NJDEP is sued for failure to abide by its own Hudson River walkway requirement on land that it owns

FBW | March 13, 2024

For a nine-mile stretch from Port Liberte in Jersey City to the George Washington Bridge, you can now walk the length of the Hudson River shoreline, except for a few gap sites that are inaccessible to the public. Since 1984, the New Jersey Department of Environmental Protection (NJDEP) has provided for this public walkway in its Coastal Zone Management Regulations.  In close cooperation with the NJDEP, the nonprofit Hudson River Waterfront Conservancy oversees the implementation of this 30-foot-wide pedestrian pathway called the Hudson River Waterfront Walkway.

Remarkably, the NJDEP itself owns one of the gap sites in the waterfront walkway at 725 River Road in Edgewater. The NJDEP leases this property to several companies that operate a strip mall called the Marketplace. A row of shops and restaurants abuts the water’s edge at the Marketplace, with a raised deck allowing diners to enjoy riverfront vistas but making it inaccessible to the public.  

In recent years, the Conservancy has been laser-focused on completing the missing sections of the Hudson River Waterfront Walkway. Frustrated by the lack of progress at the Marketplace, the Conservancy took the extraordinary step of suing the NJDEP for its failure to complete the public walkway there. 

On February 5th, represented by legal counsel Scott Piekarsky, Esq. of Offit/Kurman, the group filed suit in the United States District Court in Newark naming the NJDEP and three LLCs as defendants. The action seeks to enforce New Jersey’s Public Trust Doctrine and the Americans with Disabilities Act.

“Despite our continuing requests to the Department for over a year to address the violations and enforce the lease provisions which require their tenants to comply with the Public Trust Doctrine,” stated Donald Stitzenberg, the President of the Conservancy,  “[the] DEP has failed to take any corrective action.”

Owners of property along the Hudson River must obtain a waterfront permit from the NJDEP to develop their sites. As a condition of the permit,  the owner is required to construct its portion of the waterfront walkway and grant a conservation easement to the NJDEP.

Today, in the United States, the Public Trust Doctrine is part of our common law. This doctrine applies to lands that were once flowed by the tides. Thus, the Hudson River shoreline, identified by New Jersey’s Coastal Zone Management Regulations as the “filled water’s edge,” is governed by the Public Trust Doctrine. The State of New Jersey used this doctrine as the basis for the establishment of the Hudson River Waterfront Walkway regulations.