Ship Bottom Homeowner Takes on Town Hall to Replace Dock Damaged in Nor’easter

Sep 05, 2018

Terence Hayes is a man on a mission. The Robert Drive property owner is trying to get to the bottom of why he was told he couldn’t replace his existing dock, damaged earlier this year in a March nor’easter, when he has all of the appropriate paperwork in hand.

“According to the permit,” Hayes told the Ship Bottom Borough Council at its monthly meeting Aug. 28, “it can be replaced.”

Hayed visibly struggled to keep his emotions under control as he addressed the council, telling them the paperwork he has dates back to 1995 and has the town seal on it. Although it wasn’t clear when the actual process of replacing the dock began, he said he was told he could be arrested if the work continued. He’s been working with officials since then to get to the bottom of the situation. He’s even switched attorneys in his efforts, Hayes told the council.

“It’s a legal matter,” Mayor William Huelsenbeck said during the meeting. “We’re not going to comment.”

The mayor also said Councilman David Hartman has land within 200 feet of the property in question and will recuse himself from any further discussions on the riparian rights issue.

In New Jersey, tidelands, also known as riparian lands, are lands that are currently and/or formerly flowed by the mean of high tide in a natural waterway, according to the state Department of Environmental Protection’s Division of Land Regulation.

“Barnegat Bay, a natural tidal body of water, is an example of tidelands,” the division’s resources read. “A new creek, a tiny tidal stream that flowed through the city of Newark a century ago but has since been filled and built over, is also an example.”

The division’s website goes on to say the state harbors a significant network of tidelands, both big and small.

“The State of New Jersey claims ownership of these tidelands and holds them in trust for the people of the state,” according to the division’s website. “Since tidelands are public lands, you must obtain written permission from the state and pay a fee in order to use these lands.”

Common uses include docks, mooring piles, bulkheads and other fill materials. Where docks are concerned, a formerly issued permit can be used to replace one damaged during a storm if the footprint doesn’t change. However, if the footprint changes in any way, shape, or form, the property owner must submit a new application to the DEP and the Army Corps of Engineers.

Riparian rights are the rights owners adjacent to tidelands have to be the first person to request the use of those areas for purposes such as docking or mooring a boat, according to the DEP’s Public Access web page.

“Because of the special nature of tidelands, owners must first get permission from the state to have land conveyed to them in the form of a tidelands license, lease or grant for this use,” the DEP site reads. “When the state does convey the private rights to private ownership, the Public Trust Doctrine puts in place strict limitations on that conveyance.”

In addition, the governor’s signature is required to authorize the agreement. Lastly, the private owner must not impair the public interest in the remaining lands and waters.

“A tidelands grant is a deed from the state of New Jersey selling its tidelands. Tidelands grants are generally only issued for lands already filled in and no longer flowed by the tide,” according to the DEP. “A tidelands license is a short-term revocable rental document to use tidelands, generally for structures such as docks, mooring piles and other temporary structures, in addition to dredging projects. Licenses have a specific term, usually three or five years.”

However, a tideland lease is a long-term rental agreement, usually issued to marina owners or homeowners over water. The lease term is for 20 years.

There are a number of factors that can determine whether a license, lease or grant is awarded, including the history of the property, the type of waterway the land is located by, the expected use as well as environmental conditions. The entire process is guided by the riparian statutes, with the most applicable discoveries in Chapter 3, Section 12. The document was amended in April 2016.

Under 12:3-19, the Tidelands Resource Council, the public body that is in charge of protecting the state’s riparian lands, along with the DEP commissioner, and after consulting with the Army Corps, can from time to time, determine the exterior lines in tidal waters as they pertain to islands, reefs and shoals. In doing so, they set the boundary where no pier, wharf, bulkhead, erection or permanent obstruction of any kind shall be made or maintained.

Also falling under that section are rules for setting up interior lines for solid filling in of waterways and determining the area where no permanent obstruction can be made or maintained other than wharves, piers and other structures for commercial use.

“No exterior line around or in front of any such island, reef or shoal shall be fixed and established in front of any riparian grant which was made prior to Feb. 10, 1991,” according to the Public Access resources.

Whether any of this pertains, even in the smallest of ways, to the issue before Ship Bottom officials is unclear. But Huelsenbeck promised Hayes he would work toward scheduling a meeting with the borough attorney and all appropriate authorities, including Hayes, to discuss the matter in full.

Although not directly related, it should be noted the area in question is in somewhat close proximity to where the county is slated to replace a deteriorating berm with a bulkhead, which residents and officials are hoping will alleviate flood water at the end of Central Avenue and West 28th Street. While no formal start date has been given, officials said last month it would begin sometime after Labor Day.

The work marks the second step the county has taken to reduce back-bay flooding in one of the most flood-prone areas on the Island. In May, county road crews raised the crown of Long Beach Boulevard between 24th Street in Ship Bottom and 33rd Street in neighboring Long Beach Township. Depending on the area of the roadway, the crown was raised either 6 or 8 inches in an effort to clear the center turn lane, allowing one lane of water-free, or almost water-free, driving during a tidal or storm flood.

— Gina G. Scala

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