Tagged: just compensation

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Partial Taking in the Dunes of New Jersey: The Harvey Cedars Case

This past July, the New Jersey Supreme Court handed down Borough of Harvey Cedars v. Karan, 70 A.3d 524 (2013). In one sense this is a technical case about the rules of just compensation for a partial taking. The New Jersey Supreme Court clarified the distinction between “special benefits,” which can be offset against the compensation owed for a partial taking, and “general benefits,” which cannot. Where a dune restoration project would provide protection to a home in immediate proximity to the shore, if the value of that protection can be determined, it should be deducted from the compensation owed, even though the dune provides flood protection of the same kind—but in significantly less degree–to rows of houses further back from the ocean. The New Jersey Supreme Court determined that an evidentiary ruling excluding evidence of the benefit was erroneous as a matter of law, and remanded for a new trial. All five Justices participating in the opinion agreed.

The case is of more general interest because the public project involved concerned construction of a dune barrier on private property along New Jersey’s barrier islands. It’s a disaster law and climate change case. Dune projects have been underway here for some time–this one began in 2008–with the United States Corps of Engineers doing the heavy lifting, state and municipalities cooperating and chipping in a smallish part of the cost. All of Long Beach Island is part of a big old beach and dune project. And dune projects have gained special salience after Superstorm Sandy.

In the Borough of Harvey Cedars, on Long Beach Island, dune construction required the cooperation of all 82 beachfront property owners. Sixteen of them declined, forcing the municipality to begin condemnation proceedings for a strip of each recalcitrant property owner’s land. In this particular case, the Karans refuse to grant a dune easement over about a quarter of their property; the easement included a dune 22 feet high, replacing one 16 feet high. A right of public access came along with the new dune as well. So the Karans wound up with a view of other folks’ beach recreation activities on the higher dune, not the water view they had previously enjoyed. Evidence supporting the argument that the Karans’ $1.9 million home would benefit from the flood protection afforded by the dune to the tune of several hundred thousand dollars was excluded from a jury by the trial court, on the theory that the entire community also benefitted, and that therefore the flood protection was a “general benefit” which could not legally be offset against the compensation owed the Karans. The Karan’s expert had testified that they should receive $500,000 from Harvey Cedars. The Harvey Cedars expert (from the Corps of Engineers) testified that the proper amount of compensation was $300. But he couldn’t point to evidence of benefit from flood protection because it had been excluded. The jury returned a compensation award of $375,000, principally for loss of view. You can do the math and see what this does to the possibility of any dune project. Holdouts galore. No project. Read More

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Shame On You! Hand Over That Dune Easement!

This blog post is the second in my series of four this month on coastal land management and disaster. It will be just a bit shorter than the last, and focuses on the efforts of one among several Jersey Shore beach communities, Long Beach Township, in Ocean County, to use shame as an incentive and punishment for beachfront property owners who have refused to negotiate easements necessary for a protective beach and dune restoration project.

First, some background. New Jersey has something like 127 miles of Atlantic Ocean shoreline – barrier islands, marshes, and inlets. All of its length is developed, with few exceptions. This practice of barrier island development goes well back into the 19th century. Long Branch, in Monmouth County (not to be confused with Long Beach), called itself the “home of Presidents”. It became accessible by rail early on, and seven nineteenth-century presidents summered there. One, James Garfield, died there, after he was shot and taken there for what turned out to be some very bad medical treatment.

Apart from the results of a few episodic impulses to preserve (among them Island Beach State Park and the Sandy Hook element of the Gateway National Recreation Area), all the rest of the buildable New Jersey shore is built. And how! There are the more exclusive enclaves, and also towns with beaches that are narrow and crowded and commercial. In most places you have to pay to get onto the beach. To the chagrin of many a first-year property student, there’s a whole case law and scholarly literature about beach access below the mean high tide line and the public trust doctrine, centered on a series of New Jersey cases. More exclusive towns still try various stratagems to exclude outsiders (What, no all day parking? No changing facilities?). Other towns just let outsiders in as daily visitors or weekly renters and take their money.

For protection against storms, much of the Jersey Shore has been reinforced with hard structures such as sea-walls and groins, which project out into the ocean and supposedly prevent sand from migrating down current. Coastal geologists generally consider what has happened in New Jersey a very bad way to manage beaches on barrier islands. It just fosters erosion and imperils structures that shouldn’t have been built there anyway. Beaches gotta move. See, e.g., Wallace Kaufman & Orrin H. Pilkey, Jr., The Beaches Are Moving: The Drowning of America’s Coastline. Read More