Over allegations of facial unconstitutionality under the Fifth Amendment, the United States District Court for the District of New Jersey upheld NJDEP's Hudson River Waterfront Area regulation. The rule requires all waterfront property owners inside the Hudson River Waterfront Area (from the George Washington Bridge to the Bayonne Bridge) to construct and maintain a 30-foot walkway along the entire waterfront edge as a prerequisite for obtaining a Waterfront Development Permit.
The plaintiff Builders' Associations contended that the requirement, promulgated about 10 years before the suit was brought, amounted to an unconstitutional taking without compensation. Focusing on the "very important characteristic" that nearly 90% of the land that is to become walkway was submerged beneath the Hudson River until being filled in artificially, the court found that the land is public trust property. As such, the court determined that the public has a right to use and enjoy the property, and the plaintiffs do not have the right to exclude public access. National Ass'n of Home Builders v. New Jersey Dep't of Environmental Protection, Civ. 98-2514 (GEB) (D. N.J. Aug. 12, 1999).
