Avalon's eroded beach in the work area.

AVALON — Some residents here may not want portable bathrooms near their beachfront property, but they sure don’t mind sand replenishment funded by state taxpayers.

Borough officials authorized the removal of a portable bathroom at 11th Street after the Appellate Court released its 3-0 decision in favor of Avalon’s challenge to the Department of Environmental Protection’s (DEP) State Aid Agreement, on which the DEP based its state funding for municipal beach replenishment.

Last June, the DEP agreed to reimburse the borough about $1.8 million in beach replenishment funding, 75 percent of the total project cost of about $2.3 million, to place 225,000 cubic yards of sand at the eroded north end between 9th and 18th streets. Officials said the interim agreement did not affect the intra-governmental lawsuit.

In order to receive funding, the DEP required that the borough provide one public bathroom in the replenishment area. Sand was brought in before Independence Day, 2008.

On Jan. 8 Avalon received a $1,776,561 reimbursement check from the state treasury, the borough initially paid 100 percent of the cost.

Business Administrator Andrew Bednarek confirmed the bathroom had been removed after Appellate Division Judge Stephen Skillman, a former DEP attorney general, released the decision in favor of Avalon on Nov. 19.

During an emergency meeting June 18, 2008, council members noted the agreement was expedited when the DEP sent confirmation to reimburse beach replenishment funds via email.

Officials have no record of that million-dollar email now despite an Open Public Records Act (OPRA) request by the Herald.

Officials contend the bathroom agreement is invalid because of the Appellate Court’s decision in favor of Avalon, which voided the entire State Aid Agreement.

Councilman Joseph Tipping told the Herald the decision to remove the bathroom did not require council’s approval.

“Our position is that what the DEP wanted was improper,” Tipping said.

However, State Attorney General Anne Milgram’s Office released its intention to appeal the Appellate Court decision in the state Supreme Court shortly afterward. Because the Appellate decision was unanimous, the Supreme Court must agree to hear arguments through a petition for certification.

Lee Moore, spokesperson for the Attorney General’s Office, said more information regarding arguments would be available after a requested extension time expires this week.