April 1999

Developers Seek To Void Walkway Regulations

If developers prevail with their lawsuit, fences such as this one at the Shelter Bay Club in Edgewater will quickly be erected to exclude the public from the Hudson River Waterfront Walkway.

The Coalition for a Better Waterfront has joined with the Hudson River Waterfront Conservancy, the Friends of the Weehawken Waterfront, the Baykeeper and other civic organizations in defending against a suit brought by the National Association of Home Builders to invalidate the state regulations mandating the public walkway along the Hudson River. This lawsuit, filed on May 29, 1998 against the State of New Jersey Department of Environmental Protection, claims that the walkway requirements constitute a "taking."

The Hudson River Waterfront Walkway, created by the state's Coastal Zone Management regulations fifteen years ago, is designed to establish a continuous 18-mile public waterfront from the George Washington Bridge to the Bayonne Bridge. If this lawsuit succeeds, the walkway will be shut down to the public and construction of any remaining sections will cease. The public's right to enjoy and use the Hudson River's edge will have been dealt a lethal blow.

Last month, CBW and the other civic groups were granted defendant-intervenor status by the federal district court in Trenton, New Jersey. In briefs filed on February 26, 1999 defendants contended that a "takings" argument does not apply in this case since the land adjacent to the Hudson River is subject to the Public Trust Doctrine. The Public Trust Doctrine provides that public trust land and waters are held by the state in trust for the benefit of all the people. A central strength of this legal doctrine is that it allows the state to manage its trust resources as a property owner, rather than having to exercise either its regulatory police powers or its powers of eminent domain. In other words, a claim that the state has unlawfully "taken" private property when it manages its trust properties is unfounded.

Anthony DePalma, a reporter for the New York Times wrote concerning the walkway, "I look forward to the day when I and my sons can walk down by the water's edge and be enveloped by the open space, feeling that we belong there, without having to jump over a fence . . . and get to the water, which is always changing yet always the same, and find there a place to dream." But if developers along the Hudson River get their way, this opportunity for the public to use and enjoy the Hudson River Waterfront will be forever lost.