NORTH WILDWOOD – As the first nor’easter of 2023 pumped waves onto North Wildwood’s coast March 13, a stronger, although figurative, storm raged on dry land over the island’s resilience.
A request for emergency authorization (EA), submitted by the City of North Wildwood, seeking permission from the state Department of Environmental Protection (DEP) to do storm-related work on its beachfront, was denied by the state agency Feb 24.
Now, the city is asking a Superior Court judge to decide on the matter, differing from the standard appeal process.
In a hearing March 7, Anthony S. Bocchi, an attorney for North Wildwood, asked Superior Court Judge Michael J. Blee to review the city’s request and grant them the relief they are seeking, including permission to extend a bulkhead from 12th to 16th avenues and regrade the dune where wave action caused large cliffs in part of that area.
North Wildwood Mayor Patrick Rosenello told the Herald a “picture speaks a thousand words” and sent a reporter a photograph of the 15th Avenue beach path ending in a cliff, which he said was taken the morning of March 13, while the nor’easter lurked offshore.
“If someone gets hurt or, God forbid, killed because of this hazard, the governor and DEP commissioner should be criminally charged,” Rosenello added.
Blee is already presiding over a suit, brought against the city by the DEP, and a countersuit, brought by North Wildwood against the environmental regulator, regarding unauthorized storm resilience efforts the city has undergone in the recent past.
The lawyers for the DEP argue the appeal process for emergency action is clear: The city can file an adjudicatory hearing request under the department’s rules of coastal zone management, or it can seek Appellate Division review of the issue.
Neither of those result in the matter being heard in the larger context of North Wildwood’s coastal problem. The facts of that situation are already in front of Blee, to whom well over a thousand pages of relevant filings have been submitted, including expert certifications on the state of the city’s beaches from both sides.
The city’s lawyers said not only is the context important, but those other avenues of relief aren’t good enough because there is an immediate danger posed by the present conditions. Appealing to the DEP would be “an exercise in futility,” North Wildwood’s attorney wrote in a letter to Blee.
“I'm at wit's end, as a lawyer, in terms of what more I can do to try to protect the City of North Wildwood from a public safety emergency that exists today,” Bocchi told the court during a March 7 hearing. “There are 10-foot dune scarps … Any kid can just go up onto this dune, and there is nothing there to stop that child from falling 10 feet.”
Deputy Attorney General Dianna Shinn, arguing on behalf of the state, said there is a technical review underway on an application for a Coastal Area Facility Review Act (CAFRA) permit to build the bulkhead. In the meantime, there are alternatives that the state prefers for emergency relief.
“If they still believe a bulkhead is necessary, they can try again in another EA application based off of current conditions. However, the department would also recommend taking a hard look at some of the alternatives that the department has represented to North Wildwood,” Shinn argued in court. “The department is committed to expediting review of that underlying CAFRA permit for a bulkhead in the same exact location.”
In a letter dated Feb. 24, from Jennifer Moriarty, director of the DEP’s Division of Land Resource Protection, addressed to Nicholas Long, the city’s administrator, the DEP denied North Wildwood’s EA request.
In the letter, Moriarty writes, “There is no threat to life, severe loss of property, or environmental degradation” to the area extending north from 15th Avenue to the area where the current bulkhead ends, between 12th and 13th avenues, which is a necessary standard to meet to obtain an EA.
Moriarty adds that the area where the bulkhead ends and the natural dune begins, between 12th and 13th avenues, “is experiencing a higher level of erosion, exacerbated by end effect wave reflection from the currently existing, unauthorized bulkhead.”
That unauthorized bulkhead and other unauthorized work the city undertook caused the DEP to issue $12.8 million in fines to North Wildwood earlier this year.
Moriarty also acknowledges the area in front of the Beach Patrol building, which was constructed in a “waterward location,” has suffered “severe erosion,” and the “remaining dune may not provide protection in future storm events, making the building and nearby infrastructure vulnerable to damage.”
However, Moriarty states that even if the DEP determines an emergency exists, it must also determine the situation “can only be ameliorated by the proposed regulated activity before it can issue an EA.”
In accordance with that standard, the DEP said Feb. 14 that it requested North Wildwood to consider other, nonstructural alternatives to solve the problem, like adding sand to bolster the existing dune.
Some back and forth communication ensued, and North Wildwood said, to achieve a nonstructural remedy, sand would have to be brought in from the mainland since the beach is too narrow for trucks to make it up from Wildwood or Wildwood Crest and around the piers.
The city also responded by arguing, based on erosion rates experienced in the past six months, the placement of “supplemental sand will not sustain the dune as an effective shore protection measure.”
In her denial, Moriarty said the city failed to show in that back and forth that dune enhancement is not feasible.
Who Gets to Decide?
In a hearing Feb. 1, Blee ordered North Wildwood to submit the EA request to the DEP within 10 days, which the city did. The city’s lawyers say that is enough to keep the matter in Blee’s courtroom after the DEP’s denial, rather than pursuing the traditional channels of relief.
“We need the court's help because if Your Honor retained jurisdiction in directing a party to seek an EA, I would assume that it logically follows from that, that the court also has the authority to review the matter in which it directed a party to act,” Bocchi said. “(DEP) invoked your jurisdiction. They filed this lawsuit. They sought Your Honor's review of this matter. In response, we said to the court, this is a unique case, you need to consider everything.”
However, the DEP attorneys disagreed.
“We filed this action to seek this court's jurisdiction to enforce a final agency action in a summary manner. That does not allow this court to relitigate the merits of the underlying final agency action,” Shinn, the deputy attorney general, argued to the court.
Blee said he would grant Bocchi’s request for a hearing, but only on if the judge can retain jurisdiction over the EA. Blee did not discuss the merits of the city’s emergency request, focusing instead on the procedural aspects of their appeal.
“This one is an interesting issue. I can’t make that determination without having briefs in front of me and without having oral argument,” Blee said.
He set oral arguments for March 27, with briefs from both sides due before then.
What About the Cliffs?
In the meantime, major sand cliffs and the danger they pose remain.
“In the recent EA, it wasn't just about the bulkhead. We also sought authorization to regrade these dunes because of those 10-foot-high dune scarps that exist, and the DEP even denied that,” Bocchi, North Wildwood’s lawyer, said in court.
Bocchi asked Blee to at least allow them to regrade the dunes to remove the cliffs while the court process plays out.
The judge said, at this point, he can’t grant that request, but encouraged continuing dialogue between both sides.
Blee said dialogue and perhaps some form of a settlement are a good idea considering when determining the issue of jurisdiction, there is a lot on the line because it could create issues for appeal.
“There's risks on both sides,” Blee said in court. “It's complicated, in terms of whether this court does have jurisdiction, or not. So, I just want both sides to know the risks involved, and, generally, when there's a risk, that's a good time to try to work out an amicable resolution.”
On the horizon, there may be a better solution. After being pressured by the DEP, Wildwood and Lower Township recently signed a state aid agreement, which brings a long-anticipated federal- and state-funded project to construct a dune the length of the island one step closer to construction.
Obtaining the necessary easements from private parties who own portions of the beach is the next obstacle for the state to tackle before getting that job started.
In the meantime, the city appears convinced a bulkhead is the only viable strategy to mitigate future storm damage. Supplies to build it are currently being piled up near the Beach Patrol building.
Contact the author, Shay Roddy, at firstname.lastname@example.org or 609-886-8600, ext. 142.