NORTH WILDWOOD - City officials, Seaport Pier owners and New Jersey Department of Environmental Protection (DEP) representatives are working toward resolving alleged environmental violations committed by the city and the pier’s developers.
Last June, the DEP issued notices of violation (NOV) listing several ways in which, they say, the city and the developer violated laws with the construction of bulkheads, destruction of dunes and wetlands, construction of parts of the Lou Booth Amphitheater, and various other structures and pathways constructed along the coast.
Neil Yoskin, a prominent environmental attorney, retained by the city in June, said he does not expect substantive changes to infrastructure as a result of a potential settlement between the city and the state agency, nor does he expect the city to incur fines.
North Wildwood Mayor Patrick Rosenello, upon retaining Yoskin, called him the “preeminent environmental attorney in the state.”
“I don’t think there is going to be a penalty assessment,” Yoskin said. “I think probably, we will resolve this by way of an administrative consent order of some kind.”
NOVs are not binding, the lawyer said. The DEP would have to issue a penalty order, or Administrative Order/ Notice of Civil Administrative Penalty Assessment (AO/NOCAPA), if they aren’t satisfied in negotiations with North Wildwood, according to the counselor.
“I don’t see that happening,” he reiterated. “DEP doesn’t like to fine municipalities. Knowing that North Wildwood is kind of on its own out there when it comes to funding its shore protection, I really don’t think DEP wants to assess significant penalties.”
“We’ve paid 10 million dollars in monetary penalties over the last five years,” Rosenello said, in a December interview, referring to the construction costs associated with the projects. “Having to shell out penalties for constructing shore protection projects as we waited for a DEP project would be a very tough pill for me to swallow.”
Only after a penalty assessment could the city go to court and litigate the matter, Yoskin said. However, according to Rosenello, a quirk in New Jersey law allows the DEP commissioner to veto whatever ruling that administrative law judge makes. In that case, the city would have the right to an appeal in Superior Court.
“I don’t see how it’s productive for anybody to take it to that level, and from what I’m viewing now, it seems like both sides are being reasonable and trying to obtain a reasonable compromise,” Rosenello said. “I hope we continue on that path.”
While Rosenello conceded that he authorized work without obtaining the necessary permits, he said it is something that was completely necessary, and that he would do it again.
“In hindsight, it’s good that the city put [the bulkhead] there because with the storms they had last fall, there would have been water in buildings on JFK Drive,” Yoskin agreed.
Rosenello initially blamed the DEP for inaction, prompting the need for emergency repairs, as said in a June press release, and stated he would investigate whether there was political motivation based on criticism he made publicly of Gov. Phil Murphy’s handling of the state's economy during the pandemic.
In a Jan. 5 address to City Council, the mayor said that communication has come a long way since then with the agency.
“Sometimes, you have to go through a rough patch to get out onto the other side and get things moving again. I feel that’s where we are at this point,” Rosenello said. “I feel a much better sense of urgency now from the Army Corps and the NJDEP.”
“That’s 100% accurate. One of the unintended benefits of the NOV’s is that there is far more dialogue now than there was before,” said Yoskin.
Rosenello has expressed frustration with the delay in a dune project that would provide federally funded shore replenishment to the Wildwoods. He said the project, presented in 2014, had a projected start date of 2017. In 2021, it has yet to break ground, costing the city millions annually in back passing efforts to harvest and truck sand from Wildwood, build the bulkheads and take other measures to protect the north shore.
The violations allege the city broke environmental laws in several areas of town along the oceanfront, some related to emergency shore protection projects, and some not.
At the site of the Lou Booth Amphitheatre, the DEP alleges clamshell paths through the dune leading to the amphitheater, a shed on the property, and a flagpole do not comply with state statutes. The DEP also takes issue with two oceanfront gazebos – at First Street and Surf and at Second and JFK.
The DEP also takes issue with two oceanfront gazebos – at First Street and Surf and at Second and JFK — sheds near the beach patrol headquarters, and a composite bike path and clamshell walkway from 15th to 21st avenues. There are also concrete sidewalks in various parts of town alleged to be illegal.
Related to shore protection efforts, the city was cited for installing a vinyl bulkhead in front of an existing wooden one, between Third and Fifth avenues, and creating a new steel bulkhead, with sharp angles, between Fifth and Seventh avenues.
Another point of contention is the alleged destruction of dune and freshwater wetland systems.
The city’s lawyer contends these “by-and-large eroded away,” and without a proper hydraulic dredge project to replenish the beaches, the dunes will not survive the rising tide.
“At the backside of the dunes, there were some freshwater wetlands. The water table is very shallow there. They said we want you to restore these wetlands. The city has continued to say we will be happy to restore everything if we can get a beach,” Yoskin said.
The DEP has had issues with the angling of the steel bulkhead, a point the mayor doesn’t disagree with, saying they put playground equipment there because of the space created, adding the bulkhead wasn’t angled or constructed with the playground in mind.
Yoskin said he thinks the playground will be able to stay. At Lou Booth Amphitheatre, he similarly doesn’t expect much change.
“The city and the DEP have been going back and forth about that,” Yoskin said. “Some of it may have to be adjusted. I don’t think there will be any wholesale removal up there. No.”
“If we have to make reasonable modifications or improvements to shore protection things that we’ve installed, we’re completely open to doing that, as part of a comprehensive settlement,” said Rosenello.
Larry Hajna, a spokesman for the DEP, declined requests for an interview with a representative from the agency, issuing a statement instead, saying, “The NJDEP is working with North Wildwood on the resolution of the violations and issuance of permits needed for a compliant coastal area.”
In a separate NOV, addressed to the mayor, as well as Joseph Byrne and Daniel Govberg, who own BG Capital, the developer of Seaport Pier, it is alleged parts of the bar and restaurant and an attached, members-only pool club violate various statutes.
The pool club falls outside the sewer service area, and the main part of the pier, with the bar and stage, was constructed without proper permitting, the NOV alleges.
Govberg and Byrne declined requests for an interview through their lawyer, Lyndsy Newcomb. Newcomb issued a statement, saying, “Our client has had several productive meetings with the NJDEP in this matter, and has been working diligently with the department in reaching a resolution. As this is a pending legal issue, we cannot offer further comment, but our client looks forward to reaching an amicable resolution."
Asked if there was a timetable for a resolution, Yoskin replied “no,” and Rosenello said he couldn’t even begin to guess when this will be resolved.
“DEP is saying we think you violated a law, and then they ask for a ton of stuff. They ask for a whole bunch of information, which was thousands of pages of information, so we’ve given all of that to them, and now, they’re kind of digesting that,” Yoskin said.
“We plod ahead. The more pressing question for the city is, when are they going to get some help to restore their beaches?” he said, adding that the DEP asked for extensive information on the contractors doing the work on the beachfront.
“I think the state, maybe they thought something nefarious was going on. It wasn’t,” he added.
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