Thanks to SCOTUS, NJ Developers May Navigate Waterways Decisions More Quickly

Peter Reinhart, director of the Kislak Real Estate Institute at Monmouth University (Steve Lubetkin Photo/ Reinhart, director of the Kislak Real Estate Institute at Monmouth University (Steve Lubetkin Photo/

Subscriber-Access Only.

Editor’s Note: This story was originally reported for our content partner,

WEST LONG BRANCH, NJ—(SBN)—New Jersey commercial developers planning development along the Jersey Shore may be able to navigate administrative agencies more quickly, following a recent unanimous US Supreme Court decision in a dispute over what constitutes a navigable waterway, according to Peter Reinhart, director of the Kislak Real Estate Institute and the NJAR/Greenbaum/Ferguson Chair of Real Estate Policy at Monmouth University.

In the case, U.S. Army Corps of Engineers v. Hawkes Co., the Court decided that property owners trying to get a determination of whether there is a navigable waterway on their property did not have to gamble by either suing the Corps of Engineers or building and hoping the Corps wouldn’t sue them later, explains Reinhart, who is also “Of Counsel” to real estate development law firm Giordano Halleran & Ciesla.

Peter Reinhart, director of the Kislak Real Estate Institute at Monmouth University (Steve Lubetkin Photo/

Peter Reinhart, director of the Kislak Real Estate Institute at Monmouth University (Steve Lubetkin Photo/

“It’s kind of a classic case where the Army Corps of Engineers makes a determination of what constitutes a ‘navigable waterway,’ and if they are, then they are subject to Federal jurisdiction,” Reinhart tells exclusively. “The Hawkes company decided they weren’t going to make either of those choices and asked for a judicial determination about whether the Army Corps could do that.”

The Court ruled not on the merits of the determination, but the procedural aspect, Reinhart says. The decision permitted the company to treat the Corps’ decision as a “final determination” and they did not have to make the choice of suing or waiting to be sued, he says.

In New Jersey, developers who disagree with federal agency determinations can also take advantage of the decision to seek judicial determination and not wait for years of litigation to take place, Reinhart says.

What makes the legal situation “more hopeful” for property owners and developers is that the decision follows by several years an earlier decision in Koontz v. St. Johns River Management District, in which the Court overturned a Florida Supreme Court decision that upheld an administrative agency’s requirements that a property owner agree to conditions for development that the owner regarded as excessive in relation to the environmental harm the potential development would create, Reinhart explains.

“I don’t know if you can call two decisions a trend, but at least we see some sympathy for the risk level that property owners and developers have in trying to proceed at risk of having their decisions overturned later by an administrative agency,” he says. “The good news is there is a recognition that property owners have rights, and while the administrative agencies are presumed to be acting in the best interest of the public, they need to do so in an expeditious manner, and whatever decision they make, allow the property owner to move more quickly than they were prior to the decision in getting judicial review of their actions.”

You can hear the full interview with Peter Reinhart in the player below.


About the Author

Steve Lubetkin
Steve Lubetkin is the news director for Steve’s journalism background includes print and broadcast reporting for NJ news organizations. In May 2019, he began anchoring and reporting for the new weekly podcast, "The CRE News Hour," a news and features program focusing on the commercial real estate industry. From 2014 to 2019 he was New Jersey and Philadelphia editor for and filled in covering Chicago/Midwest and Atlanta. He has won numerous awards for his audio and video news reporting from the Garden State Journalists Association, and he has also been recognized for video by the New Jersey Chapter of the Society of Professional Journalists. He has produced audio podcasts on CRE topics for the NAR Commercial Division and the CCIM Institute. Steve has also served (from August 2017 to March 2018) as national broadcast news correspondent for, a news website focused on practical advice for senior executives in small- and medium-sized companies. Steve also reports on-camera and covers conferences for, a public policy news coverage website focused on New Jersey government and industry; and for clients of, a division of The Lubetkin Media Companies LLC. Steve has been the computer columnist for the Jewish Community Voice of Southern New Jersey, since 1996. Steve is co-author, with Toronto-based podcasting pioneer Donna Papacosta, of the book, The Business of Podcasting: How to Take Your Podcasting Passion from the Personal to the Professional. You can email Steve at