January 2000

Developers Accept Court Defeat In Walkway Lawsuit

Hudson River waterfront Walkway at Hoboken's south waterfront

The National Association of Home Builders and the New Jersey Builders Association have withdrawn their appeal of a federal court ruling which dismissed their claim that the State of New Jersey's Hudson River Waterfront Walkway requirements constituted "a taking." On August 12, 1999, Federal District Judge Garrett E. Brown, Jr. determined that the walkway was to be built primarily within the "filled water's edge" which was once flowed by the Hudson River. The court thus accepted the land along the water's edge as "public trust lands." Since public trust lands are owned by the state, held in trust for the public, the Home Builders argument that the regulations comprised an unconstitutional "taking" of property was unfounded.

CBW joined with the Hudson River Waterfront Conservancy, the Friends of the Weehawken Waterfront, the Baykeeper and other civic organizations as defendant-intervenors in this suit. This lawsuit was originally filed on May 29, 1998 against the State of New Jersey Department of Environmental Protection. 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 walkway from the George Washington Bridge to the Bayonne Bridge.

Attorney Ann Alexander of the Rutgers Environmental Law Clinic represented the defendant-intervenors in this case. Ms. Alexander successfully argued before the federal court that 90% of the walkway was to be built on public trust land. 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. Ms. Alexander stated, "There has been a disturbing trend of late toward privatization of the waterfront, but this decision sends a clear signal to developers that there are limits to that trend."