

both the acquiring entity and the condemnee the expenses anddelay of litigation. It permits the landowner to receive and keepfull compensation. This purpose is furthered by strict constructionof [the Act]. If a condemnor may ignore the statute and later curethe proceedings, the purpose of [the Act] will be completelyfrustrated.

City of Passaic , 915 A.2d at 1096 (quotations omitted).

In addition to undermining the purpose of the Act, there are six fatal flaws in the DEPs

construction of this language. First , if the foregoing language meant that the DEP did not have



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to comply with the Act at all, N.J.S.A. 12:3-64s first sentence, which requires compliance

with the Act, would be superfluous. A statute should be construed so that effect is given to all

its provisions, so that no part will be inoperative or superfluous. Clark v. Rameker , 134 S. Ct.

2242, 2248 (2014). The DEPs interpretation renders the first sentence of N.J.S.A. 12:3-64

meaningless, and it is therefore untenable.

Second , a more logical reading of the statute can give effect to both sentences. The Act

provides a two-part procedure by which a condemnor may take immediate physical possession of

property. First, the condemnor may [a]t any time contemporaneous with or after the institution

of the action and service of process also file in the recording office, a declaration oftaking. N.J.S.A. 20:3-17. Second, [s]imultaneously with the filing of the declaration of

taking, the condemnor shall deposit the amount of such estimated compensation with the clerk of

the court. N.J.S.A. 20:3-18. The language upon which the DEP may rely in support of the

Administrative Orders does not dispense with the entirety of the Act, only of the latter

requirement that the DEP pay compensation immediately upon filing a declaration of taking and

taking physical possession of property.

Third , this is precisely the interpretation accorded by Courts to statutes containing

identical language with regard to the condemnation authority of other New Jersey State agencies.

See, e.g., State by State Highway Commissioner v. Seaway, Inc ., 217 A.2d 313, 314 (N.J. 1966)

(State Highway department took possession only after instituting condemnation proceedings, but

was not required to deposit a fund in court prior to his entry upon the land as a result of

identical language to that contained in N.J.S.A. 12:3-64).

Fourth , the remainder of N.J.S.A. 12:3-64 specifically reinforces the view set forth

above. It states: Upon the department exercising the right of condemnation and entering upon



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and taking land in advance of making compensation therefor it shall proceed to have the

compensation fixed and paid to the owner, as provided in said chapter one of the Title Eminent

Domain . N.J.S.A. 12:3-64 (emphasis added). Thus, the DEP must file a complaint as

required under the Act. It must file a declaration of taking, as also required under the Act. But it

may forego the making of just compensation until the amount of compensation has been

determined by permitting the procedures required under the Act to conclude . Clearly, N.J.S.A.

12:3-64 requires the proceedings mandated by the Act.

Fifth , there is no indication that N.J.S.A. 12:3-64 was intended to give the DEP more

powerful condemnation authority than any other agency or even the State itself. Indeed, in theonly published decision concerning the DEPs eminent domain powers under N.J.S.A. 12:3-64,

the DEP itself followed the procedures set forth in the Act. See State v. Archer , 257 A.2d 1, 2

(N.J. Super. A.D. 1969) (DEPs predecessor entity instituted condemnation by complaint in New

Jersey Superior Court to acquire property in Raritan Bay and Sandy Hook Bay [i]n conjunction

with a Federal project for beach erosion control and hurricane protection).

Sixth, and finally, the DEPs urged construction would eliminate any process prior to

effectuating a taking in violation of a condemnees rights. The rule is settled that as between

two possible interpretations of a statute, by one of which it would be unconstitutional and by the

other valid, our plan duty is to adopt that which will save the [statute]. National Federation of

Independent Business v. Sebelius , 132 S. Ct. 2566, 2593 (2012). Thus, Margates interpretation

must prevail.

In sum, because N.J.S.A. 12:3-64 does not forgive the DEPs non-compliance with the

Act, Margate has a reasonable probability of succeeding on its claim that the Administrative

Orders have no legal effect.



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c. Executive Order No. 140 does not and cannot preempt the Actor N.J.S.A. 40:61-22.20 .

The DEP may also assert that EO 140 authorized condemnation through the

Administrative Orders in lieu of the Act. As a matter of fact, that is not true. EO 140 on its face

relies upon the condemnation authority in the Act and in N.J.S.A. 12:3-64 in ordering the DEP,

in conjunction with the NJAG, to coordinate those legal proceedings necessary to acquire the

necessary easements or other interests in real property for the system of Flood Hazard Risk

Reduction Measures. Thus, EO 140 acknowledged and relied upon existing statutory

procedures, which include legal proceedings , and merely ordered the DEP to employ them. The

DEP did not do so. The plain language of EO 140, however, does not sanction that conduct, let

alone order it or constitute authority for it.

Nor could it have. The New Jersey Constitution vests lawmaking power in the

Legislature, N.J. Const. art IV, 1, 1, and while an executive order is entitled to deference, it

cannot amend or repeal specific statutory provisions. Perth Amboy Bd. of Educ. v. Christie , 997

A.2d 262, 268 (N.J. Super. A.D. 2010). This is because of the bedrock principle of our federal

and state constitutional forms of government the separation of powers. Id . at 269.

[E]mergency executive power can be an unconstitutional usurpation of legislative authority

either when the executive acts contrary to the expressed or implied will of the Legislature or

when the Legislature has failed to act. Id . Where an executive order dramatically alter[s] the

existing and comprehensive statutory scheme, it unconstitutionally operates to impliedly repeal

that regime. Communications Workers of America, AFL-CIO v. Christie , 994 A.2d 545, 571-72

(N.J. Super A.D. 2010). In that instance, a court may not accord deference to a governors

unilateral attempt to exercise the Legislatures powers. Id . at 571.



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Had EO 140 ordered the DEP to defy the statutory mandates of the Act and of N.J.S.A.

12:3-64, it would have constituted an unconstitutional usurpation of Legislative authority

because it would have been inconsistent with an existing and comprehensive statutory scheme

governing the use of eminent domain powers, namely the Act.

In addition, Margate is statutorily vested with sole control of and authority over its

coastal property pursuant to N.J.S.A. 40:61-22.20. That provision states: The governing

body of any municipality bordering on the Atlantic Ocean, tidal water bays or rivers which owns

lands bordering on the ocean, tidal bays or rivers for a place of resort for public health and

recreation and for other public purposes shall have the exclusive control, government and carethereof and of any boardwalk, bathing and recreational facilities, safeguards and equipment.

Id . The New Jersey Legislature, through the foregoing provision, imbued Margate with sole

control of its municipally-owned beaches, and while that fact may not preclude a taking under

the Act, it certainly prohibits the Governor from using EO 140 to wholly subvert Legislative

intent.

Notably, Margate has exercised its statutory authority and enacted Margate Ordinance

2001-14, which states: The Board of Commissioners shall not (i) approve any Dunes project;

(ii) appropriate any funds for a Dunes project; (iii) enter into any Cooperative Agreement; nor

(iv) authorize the acquisition of property or any interest in property, whether by purchase,

eminent domain, or otherwise, for a Dunes Project, other than by means of an ordinance duly

adopted by the Board of Commissioners, which ordinance shall, by its terms, not be effective

until it has been submitted to and approved by the voters of the City of Margate at an election

duly scheduled for that purpose. Margate Ordinance 2001-14(II).



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In short, EO 140 rightfully requires compliance with the Act. If construed as likely urged

by the DEP, EO 140 contravenes the Act, N.J.S.A. 40:61-22.20 and Margate Ordinance 2001-

14, and it therefore violates the separation of powers doctrine. Margate is therefore reasonably

likely to prevail on the merits of its claim that the Administrative Orders have no legal effect.

d. The DEPs purported exercise of its condemnation authoritywas substantively and procedurally arbitrary and capricious.

The DEPs exercise of its eminent domain authority was arbitrary and capricious both

procedurally and substantively. Procedurally, the DEP opted to forego the process required

under the Act and to otherwise attempt to acquire Margates property without resort to any

lawful means of doing so. The filing of the Administrative Orders ignored the expressed public

concern over the Project and deprived Margate of the right to object to the taking, all while

Margate was under the impression that negotiations would soon commence. The DEP,

moreover, continued to assert that it would participate in negotiations while preparing and

ultimately filing the Administrative Orders. Despite Margates retention of expert engineers to

examine the Project, and despite the parties repeated discussions concerning their intent to

negotiate, the DEP filed the Administrative Orders and has to date refused to participate in any

discussion of Margates position or the analysis conducted by its engineers. The DEPs outright

refusal to consider Margates position coupled with its course of action designed to guarantee

that Margate would have no notice or opportunity to be heard as to that position, is, procedurally,

arbitrary and capricious.

Substantively, the Administrative Orders must be declared void because the decision to

implement the nearly 20-year old plans for the Project is arbitrary and capricious. On September

22, 2014, Margates engineer, Charles Rooney issued his report. 22 Mr. Rooney, having reviewed

22 See Ex. C.



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the Project plans and specifications, spelled out the specific problems with the Defendants

approach. The Defendants, however, have refused to meet and discuss Margates concerns.

Thus, the DEP, by refusing to participate in or provide any process, has wholly refused to discuss

or consider that: (1) Margate has a contiguous, uninterrupted bulkhead system which may, in its

current or a fortified form, constitute sufficient or superior storm damage protection than the

Project; (2) an identical or superior result may be achieved by widening and/or heightening the

beach berm in lieu of constructing dunes; (3) the Project will cause street-end drainage issues for

which it does not account; (4) Margate will be responsible for untold, unending maintenance

obligations concerning the dunes; and (5) Margates existing bulkhead system provided effective protection during Hurricane Sandy.

Where, as here, an agency exercises its condemnation authority in an arbitrary and

capricious manner, manifestly abuses its power or otherwise acts in bad faith, that action must be

voided. See Township of Readington v. Solberg Aviation Co ., 976 A.2d 1100, 1116-17 (N.J.

Super. A.D. 2009) (collecting authority); Borough of Essex Fells v. Kessler Institute for

Rehabilitation , 673 A.2d 856, 858, 863 (N.J. Super. Ct. 1995) (dismissing condemnation

proceeding filed to acquire property for the purpose of preventing construction of rehabilitation

facility in the borough). Margate is therefore reasonably likely to prevail on the merits of its

claim that the Administrative Orders are invalid.

2. Margate is Reasonably Likely to Prevail on the Merits of its ClaimsAgainst the Corps Because the Corps Cannot Award the Contract andCommence Construction in Reliance On the Invalid AdministrativeOrders.

The Corps awarding of the Contract and commencement of construction upon Margates

beaches constitutes an imminent trespass upon, and immediate alteration of, the Citys property.

As argued above, Margate has had no opportunity to have its objection to the Administrative



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Orders heard. The Corps and the DEP utilized the Administrative Orders to circumvent the

entirety of the required process that would have safeguarded Margates rights. The Corps,

moreover, is expressly relying on the DEPs representation that it acquired the necessary

easements by virtue of the Administrative Orders. As the Administrative Orders are void,

Margate is reasonably likely to succeed on its claim that the Corps action is contrary to law,

contrary to its rights and without observance of procedure required by law. See 5 U.S.C. 706.

Because the Administrative Orders are void, the Corps conduct constitutes an imminent

trespass to land. [T]respass constitutes the unauthorized entry (usually of tangible matter) onto

the property of another. Rowe v. E.I. DuPont De Nemours and Co ., 262 F.R.D. 451, 463(D.N.J. 2009). Thus, there are two elements to this claim: 1) an entry onto anothers property,

and 2) the entry is unauthorized. Id . The Corps intends to immediately award the Contract and

commence construction upon land owned by Margate. Margate has not authorized this entry

upon its property. Margate is therefore reasonably likely to succeed on its claim that the Corps

imminent conduct constitutes a trespass upon, and unauthorized alteration of, its beaches which

must be enjoined

B. The Corps Imminent Conduct Will Irreparably Harm Margate.

The irreparable injury analysis is markedly different where, as here, the public interest is

directly affected. Instant Air Freight , 882 F.2d at 803. As the Supreme Court has observed,

parts of equity may, and frequently do, go much farther both to give and withhold relief in

furtherance of the public interest than they are accustomed to go when only private interests are

involved. Id . (quotations omitted). This is especially the case where the public interest in

question has been formalized in a statute. Id .

Moreover, a statutory provision authorizing preliminary injunctive relief upon a

showing of probable cause to believe that the statute is being violated may be considered a



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substitute for a finding of irreparable harm for purposes of a preliminary injunction issued under

Rule 65. Id . See also Assisted Living Assocs. of Moorestown v. Moorestown Twp. , 996 F.

Supp. 409, at 438-39 (D.N.J. 1998) (collecting authority); Bosworth v. Ehrenreich , 823 F. Supp.

1175, 1182 (D.N.J. 1993) (In certain cases, however, the courts of this circuit will consider a

provision in a statute which authorizes injunctive relief on a showing of probable cause to

believe the statute is being violated as a substitute for a finding of irreparable harm. In such

cases, the granting of an injunction is seen as serving the public interest, as expressed by the

legislature in enacting the statute.) (internal quotations omitted).

This case implicates a public interest expressed both by the Act and the citizens ofMargate. The Commissioners of Margate have filed this action on its citizens behalves based on

two voter referenda indicating that more than half of the Citys citizens oppose the Project.

Margates right to at least be heard prior to condemnation is expressly codified in the Act, which

explicitly authorizes preliminary injunctive relief in two provisions. When the authority to

condemn is denied, all further steps in the action shall be stayed until that issue has been finally

determined. N.J.S.A. 20:3-11. Notably, the foregoing provision does not even require a

showing of probable to stay proceedings. Where, moreover, a condemnor seeks immediate

possession notwithstanding the pendency of proceedings, a condemnee may, upon application

and good cause shown obtain a stay of the taking. N.J.S.A. 20:3-19. Thus, the critical public

interests involved in Margates public beaches coupled with the Acts provisions authorizing

injunctive relief even absent a showing of irreparable harm operate as a substitute for a finding of

irreparable harm. See R.S. v. Somerville Bd. of Educ ., 2011 WL 32521, at *6 (D.N.J. Jan. 5,

2011) (finding that the function of the stay put is essentially a preliminary injunction issued

without the necessity to establish the usual injunctive prerequisites the statute substitutes an



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absolutes rule in favor of the status quo for the courts discretionary consideration of the factors

of irreparable harm and either a likelihood of success on the merits or a fair ground for litigation

and a balance of the hardships.); County of Sussex , 796 A.2d at 961 (N.J. Super. Ct. 2001)

(noting propriety of stay once condemnee challenges authority of condemnor).

Even if the Court is inclined to further scrutinize this issue, the construction of dunes

upon Margates beaches constitutes irreparable harm. It is generally recognized that monetary

relief fails to provide adequate compensation for an interest in real property, which by its very

nature is considered unique In re Bella Vista Associates, LLC , No. 07-2241, 2007 WL 455891,

at *10 (Bankr. D.N.J. Dec. 18, 2007) (Wizmur, J.). Harm affecting interests in real propertytherefore is presumptively irreparable. Id . Here, the construction of dunes on Margates beaches

is undoubtedly irreparable. As noted in the Rooney Report (Exhibit C), [t]he dynamics of

dunes are such that once constructed they will continue to accumulate material increasing in

height and width. Due to this dynamic, when coupled with a major beach fill, the initially

constructed dune can quickly grow in height and width. As the dune increases in height

oceanfront views are compromised and the increased width of the dune will potentially encroach

onto upland facilities in some areas and reduce the usable portion of the beach on the seaward

side of the dune. Presently dues are protected by the [DEP] and once installed cannot be

eliminated. 23 Defendants propose to not only take Margates property, but also to completely

alter its character. The dunes, once constructed, may not simply be removed. Rather, the DEP

must approve a permit to remove them. See N.J.A.C. 7:7E-3.16(b). The Corps immediate

entry onto and complete alteration of Margates beaches therefore constitutes irreparable harm.

23 Ex. C at p. 8.



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commence construction upon Margates beaches. The remaining preliminary injunction factors

therefore strongly favor preliminary injunctive relief.

V. CONCLUSION

The DEP employed no lawful process to take Margates beaches. Relying on the DEPs

representations that it could acquire easements without process, the Corps intends to immediately

award the Contract and start construction, after which the Defendants intend to make Margate

pay to maintain the dunes forcibly constructed on the Citys beaches. Because these actions

deprive Margate and its citizens of their rights under the Act and the law, Margate respectfully

requests that the Court issue a preliminary injunction enjoining the Corps from awarding the

Contract and commencing construction pending a final judgment in this case.

Respectfully submitted:

/s/ Thomas S. Biemer Thomas S. Biemer, EsquireJordan M. Rand, EsquireRobert Andrews, EsquireDILWORTH PAXSON LLP

1500 Market Street, Suite 3500EPhiladelphia, PA 19102Tel: 215-575-7000Fax: 215-575-7200Emails:[email protected];

[email protected];[email protected]

Attorneys for Plaintiff,City of Margate, New Jersery




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MARGATE CITY, NEW JERSEY, :

Plaintiff, ::v. : C.A. No: 14-7303-RMB-AMD

:UNITED STATES ARMY CORPS OF ENGINEERS, :and :

NEW JERSEY DEPARTMENT OF ENVIRONMENTALPROTECTION,

::

Defendants. :

CERTIFICATE OF SERVICE

I, Thomas S. Biemer, hereby certify that on December 1, 2014, I caused a true and

correct copy of the foregoing Memorandum of Law to be served via electronic mail as follows:

Bill Wilcox, EsquireUnited States Army Corps of Engineers

Office of CounselThe Wanamaker Building

100 Penn Square East

Philadelphia, PA [email protected]

David C. ApyAssistant Attorney General

Division of Law, Director's ComplexR.J. Hughes Justice Complex

25 Market Street, P.O. Box 112Trenton, N.J. 08625Tel: 609-292-8567

[email protected]/s/ Thomas S. Biemer Thomas S. Biemer, Esquire




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Case 1:14-cv-07303-RMB-JS Document 10-7 Filed 12/01/14 Page 58 of 71

Documents

Brief in Support of Application for a Preliminary Injunction (2).pdf