Brief in Support of Application For A Preliminary Injunction PDF

Case 1:14-cv-07303-RMB-JS Document 10-1 Filed 12/01/14 Page 1 of 2 PageID: 253
UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY
_________________________________________
MARGATE CITY, NEW JERSEY,
Plaintiff,
:
:
:
:
:
:
:
:
:
:
:
v.
Civil Action No. 14-cv-7303
UNITED STATES ARMY CORPS OF

ENGINEERS and NEW JERSEY
DEPARTMENT OF ENVIRONMENTAL
PROTECTION,
Defendants.
__________________________________________
ORDER
AND NOW, on this __ day of December 2014, this matter having been brought before
the Court by the City of Margate (Margate), through its attorneys Dilworth Paxson LLP,
pursuant to Rule 65 of the Federal Rules of Civil Procedure and Local Rule of Civil Procedure
65.1 for a Temporary Restraining Order and Order to Show Cause Why a Preliminary Injunction
Should Not Issue [Docket No. 3] to enjoin the United States Army Corps of Engineers (the
Corps) from awarding a contract to construct, and from commencing construction of, sand
dunes on Margates property; the Court having considered the papers of the parties; and for good
cause shown;
IT IS HEREBY ORDERED that Margates Application for a Preliminary Injunction is
GRANTED, the Court having found:
117834320_1
1.
Margate will suffer immediate and irreparable harm if the preliminary injunction
is denied because the Corps is likely to award a contract and commence
construction immediately, thereby damaging Margates beachfront property;
2.
Granting this preliminary relief will preserve the status quo and will not result in
greater harm to the Corps;
3.
The public interest will be served by the requested relief;
4.
Plaintiff is likely to succeed on the merits of the underlying claims against the
Corps; and
IT IS HEREBY FURTHER ORDERED that THE CORPS IS ENJOINED from

awarding any contract for the purpose of causing in the City of Margate any construction related
to the Absecon Island Coastal Storm Risk Reduction Project (the Project), or any related
project which includes, but is not limited to, the construction of sand dunes on beaches in the
City of Margate or from commencing any such construction until the Court modifies this Order.
IT IS HEREBY FURTHER ORDERED that Plaintiffs $10,000.00 bond, which has
been posted as required by the Courts November 24, 2014 Order [Docket No. 5] shall serve as
continued security while the Preliminary Injunction ordered herein remains in effect.
IT IS SO ORDERED.
___________________________________
United States District Judge Renee M. Bumb
117834320_1
Case 1:14-cv-07303-RMB-JS Document 10 Filed 12/01/14 Page 1 of 31 PageID: 222

:
Plaintiff, :
:
v.
: C.A. No: 14-7303-RMB-AMD
:
UNITED STATES ARMY CORPS OF ENGINEERS,
:
and
:
NEW JERSEY DEPARTMENT OF ENVIRONMENTAL
:
PROTECTION,
:
Defendants. :
BRIEF IN SUPPORT OF APPLICATION FOR A PRELIMINARY INJUNCTION
Thomas S. Biemer, Esquire

Jordan M. Rand, Esquire
Robert E. Andrews, Esquire
DILWORTH PAXSON LLP
1500 Market Street, Suite 3500E
Philadelphia, PA 19102
Tel: 215-575-7000
Fax: 215-575-7200
Emails:
tbiemer@dilworthlaw.com;
jrand@dilworthlaw.com;
randrews@dilworthlaw.com
Attorneys for Plaintiff,
City of Margate, New Jersey
Dated: December 1, 2014
TABLE OF CONTENTS
TABLE OF AUTHORITIES....................................................................................................... ii
I.
INTRODUCTION..................................................................................................................1
II.
FACTS .................................................................................................................................2
III.
STANDARD ......................................................................................................................10
IV.
ARGUMENT ....................................................................................................................11
A.
Margate is Reasonably Likely to Prevail on the Merits................................................11
1.
Margate Has a Reasonable Probability of Succeeding on its Claim That the

Administrative Orders Are Invalid. ..............................................................................11
2.
Margate is Reasonably Likely to Prevail on the Merits of its Claims Against the
Corps Because the Corps Cannot Award the Contract and Commence Construction
in Reliance On the Invalid Administrative Orders. .....................................................21
B.
The Corps Imminent Conduct Will Irreparably Harm Margate...............................22
C.
The Defendants will Not be Harmed by the Requested Injunctive Relief, and the
Requested Relief Serves the Public Interest...................................................................25
V. CONCLUSION.....................................................................................................................26
TABLE OF AUTHORITIES
FEDERAL COURT CASES
American Express Travel Related Servs. Co., Inc. v. Sidamon-Eristoff,
755 F. Supp. 2d 556 (D.N.J. 2011) ...........................................................................................25
Assisted Living Assocs. of Moorestown v. Moorestown Twp.,
996 F. Supp. 409 (D.N.J. 1998) ................................................................................................23
Association for Fairness in Business, Inc. v. New Jersey,
82 F. Supp. 2d 353 (D.N.J. 2000) .............................................................................................25
Bosworth v. Ehrenreich,
823 F. Supp. 1175 (D.N.J. 1993) ..............................................................................................23
City of Passaic v. Shennett,
915 A.2d 1092 (N.J. Super. A.D. 2007) .............................................................................13, 15
Clark v. Rameker,
134 S. Ct. 2242 (2014)..............................................................................................................16
Communications Workers of America, AFL-CIO v. Christie,
994 A.2d 545 (N.J. Super A.D. 2010) ......................................................................................18
In re Bella Vista Associates, LLC,
No. 07-2241, 2007 WL 455891 (Bankr. D.N.J. Dec. 18, 2007)...............................................24
Instant Air Freight Co. v. C.F. Air Freight, Inc.,
882 F.2d 797 (3d Cir. 1989) .........................................................................................10, 22, 23
Liberty Lincoln-Mercury, Inc. v. Ford Motor Co.,
171 F.3d 818 (3d Cir. 1999) .....................................................................................................12
Milgram v. Ginaldi
(N.J. Super. A.D. July 15, 2008)........................................................................................passim
National Federation of Independent Business v. Sebelius,
132 S. Ct. 2566 (2012)..............................................................................................................17
Perth Amboy Bd. of Educ. v. Christie,
997 A.2d 262 (N.J. Super. A.D. 2010) .....................................................................................18
RLR Investments, LLC v. Town of Kearny,
386 Fed.Appx. 84 (3d Cir. 2010)........................................................................................11, 25
Rowe v. E.I. DuPont De Nemours and Co.,
262 F.R.D. 451 (D.N.J. 2009)...................................................................................................22
Shenango, Inc. v. Apfel,
307 F.3d 174 (3d Cir. 2002) .....................................................................................................12
State v. Archer,
257 A.2d 1 (N.J. Super. A.D. 1969) .........................................................................................17
Township of Readington v. Solberg Aviation Co.,
976 A.2d 1100 (N.J. Super. A.D. 2009) ...................................................................................21
ii
STATE COURT CASES

Borough of Essex Fells v. Kessler Institute for Rehabilitation,
673 A.2d 856, 863 (N.J. Super. Ct. 1995) ................................................................................21
Borough of Merchantville v. Malik & Son, LLC,
95 A.3d 709 (N.J. 2014) .................................................................................................1, 11, 25
Bridgewater Township v. Yarnell,
314 A.2d 367 (N.J. 1974) .........................................................................................................10
County of Sussex v. Merrill Lynch Pierce Fenner & Smith,
796 A.2d 958 (N.J. Super. Ct. 2001), affd, 796 A.2d 913 (N.J. Super. A.D. 2002)....10, 11, 24
Hopkins v. DiCristi,
2014 WL 4681044 (D.N.J. Sept. 22, 2014) ..............................................................................10
R.S. v. Somerville Bd. of Educ.,
2011 WL 32521 (D.N.J. Jan. 5, 2011)......................................................................................23
State by State Highway Commissioner v. Seaway, Inc.,
217 A.2d 313 (N.J. 1966) .........................................................................................................16
OTHER AUTHORITIES
5 U.S.C. 706................................................................................................................................22
N.J. Const.art IV, 1 ,...18
N.J.S.A. 7....................................................................................................................................25
N.J.S.A. 12...........................................................................................................................passim
N.J.S.A. 20...........................................................................................................................passim
N.J.S.A. 4019, 20
iii
The City of Margate (Margate), through its attorneys Dilworth Paxson LLP, files this
Brief in Support of its Application for a Preliminary Injunction enjoining the United States Army
Corps of Engineers (the Corps) from awarding a contract and, pursuant to that contract,
commencing construction upon Margates beaches.
I.
INTRODUCTION
This case concerns the Corps reliance upon an unlawful exercise of eminent domain
authority by the New Jersey Department of Environmental Protection (DEP). The New Jersey
Supreme Court has explicitly recognized that no person may be deprived of property without
due process of law. Borough of Merchantville v. Malik & Son, LLC, 95 A.3d 709, 717 (N.J.
2014). To protect these rights, the New Jersey Legislature enacted the Eminent Domain Act of
1971 (the Act), which mandates specific requirements designed to protect the rights of the
property owner. Here, the DEP completely ignored that process and purported to simply seize
Margates property by Administrative Order. In doing so, the DEP provided Margate with no
notice or opportunity to be heard prior to proclaiming that it had already taken the property. The
DEP also purported to take easements, rather than fee simple interests as required by statute, so
as to require Margate to pay future operations and maintenance costs associated with the project.
The DEP should be aware that its conduct is illegal as the Appellate Division of the New Jersey
Superior Court has specifically admonished the DEP in the past that the Act is the exclusive
procedure for effectuating such a taking. Milgram v. Ginaldi, 2008 WL 2726727, at*4 (N.J.
Super. A.D. July 15, 2008).1
Nevertheless, in reliance upon the DEPs representation that it acquired the easements,
the Corps intends to imminently award a contract and commence construction of a nearly 2-mile
1
A copy of all electronic cases are attached hereto as Exhibit A.

1
long stretch of 12.75-foot high, 25-foot wide sand dunes on Margates beaches despite the Citys
repeated, unequivocal protestations. Margate respectfully requests that the Court preliminarily
enjoin the Corps from awarding a contract and commencing construction on the Citys beaches
in violation of its rights.
II.
FACTS
In October, 2012, Hurricane Sandy made landfall along the shores of New Jersey.
Although the consequences of Sandy have led to nearly universal agreement that New Jersey
needs to implement better storm protection strategies, a one-size-fits-all solution is not rational.
Understanding the unique geological and topographic characteristics of Margate, such as its
existing and extensive system of bulkheads -- which successfully prevented catastrophic damage
to the City as a result of Sandy -- Margate has attempted to present and advocate for storm
prevention strategies that it believes are more protective and cost-effective for the City and its
citizens. The Corps and the DEP have chosen not to even consider these alternatives and have
adopted the one-size-fits-all approach.
More specifically, immediately following Sandy, the Defendants indicated their intention
to implement in various coastal municipalities, including Margate, the Absecon Island Coastal
Storm Risk Reduction Project (the Project), a storm damage reduction and coastal erosion
plan conceived nearly 20 years ago. The relevant portion of the Project calls for the construction
of 12.75-foot high, 25-foot wide sand dunes on the beaches of all four Absecon Island
municipalities - Atlantic City, Ventnor, Margate and Longport. Though the Defendants have
already constructed dunes in Atlantic City and Ventnor, they have yet to award a contract or
commence construction in Margate or Longport.
Initially, the DEP attempted to acquire, by agreement, permanent easements upon
Margates beaches so that the Corps could proceed with construction. Margate, uncertain that
2
the Project would be effective or that it accounted for the Citys distinct characteristics vis--vis
other shore municipalities, declined to grant the requested easements.
Instead, Margate
endeavored to do two things: (1) ascertain the will of its citizens; and (2) determine, based on
expert analysis, and in light of the relative success of the Citys existing storm damage reduction
measures during Sandy, whether the Project was in the Citys best interests.
The will of Margates citizens quickly became clear. In August 2013, the citizens of
Margate formed Margate Citizens Questioning the Beach Project (MCQBP).
See
http://www.mcqbp.org/about.html. The stated mission of MCQBP is to educate and inform

Margate citizens about the Project and to SAVE MARGATE beaches. Id. Unfortunately, as
opposition to the Project grew in Margate, the State of New Jerseys insistence that the Project
be immediately implemented increased.
On September 25, 2013, Governor Chris Christie issued Executed Order No. 140 (EO
140).2 Recognizing that the land upon which the Defendants intend to build the Project is
privately owned, EO 140 orders the DEP to create an Office of Flood Hazard Risk Reduction
Measures to lead and coordinate the efforts of the DEP to acquire the necessary interests in real
property from recalcitrant property owners who have not already granted voluntary
easements. EO 140 states in relevant part:
WHEREAS, employing the procedures set out in [the Act]
N.J.S.A. 20:3-1 et seq., public entities are empowered to condemn
private property for public purposes, including the creation of
Flood Hazard Risk Reduction Measures; and
WHEREAS, pursuant to N.J.S.A. 12:3-64, the [DEP] is authorized
to acquire any lands in the State that it deems advisable, and may
enter upon and take property in advance of making compensation
therefore where for any reason it cannot acquire the property by
agreement with the owner
2
Attached as Exhibit B.
3
Pursuant to this authority, EO 140 orders the Attorney General of the State of New Jersey
(NJAG) to immediately take action to coordinate those legal proceedings necessary to
acquire the necessary easements or other interests in real property for the [Project].
The authority specifically referenced in EO 140 are contained within the Act and require
certain procedures before the subject property can be taken. Those procedures include, among
other things, pre-condemnation appraisal, negotiations, the initiation of legal proceedings and the
condemnees opportunity to object to the condemnors authority to take its property.3 After
Governor Christie issued EO 140, the NJAG and DEP nevertheless did not initiate the process
mandated by the Act. Instead, the DEP continued to request voluntary easements from Margate.
To further ascertain the will of its citizens and guide the decision as to whether to grant
the requested easements, on November 4, 2013, Margate put to referendum the question of
whether its citizens supported the Project. An overwhelming majority of Margates citizens
voted against the Project.
As a consequence, Margate again declined to grant voluntary
easements. Still, the DEP and the NJAG refrained from initiating condemnation proceedings.
Despite Margates voter-expressed opposition to the Project, the Defendants continued to
move forward. On June 23, 2014, the DEP and the Corps entered into a Project Partnership
Agreement to complete construction in Margate. Project commencement appearing imminent,
Margate engaged an expert engineer to analyze the Project and additionally began to solicit
guidance on how it might address the differing views of the DEP and the citizens of Margate.
In late August and early September 2014, Margate commenced a dialogue with the DEP.
Both parties appeared willing to negotiate in good faith for the purpose of trying to reach a
mutually acceptable resolution without resort to litigation. Margate also engaged Charles J.
See N.J.S.A. 20:3-6, 20:3-8, 20:3-11 and 20:3-19.

4
Rooney, P.E., P.P. of T&M Associates to analyze the Project plans and specifications so that the
City could assess, from a technical perspective, whether the Project was in the Citys best
interests.
On September 11, 2014, notwithstanding the parties intentions to conduct
negotiations with respect to the Project and the DEPs failure to acquire the necessary property
interests from Margate, the Corps issued a request for proposal for the Project.
On September 22, 2014, Mr. Rooney issued his report.4 Mr. Rooney, having reviewed
the Project plans and specifications, concluded as follows:
4
5
6
7
8
9
1.
Based on the fact Margate City has a contiguous bulkhead along its entire
oceanfront, one could argue it should have been analyzed separately [from
Ventnor and Longport].5
2.
[I]t would appear the elimination of this alternative [bulkhead restoration] was
premature. Although the bulkhead heights do vary along the Margate City
oceanfront there is a contiguous line of protection which does prevent some
inundation and does provide some storm drainage prevention benefits to the
City. Mr. Rooney deemed problematic the elimination of a beach
restoration/bulkhead alternative as a viable option.6
3.
It is unclear in reviewing the report if the decision to eliminate the beach

restoration with no dune alternative included the existing bulkheads in the
analysis. These issues (questions) have a direct bearing on the conclusion of the
study.7
4.
In the Project report, the Corps states the incorporation of a dune in the [Project]
would require minimal O&M activities and costs over the project life. I strongly
disagree with this statement. The very nature of the dune and its proximity to the
adjacent residences and street ends will require a major effort by Margate City to
retain the dimensions of the dune and manage windblown sand which could
potentially accumulate in and around the homes and onto the streets.8 Mr.
Rooney further concluded there is [i]nsufficient area to allow the City to
properly maintain the dune footprint.9
Attached as Exhibit C.
Ex. C at p. 2.
Ex. C at p. 3, 4.
Ex. C at p. 3.
Ex. C at p. 4.
Ex. C at p. 4.
5
5.
The Project Feasibility Report neglects to address street end drainage (scupper)
systems. In addition, per the Director of Public Works five ocean outfall pipes
exist along the shoreline whereas only one is addressed in the plan.10
6.
Another alternative that should have been reviewed is an elevated berm

[essentially the trunk of the beach] (berm cap) which was successfully analyzed
and utilized in the [Corps] Study for Manasaquan Inlet to Sandy Hook. A
variation of a raised berm for additional consideration would be a stepped berm
elevation with a higher berm elevation of 2 to 3 feet higher at the back end of the
beach stepping down to the recommended berm elevation moving seaward.11
Margate, however, never had the opportunity to present Mr. Rooneys findings to the
Defendants or to negotiate with respect to any aspect of the Project. While the DEP represented
that it would follow the condemnation procedures required under the Act, and despite its
representation that the first step in that process would be an appraisal of the subject property
between late October and late November, neither of those circumstances occurred.12
Instead, on October 1, 2014, the DEP abruptly filed in the Atlantic County Clerks Office
three Administrative Orders. Administrative Orders No. 2014-13, 2014-14 and 2014-15 (the
Administrative Orders)13 purport to take immediate permanent easements in Margates
coastal property for the purpose of constructing sand dunes in furtherance of the Project. The
DEP provided no notice or opportunity to be heard to Margate prior to filing the Administrative
Orders. It provided Margate with no opportunity to object thereafter. In the DEPs view, upon
the filing of the Administrative Orders, the taking was complete.
The language of the Administrative Orders explains why the DEP needed the easements:
WHEREAS, the State is the Non-Federal Sponsor for the Project
pursuant to the [Project Partnership Agreement with the Corps]
and is responsible for obtaining necessary real estate interests; and
10
Ex. C at p. 4.
Ex. C at p .4.
12
See Letter from DEP Commissioner Bob Martin to Mayor Michael Becker dated
September 22, 2014, attached as Exhibit D.
13
Attached as Exhibit E.
11
WHEREAS, the [Corps], in coordination with the State of New

Jersey, is scheduled to begin construction of the Project in the City
of Margate and the Borough of Longport in or about December,
2014; and
WHEREAS, prior to construction, the [Corps] requires that the
State provide the easements and/or other real property interests that
are necessary to construct and maintain the Project; and
WHEREAS, if the State does not obtain all required easements
and/or other real property interests in the City of Margate, the
[Corps] cannot construct the [Project]14
The Administrative Orders also make clear that the DEP believes that it can take Margates
property with no notice or opportunity to be heard whatsoever, stating that the DEP hereby
immediately enters upon and takes real property interest(s) in those parcels set forth in Exhibit
A.15 The interests purportedly acquired by the DEP were not titles in fee simple, but Perpetual
Storm Damage Reduction Easement[s].16 Critically, N.J.S.A. 12:3-64, which grants the DEP
condemnation authority under the Act, does not permit the taking of easements and, to the
contrary, requires the DEP to take fee simple interests through condemnation.
Thus, the Administrative Orders purport to constitute a completed taking of Margates
property, without respect to Margates rights under the Act or the limits of the DEPs
condemnation powers. When Margate learned of the Administrative Orders, it was concerned
that the DEP no longer intended to engage in negotiations. Still preferring negotiations to
litigation, but mindful of the need to preserve its right to dispute the legality of the
Administrative Orders, Margate requested that the parties enter into a Standstill and Tolling
Agreement.
14
15
16
Ex. E at p. 3.
Ex. E at p. 3.
Ex. E at Exhibit C, p. 1.
7
On October 2, 2014, the DEP and Margate entered into a Tolling and Standstill
Agreement.17 The Tolling and Standstill Agreement placed the DEP on notice of Margates
objection to the Administrative Orders as valid takings and preserved all rights, causes of action
and defenses that Margate might have.
Still not having had any opportunity to participate in negotiations, Margate grew
increasingly concerned that the Corps, despite Margates objection to the Administrative Orders,
appeared to be moving ahead with the Project. On October 28, 2014, Margate, through counsel,
sent a letter to Keith Watson, Project Manager, advising the Corps of Margates objection to the
Administrative Orders and of the Tolling and Standstill Agreement between Margate and the
DEP.18 The Corps did not respond to this letter. Rather, on October 30, 2014, the Corps opened
bids related to the Project.
On November 4, 2014, Margates citizens participated in a second Project-related
referendum. Margates citizens voted in favor of bringing legal action to stop the construction of
dunes on its beaches.
Margate, still hoping in earnest to avoid litigation, endeavored to
determine whether the Corps would refrain from awarding the Project contract (the Contract)
until the DEP and Margate had at least had the opportunity to meet and negotiate. Indeed,
negotiation sessions had been initially scheduled, and the parties were in the midst of attempting
to reschedule a meeting for mid-November.
On November 7, 2014, Margate, through counsel, sent a letter to the Corps General
Counsel in its Philadelphia Office, Bill Wilcox, Esquire, advising the Corp that the DEPs and
Margates dispute had not been resolved but that the parties were in the process of scheduling
17
18
Attached as Exhibit F.
Attached as Exhibit G.
8
negotiations.19
Recognizing that the awarding of the Contract and commencement of
construction would seriously undermine negotiations and irreparably harm the City, Margate
stated as follows: Please advise us as soon as possible if the Corps intends to move forward
with the process of awarding and, ultimately, executing a contract for the Project. Though the
City remains optimistic that a settlement can be reached, these facts will necessarily impact the
landscape upon which the parties have been attempting to reach an amicable resolution.20 The
Corps did not respond to Margates letter.
On November 12, 2014, the Corps posted an Abstract comparing bids received for the
Project. It therefore appeared that, despite Margates correspondence with the Corps and its
unresolved dispute with the DEP, the Defendants had no intention of slowing, let along halting,
the Project.
On November 19, 2014, still not having received any response from the Corps, Margates
counsel called Mr. Wilcox to inquire as to the reason for the Corps lack of a response and to
determine whether the Corps intended to award the Contract notwithstanding Margates
unresolved dispute with the DEP concerning the effect of the Administrative Orders. Mr.
Wilcox informed Margates attorney that the Corps was satisfied with the DEPs certification
that it had acquired Margates property by virtue of the Administrative Orders, and that the
Corps would therefore proceed, in reliance on the DEPs certification, to award the Contract
soon. Not today, but soon.
On November 24, 2014, Margates counsel spoke to Assistant Attorney General of New
Jersey, David Apy. Mr. Apy confirmed that the Defendants would not agree to halt the Project
for any reason. Later that day, Margate initiated this action and filed a Motion for Temporary
19
20
Attached as Exhibit H.
Ex. H. at p. 2.
9
Restraining Order and Order to Show Cause Why Preliminary Injunction Should Not Issue (the
Motion) (Docket No. 3). On November 24, 2014, the Court granted Margates Motion
(Docket No. 5).
As ordered, Margate immediately provided notice via electronic mail to
opposing counsel, Mr. Apy for the DEP and Mr. Wilcox for the Corps.21
III.
STANDARD
To obtain a preliminary injunction, the movant must show: (1) a likelihood of success
on the merits; (2) that he will suffer irreparable harm if the injunction is denied; (3) that granting
the preliminary relief will not result in greater harm to the non-moving party; and (4) that the
public interest favors such relief. Hopkins v. DiCristi, 2014 WL 4681044, at *1 (D.N.J. Sept.
22, 2014). Notably, the Third Circuit has construed the likelihood of success requirement as a
mandate that a movant demonstrate only a reasonable probability of eventual success in the
litigation. Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 800 (3d Cir. 1989).
Here, the standard is easily met. The Act requires the DEP to commence eminent domain
proceedings in New Jersey Superior Court and to provide Margate with notice and an
opportunity to be heard. In fact, the Act provides the exclusive procedure for taking private
property for public use[.] Milgram, 2008 WL 2726727 at *4. The DEP has declined to follow
the statutorily required process. Had the DEP instituted condemnation proceedings, it is wellsettled that in the case in which the defendant denies that the condemnor is authorized to take
the property, it is appropriate to postpone the physical occupancy of the property by the plaintiff
until the Court has ruled on the basic validity of the proposed taking. County of Sussex v.
Merrill Lynch Pierce Fenner & Smith, 796 A.2d 958, 961 (N.J. Super. Ct. 2001), affd, 796 A.2d
913 (N.J. Super. A.D. 2002); see also Bridgewater Township v. Yarnell, 314 A.2d 367, 369 (N.J.
1974) (holding Appellate Division erred in denying motion for stay pending appeal because the
21
Attached as Exhibit I.
10
Act specifically requires proceedings to be stayed where authority to condemn is denied). The
basic legislative intent of [the Act] is to make sure that, where there is a denial of the authority to
take, there is no ousting of the defendant from possession of the property until the Court has
made a definitive ruling to the effect that the taking is one which is authorized by law. County
of Sussex, 796 A.2d at 961.
Here, the DEP failed to follow the Act, or any process, by which Margate would have
had notice and an opportunity to be heard prior to the DEP declaring a completed taking pursuant
to the Administrative Orders. As the Corps is wholly relying on the DEPs purported taking, it is
appropriate for the Court to enjoin the Corps from awarding the Contract and commencing
construction until the Court makes a final determination as to the validity of the Administrative
Orders and the Corps intended course of action in reliance thereon.
IV.
ARGUMENT
A.
Margate is Reasonably Likely to Prevail on the Merits.

1.
Margate Has a Reasonable Probability of Succeeding on its Claim

that the Administrative Orders are Invalid.
a.
The Administrative Orders violate the Act.
The New Jersey Supreme Court has explained that [e]minent domain involves the taking
of private property, and has always been subject to constitutional limits.
Borough of
Merchantville v. Malik & Son, LLC, 95 A.3d 709, 716-17 (N.J. 2014). These limits are only
satisfied so long as property owners have reasonable notice and the opportunity to be heard
before the final determination of judicial questions that may be involved in the condemnation
proceedings. RLR Investments, LLC v. Town of Kearny, 386 Fed.Appx. 84, 89 (3d Cir.
2010). Here, the DEP declined to give Margate any notice or opportunity to be heard prior to
declaring a completed taking pursuant to the Administrative Orders.
11
The Act required the DEP to follow a detailed process that protects condemnees rights.
The Act states: Whenever any condemnor shall have determined to acquire property pursuant
to law, including public property already devoted to public purpose, but cannot acquire title
thereto or possession thereof by agreement the condemnation of such property and the
compensation to be paid therefor and all matters incidental thereto and arising therefrom shall
be governed, ascertained and paid by and in the manner provided by this act. N.J.S.A.
20:3-6. The Act defines condemnor as the entity, public or private, including the State of
New Jersey. N.J.S.A. 20:3-2(b). Pursuant to the settled rules of statutory construction, [i]n
the absence of a specific definition, the language of the statute should be given its ordinary
meaning and construed in a common sense manner to accomplish the legislative purpose.
Liberty Lincoln-Mercury, Inc. v. Ford Motor Co., 171 F.3d 818, 822 (3d Cir. 1999). The term
shall, though not defined in the Act, is generally mandatory when used in a statute.
Shenango, Inc. v. Apfel, 307 F.3d 174, 193 (3d Cir. 2002). Thus, any public entity, including the
DEP, must comply with the Act to acquire property by eminent domain.
Under the Act, a condemnor must, prior to instituting condemnation proceedings in the
New Jersey Superior Court, attempt to acquire the property at issue through bona fide
negotiations, which negotiations shall include an offer in writing by the condemnor to the
prospective condemnee setting forth the property and interest therein to be acquired, the
compensation offered to be paid and a reasonable disclosure of the manner in which the amount
of such offered compensation has been calculated ... Prior to such offer the taking agency shall
appraise said property and the owner shall be given an opportunity to accompany the appraiser
during inspection of the property. N.J.S.A. 20:3-6. Thereafter, the condemnor must give the
condemnee 14 days to accept or reject the offer. Id. These bona fide negotiations are essential to
12
the condemnation process as the purpose of the Legislature in enacting N.J.S.A. 20:3-6 was
to encourage entities with condemnation powers to make acquisitions without litigation.
City of Passaic v. Shennett, 915 A.2d 1092, 1096 (N.J. Super. A.D. 2007) (internal quotations
and citations omitted). These requirements are not only essential, they are jurisdictional. New
Jersey courts may not even entertain condemnation proceedings where the condemnor has failed
to comply with the foregoing requirements. Id. at 1097.
Here, the DEP failed to comply with the Act, and the Administrative Orders therefore
have no legal effect, a fact of which the DEP should have been aware given its past experience
with deviations from the Act. In Milgram v. Ginaldi, the DEP similarly attempted to circumvent
the Act to acquire easements in Long Beach Island, New Jersey. 2008 WL 2726727. There, as
here, the DEP, in conjunction with the Corps, intended to construct dunes on private and
municipally-owned beaches. Id. at *1. In fact, the DEP sought to first obtain voluntary Storm
Damage Reduction Easements, precisely as it has done in this case. Id. at *2. When it was not
successful, rather than following the procedures required under the Act, the DEP filed a
complaint and order to show cause seeking a preliminary injunction requiring property owners to
grant easements for shore protection purposes and enjoining property owners from interfering
with construction. Id.
The trial court dismissed the DEPs complaint, and the Appellate Division affirmed
because the DEP failed to follow the procedures required by the Act. Id. at *3. In particular, the
Appellate Division noted the above-cited provisions of N.J.S.A. 20:3-6 and held: a demand
for a perpetual easement from these defendants amounted to a taking of private property without
just compensation. To accomplish this apparently legitimate public purpose, [the DEP] was
required to comply with the procedural requirements of [the Act]. Id. at *4. The Appellate
13
Division in fact explicitly recognized that Act is the exclusive procedure for taking private
property for public use[.] Id.
The exact same logic demonstrates why injunctive relief is necessary. The DEP has
purposefully undermined the essential purpose of the Act by depriving Margate of the right to
participate in negotiations. It has also deprived Margate of its rights by denying it any notice or
the opportunity to be heard i.e, to object to the DEPs authority to condemn via the
Administrative Orders.
The Act, moreover, expressly states that [w]hen the authority to
condemn is denied, all further steps in the action shall be stayed until that issue has been finally
determined. N.J.S.A. 20:3-11. The DEPs failure to afford Margate its guaranteed right to be
heard, and more specifically to object, renders the Administrative Orders legal nullities.
In sum, the DEP undermined the essential purpose of the Act and wholly deprived
Margate of the opportunity to challenge that conduct. Margate is therefore reasonably likely to
succeed on the merits of its claim that the Administrative Orders are invalid.
b.
N.J.S.A. 12:3-64 requires the DEP to comply with the Act

and prohibits the taking of easements.
The DEP will no doubt argue that it does not have to comply with the Act in reliance on
N.J.S.A. 12:3-64. That position, in addition to being rejected implicitly by the New Jersey
Superior Court Appellate Division in Milgram, fails because N.J.S.A. 12:3-64 both requires
compliance with the act and does not apply to easements.
The DEPs eminent domain authority arises under N.J.S.A. 12:3-64. That statute states:
The [DEP] may acquire title, in fee simple, in the name of the State, by gift, devise or purchase
or by condemnation in the manner provided in chapter one of the Title Eminent Domain (20:11 et seq.) to any lands in the State, including riparian lands, of such area and extent which, in the
discretion of the department, may be necessary and advisable. (emphasis added). The language
14
clearly requires the DEP to follow the procedures set forth in the Act. Further, the DEP is only
authorized to take title to property in fee simple, even if it complies with the Act.
Here, the DEP failed to comply with its enabling legislation, both procedurally and
substantively. Instead of complying with the Act, it filed the Administrative Orders so as to
deprive Margate of any notice or opportunity to be heard. Instead of taking title in fee simple,
the DEP purported to take perpetual easements so as to require Margate to bear the costs
associated with future dune maintenance. In light of the plain and mandatory language of the
Act and N.J.S.A 12:3-64, the Administrative Orders have no legal effect.
The DEP may nevertheless argue that N.J.S.A. 12:3-64 permits it to effectuate takings
without complying with the Act. It will likely rely upon the provision of the statute that states:
The department may enter upon and take property in advance of making compensation therefor
where for any reason it cannot acquire the property by agreement with the owner. This section,
however, only relieves the DEP of the requirement that it make compensation upon the taking. It
does not, and indeed cannot reasonably, mean that the DEP may ignore all of the other
provisions of the Act.
As an initial matter, this construction is directly contrary to the purpose of the Act.
We know that the purpose of the Legislature in enacting [the Act]
was to encourage entities with condemnation powers to make
acquisitions without litigation. Such a procedure thereby saves
both the acquiring entity and the condemnee the expenses and
delay of litigation. It permits the landowner to receive and keep
full compensation. This purpose is furthered by strict construction
of [the Act]. If a condemnor may ignore the statute and later cure
the proceedings, the purpose of [the Act] will be completely
frustrated.
City of Passaic, 915 A.2d at 1096 (quotations omitted).
In addition to undermining the purpose of the Act, there are six fatal flaws in the DEPs
construction of this language. First, if the foregoing language meant that the DEP did not have
15
to comply with the Act at all, N.J.S.A. 12:3-64s first sentence, which requires compliance
with the Act, would be superfluous. A statute should be construed so that effect is given to all
its provisions, so that no part will be inoperative or superfluous. Clark v. Rameker, 134 S. Ct.
2242, 2248 (2014). The DEPs interpretation renders the first sentence of N.J.S.A. 12:3-64
meaningless, and it is therefore untenable.
Second, a more logical reading of the statute can give effect to both sentences. The Act
provides a two-part procedure by which a condemnor may take immediate physical possession of
property. First, the condemnor may [a]t any time contemporaneous with or after the institution
of the action and service of process also file in the recording office, a declaration of
taking. N.J.S.A. 20:3-17. Second, [s]imultaneously with the filing of the declaration of
taking, the condemnor shall deposit the amount of such estimated compensation with the clerk of
the court. N.J.S.A. 20:3-18. The language upon which the DEP may rely in support of the
Administrative Orders does not dispense with the entirety of the Act, only of the latter
requirement that the DEP pay compensation immediately upon filing a declaration of taking and
taking physical possession of property.
Third, this is precisely the interpretation accorded by Courts to statutes containing
identical language with regard to the condemnation authority of other New Jersey State agencies.
See, e.g., State by State Highway Commissioner v. Seaway, Inc., 217 A.2d 313, 314 (N.J. 1966)
(State Highway department took possession only after instituting condemnation proceedings, but
was not required to deposit a fund in court prior to his entry upon the land as a result of
identical language to that contained in N.J.S.A. 12:3-64).
Fourth, the remainder of N.J.S.A. 12:3-64 specifically reinforces the view set forth
above. It states: Upon the department exercising the right of condemnation and entering upon
16
and taking land in advance of making compensation therefor it shall proceed to have the
compensation fixed and paid to the owner, as provided in said chapter one of the Title Eminent
Domain. N.J.S.A. 12:3-64 (emphasis added). Thus, the DEP must file a complaint as
required under the Act. It must file a declaration of taking, as also required under the Act. But it
may forego the making of just compensation until the amount of compensation has been
determined by permitting the procedures required under the Act to conclude. Clearly, N.J.S.A.
12:3-64 requires the proceedings mandated by the Act.
Fifth, there is no indication that N.J.S.A. 12:3-64 was intended to give the DEP more
powerful condemnation authority than any other agency or even the State itself. Indeed, in the
only published decision concerning the DEPs eminent domain powers under N.J.S.A. 12:3-64,
the DEP itself followed the procedures set forth in the Act. See State v. Archer, 257 A.2d 1, 2
(N.J. Super. A.D. 1969) (DEPs predecessor entity instituted condemnation by complaint in New
Jersey Superior Court to acquire property in Raritan Bay and Sandy Hook Bay [i]n conjunction
with a Federal project for beach erosion control and hurricane protection).
Sixth, and finally, the DEPs urged construction would eliminate any process prior to
effectuating a taking in violation of a condemnees rights. The rule is settled that as between
two possible interpretations of a statute, by one of which it would be unconstitutional and by the
other valid, our plan duty is to adopt that which will save the [statute]. National Federation of
Independent Business v. Sebelius, 132 S. Ct. 2566, 2593 (2012). Thus, Margates interpretation
must prevail.
In sum, because N.J.S.A. 12:3-64 does not forgive the DEPs non-compliance with the
Act, Margate has a reasonable probability of succeeding on its claim that the Administrative
Orders have no legal effect.
17
c.
Executive Order No. 140 does not and cannot preempt the Act
or N.J.S.A. 40:61-22.20.
The DEP may also assert that EO 140 authorized condemnation through the
Administrative Orders in lieu of the Act. As a matter of fact, that is not true. EO 140 on its face
relies upon the condemnation authority in the Act and in N.J.S.A. 12:3-64 in ordering the DEP,
in conjunction with the NJAG, to coordinate those legal proceedings necessary to acquire the
necessary easements or other interests in real property for the system of Flood Hazard Risk
Reduction Measures.
Thus, EO 140 acknowledged and relied upon existing statutory
procedures, which include legal proceedings, and merely ordered the DEP to employ them. The
DEP did not do so. The plain language of EO 140, however, does not sanction that conduct, let
alone order it or constitute authority for it.
Nor could it have.
The New Jersey Constitution vests lawmaking power in the
Legislature, N.J. Const. art IV, 1, 1, and while an executive order is entitled to deference, it
cannot amend or repeal specific statutory provisions. Perth Amboy Bd. of Educ. v. Christie, 997
A.2d 262, 268 (N.J. Super. A.D. 2010). This is because of the bedrock principle of our federal
and state constitutional forms of government the separation of powers.
Id. at 269.
[E]mergency executive power can be an unconstitutional usurpation of legislative authority

either when the executive acts contrary to the expressed or implied will of the Legislature or
when the Legislature has failed to act. Id. Where an executive order dramatically alter[s] the
existing and comprehensive statutory scheme, it unconstitutionally operates to impliedly repeal
that regime. Communications Workers of America, AFL-CIO v. Christie, 994 A.2d 545, 571-72
(N.J. Super A.D. 2010). In that instance, a court may not accord deference to a governors
unilateral attempt to exercise the Legislatures powers. Id. at 571.
18
Had EO 140 ordered the DEP to defy the statutory mandates of the Act and of N.J.S.A.
12:3-64, it would have constituted an unconstitutional usurpation of Legislative authority
because it would have been inconsistent with an existing and comprehensive statutory scheme
governing the use of eminent domain powers, namely the Act.
In addition, Margate is statutorily vested with sole control of and authority over its
coastal property pursuant to N.J.S.A. 40:61-22.20. That provision states: The governing
body of any municipality bordering on the Atlantic Ocean, tidal water bays or rivers which owns
lands bordering on the ocean, tidal bays or rivers for a place of resort for public health and
recreation and for other public purposes shall have the exclusive control, government and care
thereof and of any boardwalk, bathing and recreational facilities, safeguards and equipment.
Id. The New Jersey Legislature, through the foregoing provision, imbued Margate with sole
control of its municipally-owned beaches, and while that fact may not preclude a taking under
the Act, it certainly prohibits the Governor from using EO 140 to wholly subvert Legislative
intent.
Notably, Margate has exercised its statutory authority and enacted Margate Ordinance
2001-14, which states: The Board of Commissioners shall not (i) approve any Dunes project;
(ii) appropriate any funds for a Dunes project; (iii) enter into any Cooperative Agreement; nor
(iv) authorize the acquisition of property or any interest in property, whether by purchase,
eminent domain, or otherwise, for a Dunes Project, other than by means of an ordinance duly
adopted by the Board of Commissioners, which ordinance shall, by its terms, not be effective
until it has been submitted to and approved by the voters of the City of Margate at an election
duly scheduled for that purpose. Margate Ordinance 2001-14(II).
19
In short, EO 140 rightfully requires compliance with the Act. If construed as likely urged
by the DEP, EO 140 contravenes the Act, N.J.S.A. 40:61-22.20 and Margate Ordinance 200114, and it therefore violates the separation of powers doctrine. Margate is therefore reasonably
likely to prevail on the merits of its claim that the Administrative Orders have no legal effect.
d.
The DEPs purported exercise of its condemnation authority

was substantively and procedurally arbitrary and capricious.
The DEPs exercise of its eminent domain authority was arbitrary and capricious both
procedurally and substantively. Procedurally, the DEP opted to forego the process required
under the Act and to otherwise attempt to acquire Margates property without resort to any
lawful means of doing so. The filing of the Administrative Orders ignored the expressed public
concern over the Project and deprived Margate of the right to object to the taking, all while
Margate was under the impression that negotiations would soon commence.
The DEP,
moreover, continued to assert that it would participate in negotiations while preparing and
ultimately filing the Administrative Orders. Despite Margates retention of expert engineers to
examine the Project, and despite the parties repeated discussions concerning their intent to
negotiate, the DEP filed the Administrative Orders and has to date refused to participate in any
discussion of Margates position or the analysis conducted by its engineers. The DEPs outright
refusal to consider Margates position coupled with its course of action designed to guarantee
that Margate would have no notice or opportunity to be heard as to that position, is, procedurally,
arbitrary and capricious.
Substantively, the Administrative Orders must be declared void because the decision to
implement the nearly 20-year old plans for the Project is arbitrary and capricious. On September
22, 2014, Margates engineer, Charles Rooney issued his report.22 Mr. Rooney, having reviewed
22
See Ex. C.
20
the Project plans and specifications, spelled out the specific problems with the Defendants
approach. The Defendants, however, have refused to meet and discuss Margates concerns.
Thus, the DEP, by refusing to participate in or provide any process, has wholly refused to discuss
or consider that: (1) Margate has a contiguous, uninterrupted bulkhead system which may, in its
current or a fortified form, constitute sufficient or superior storm damage protection than the
Project; (2) an identical or superior result may be achieved by widening and/or heightening the
beach berm in lieu of constructing dunes; (3) the Project will cause street-end drainage issues for
which it does not account; (4) Margate will be responsible for untold, unending maintenance
obligations concerning the dunes; and (5) Margates existing bulkhead system provided effective
protection during Hurricane Sandy.
Where, as here, an agency exercises its condemnation authority in an arbitrary and
capricious manner, manifestly abuses its power or otherwise acts in bad faith, that action must be
voided. See Township of Readington v. Solberg Aviation Co., 976 A.2d 1100, 1116-17 (N.J.
Super. A.D. 2009) (collecting authority); Borough of Essex Fells v. Kessler Institute for
Rehabilitation, 673 A.2d 856, 858, 863 (N.J. Super. Ct. 1995) (dismissing condemnation
proceeding filed to acquire property for the purpose of preventing construction of rehabilitation
facility in the borough). Margate is therefore reasonably likely to prevail on the merits of its
claim that the Administrative Orders are invalid.
2.
Margate is Reasonably Likely to Prevail on the Merits of its Claims

Against the Corps Because the Corps Cannot Award the Contract and
Commence Construction in Reliance On the Invalid Administrative
Orders.
The Corps awarding of the Contract and commencement of construction upon Margates
beaches constitutes an imminent trespass upon, and immediate alteration of, the Citys property.
As argued above, Margate has had no opportunity to have its objection to the Administrative
21
Orders heard. The Corps and the DEP utilized the Administrative Orders to circumvent the
entirety of the required process that would have safeguarded Margates rights. The Corps,
moreover, is expressly relying on the DEPs representation that it acquired the necessary
easements by virtue of the Administrative Orders. As the Administrative Orders are void,
Margate is reasonably likely to succeed on its claim that the Corps action is contrary to law,
contrary to its rights and without observance of procedure required by law. See 5 U.S.C. 706.
Because the Administrative Orders are void, the Corps conduct constitutes an imminent
trespass to land. [T]respass constitutes the unauthorized entry (usually of tangible matter) onto
the property of another. Rowe v. E.I. DuPont De Nemours and Co., 262 F.R.D. 451, 463
(D.N.J. 2009). Thus, there are two elements to this claim: 1) an entry onto anothers property,
and 2) the entry is unauthorized. Id. The Corps intends to immediately award the Contract and
commence construction upon land owned by Margate. Margate has not authorized this entry
upon its property. Margate is therefore reasonably likely to succeed on its claim that the Corps
imminent conduct constitutes a trespass upon, and unauthorized alteration of, its beaches which
must be enjoined
B.
The Corps Imminent Conduct Will Irreparably Harm Margate.
The irreparable injury analysis is markedly different where, as here, the public interest is
directly affected. Instant Air Freight, 882 F.2d at 803. As the Supreme Court has observed,
parts of equity may, and frequently do, go much farther both to give and withhold relief in
furtherance of the public interest than they are accustomed to go when only private interests are
involved. Id. (quotations omitted). This is especially the case where the public interest in
question has been formalized in a statute. Id.
Moreover, a statutory provision authorizing preliminary injunctive relief upon a
showing of probable cause to believe that the statute is being violated may be considered a
22
substitute for a finding of irreparable harm for purposes of a preliminary injunction issued under
Rule 65. Id. See also Assisted Living Assocs. of Moorestown v. Moorestown Twp., 996 F.
Supp. 409, at 438-39 (D.N.J. 1998) (collecting authority); Bosworth v. Ehrenreich, 823 F. Supp.
1175, 1182 (D.N.J. 1993) (In certain cases, however, the courts of this circuit will consider a
provision in a statute which authorizes injunctive relief on a showing of probable cause to
believe the statute is being violated as a substitute for a finding of irreparable harm. In such
cases, the granting of an injunction is seen as serving the public interest, as expressed by the
legislature in enacting the statute.) (internal quotations omitted).
This case implicates a public interest expressed both by the Act and the citizens of
Margate. The Commissioners of Margate have filed this action on its citizens behalves based on
two voter referenda indicating that more than half of the Citys citizens oppose the Project.
Margates right to at least be heard prior to condemnation is expressly codified in the Act, which
explicitly authorizes preliminary injunctive relief in two provisions. When the authority to
condemn is denied, all further steps in the action shall be stayed until that issue has been finally
determined. N.J.S.A. 20:3-11. Notably, the foregoing provision does not even require a
showing of probable to stay proceedings. Where, moreover, a condemnor seeks immediate
possession notwithstanding the pendency of proceedings, a condemnee may, upon application
and good cause shown obtain a stay of the taking. N.J.S.A. 20:3-19. Thus, the critical public
interests involved in Margates public beaches coupled with the Acts provisions authorizing
injunctive relief even absent a showing of irreparable harm operate as a substitute for a finding of
irreparable harm. See R.S. v. Somerville Bd. of Educ., 2011 WL 32521, at *6 (D.N.J. Jan. 5,
2011) (finding that the function of the stay put is essentially a preliminary injunction issued
without the necessity to establish the usual injunctive prerequisites the statute substitutes an
23
absolutes rule in favor of the status quo for the courts discretionary consideration of the factors
of irreparable harm and either a likelihood of success on the merits or a fair ground for litigation
and a balance of the hardships.); County of Sussex, 796 A.2d at 961 (N.J. Super. Ct. 2001)
(noting propriety of stay once condemnee challenges authority of condemnor).
Even if the Court is inclined to further scrutinize this issue, the construction of dunes
upon Margates beaches constitutes irreparable harm. It is generally recognized that monetary
relief fails to provide adequate compensation for an interest in real property, which by its very
nature is considered unique In re Bella Vista Associates, LLC, No. 07-2241, 2007 WL 455891,
at *10 (Bankr. D.N.J. Dec. 18, 2007) (Wizmur, J.). Harm affecting interests in real property
therefore is presumptively irreparable. Id. Here, the construction of dunes on Margates beaches
is undoubtedly irreparable. As noted in the Rooney Report (Exhibit C), [t]he dynamics of
dunes are such that once constructed they will continue to accumulate material increasing in
height and width. Due to this dynamic, when coupled with a major beach fill, the initially
constructed dune can quickly grow in height and width.
As the dune increases in height
oceanfront views are compromised and the increased width of the dune will potentially encroach
onto upland facilities in some areas and reduce the usable portion of the beach on the seaward
side of the dune. Presently dues are protected by the [DEP] and once installed cannot be
eliminated.23 Defendants propose to not only take Margates property, but also to completely
alter its character. The dunes, once constructed, may not simply be removed. Rather, the DEP
must approve a permit to remove them. See N.J.A.C. 7:7E-3.16(b). The Corps immediate
entry onto and complete alteration of Margates beaches therefore constitutes irreparable harm.
23
Ex. C at p. 8.
24
Finally, an alleged constitutional infringement will often alone constitute irreparable

harm. American Express Travel Related Servs. Co., Inc. v. Sidamon-Eristoff, 755 F. Supp. 2d
556, 614 (D.N.J. 2011); Association for Fairness in Business, Inc. v. New Jersey, 82 F. Supp. 2d
353, 363 (D.N.J. 2000). As the New Jersey Supreme Court has recognized, [e]minent domain
involves the taking of private property, and has always been subject to constitutional limits.
Borough of Merchantville, LLC, 95 A.3d at 716-17. These limits are only satisfied so long as
property owners have reasonable notice and the opportunity to be heard before the final
determination of judicial questions that may be involved in the condemnation proceedings.
RLR Investments, 386 Fed.Appx. at 89. The Corps reliance on the invalid Administrative
Orders to trespass upon and completely alter Margates beaches, before Margate has had any
opportunity to be heard as constitutionally required, warrants a finding of irreparable harm.
C.
The Defendants will Not be Harmed by the Requested Injunctive Relief, and
the Requested Relief Serves the Public Interest.
The interests of the citizens of Margate will be served by preliminary injunctive relief.
Such relief will in fact acknowledge the voter-expressed will of over half of the Citys citizens.
Moreover, it is within all citizens interests to constrain agency powers, and in particular
condemnation powers, within constitutional and statutory limits and the common law. There is
no question that the DEP did not comply with the Act. There is likewise no question that the
Corps is relying on the DEPs representation that it acquired all necessary easements by filing
the Administrative Orders. It is therefore within all citizens interests to enjoin the Contract
award and commencement of construction until the Court makes a final determination whether
the Corps may lawfully proceed as planned. The Defendants, moreover, will not be harmed if
they are forced to wait for this Court to determine whether the Corps can award the Contract and
25
commence construction upon Margates beaches. The remaining preliminary injunction factors
therefore strongly favor preliminary injunctive relief.
V.
CONCLUSION
The DEP employed no lawful process to take Margates beaches. Relying on the DEPs
representations that it could acquire easements without process, the Corps intends to immediately
award the Contract and start construction, after which the Defendants intend to make Margate
pay to maintain the dunes forcibly constructed on the Citys beaches. Because these actions
deprive Margate and its citizens of their rights under the Act and the law, Margate respectfully
requests that the Court issue a preliminary injunction enjoining the Corps from awarding the
Contract and commencing construction pending a final judgment in this case.
Respectfully submitted:
/s/ Thomas S. Biemer
Jordan M. Rand, Esquire
Robert Andrews, Esquire
DILWORTH PAXSON LLP
1500 Market Street, Suite 3500E
Tel: 215-575-7000
Fax: 215-575-7200
Emails:
tbiemer@dilworthlaw.com;
jrand@dilworthlaw.com;
randrews@dilworthlaw.com
Attorneys for Plaintiff,
City of Margate, New Jersery
26

:
Plaintiff, :
:
v.
: C.A. No: 14-7303-RMB-AMD
:
UNITED STATES ARMY CORPS OF ENGINEERS,
:
and
:
NEW JERSEY DEPARTMENT OF ENVIRONMENTAL
:
PROTECTION,
:
Defendants. :
CERTIFICATE OF SERVICE
I, Thomas S. Biemer, hereby certify that on December 1, 2014, I caused a true and
correct copy of the foregoing Memorandum of Law to be served via electronic mail as follows:
Bill Wilcox, Esquire
United States Army Corps of Engineers
Office of Counsel
The Wanamaker Building
100 Penn Square East
william.a.wilcox@usace.army.mil
David C. Apy
Assistant Attorney General
Division of Law, Director's Complex
R.J. Hughes Justice Complex
25 Market Street, P.O. Box 112
Trenton, N.J. 08625
Tel: 609-292-8567
David.Apy@dol.lps.state.nj.us
/s/ Thomas S. Biemer

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Case 1:14-cv-07303-RMB-JS Document 10-1 Filed 12/01/14 Page 1 of 2 PageID: 253

UNITED STATES DISTRICT COURT

Civil Action No. 14-cv-7303

UNITED STATES ARMY CORPS OF

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The public interest will be served by the requested relief;

IT IS HEREBY FURTHER ORDERED that THE CORPS IS ENJOINED from

Case 1:14-cv-07303-RMB-JS Document 10 Filed 12/01/14 Page 1 of 31 PageID: 222

UNITED STATES DISTRICT COURT

BRIEF IN SUPPORT OF APPLICATION FOR A PRELIMINARY INJUNCTION

Thomas S. Biemer, Esquire

Case 1:14-cv-07303-RMB-JS Document 10 Filed 12/01/14 Page 2 of 31 PageID: 223

Margate is Reasonably Likely to Prevail on the Merits................................................11

Margate Has a Reasonable Probability of Succeeding on its Claim That the

The Corps Imminent Conduct Will Irreparably Harm Margate...............................22

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Case 1:14-cv-07303-RMB-JS Document 10 Filed 12/01/14 Page 4 of 31 PageID: 225

STATE COURT CASES

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A copy of all electronic cases are attached hereto as Exhibit A.

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Case 1:14-cv-07303-RMB-JS Document 10 Filed 12/01/14 Page 7 of 31 PageID: 228

http://www.mcqbp.org/about.html. The stated mission of MCQBP is to educate and inform

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As a consequence, Margate again declined to grant voluntary

See N.J.S.A. 20:3-6, 20:3-8, 20:3-11 and 20:3-19.

Case 1:14-cv-07303-RMB-JS Document 10 Filed 12/01/14 Page 9 of 31 PageID: 230

On September 11, 2014, notwithstanding the parties intentions to conduct

It is unclear in reviewing the report if the decision to eliminate the beach

Case 1:14-cv-07303-RMB-JS Document 10 Filed 12/01/14 Page 10 of 31 PageID: 231

Another alternative that should have been reviewed is an elevated berm

Case 1:14-cv-07303-RMB-JS Document 10 Filed 12/01/14 Page 11 of 31 PageID: 232

WHEREAS, the [Corps], in coordination with the State of New

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Margate, still hoping in earnest to avoid litigation, endeavored to

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Recognizing that the awarding of the Contract and commencement of

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As ordered, Margate immediately provided notice via electronic mail to

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Margate is Reasonably Likely to Prevail on the Merits.

Margate Has a Reasonable Probability of Succeeding on its Claim

The Administrative Orders violate the Act.

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The Act, moreover, expressly states that [w]hen the authority to

N.J.S.A. 12:3-64 requires the DEP to comply with the Act

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Thus, EO 140 acknowledged and relied upon existing statutory

The New Jersey Constitution vests lawmaking power in the

[E]mergency executive power can be an unconstitutional usurpation of legislative authority

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The DEPs purported exercise of its condemnation authority

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Margate is Reasonably Likely to Prevail on the Merits of its Claims

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The Corps Imminent Conduct Will Irreparably Harm Margate.