New Jersey Struggles With What To Do with the Dunes

Sand dunes have long protected New Jersey’s shorelines. However, many of them were swept out to sea when Superstorm Sandy struck just over six months ago. Now, homeowners, lawmakers, and local municipalities are struggling to work out what to do next.

Even prior to the storm, dunes have been a contentious topic in New Jersey. While the state has spent millions on dune replenishment projects, homeowners of oceanfront property due not always want their views and beach access disturbed.

However, waterfront homeowners do have legal recourse. Under New Jersey’s eminent domain laws, owners of condemned property are entitled to “compensation for the property, and damages, if any, to any remaining property.” In a partial taking, the owner “is entitled to be compensated not only for the value of the land taken but also for any diminution in the value of [the] remaining land which may be attributable to the taking.”

For New Jersey municipalities, eminent domain takings can be costly. In 2012, a Jersey appellate court upheld a $375,000 judgment in favor of oceanfront homeowners who claimed that newly constructed sand dunes diminished the value of their property. The court rejected Harvey Cedars’ contention that the couple should only be compensated $300 because they received a “special benefit” from the dune, namely storm protection.

Under NJ eminent domain law, the value of special benefits may be subtracted from the compensation owed, while general benefits may not. General benefits arise from the fulfillment of the public object that justified the taking. Meanwhile, special benefits arise from the peculiar relation of the land in question to the public improvement.

To protect municipalities from having to make sizable payments to the thousands of homeowners impacted by dune replenishment in the wake of Superstorm Sandy, the Senate and Assembly are taking legislative action. The proposed bills (S-2599 and A-3889) would amend the Eminent Domain Act of 1971 to provide that just compensation for a portion of beachfront property condemned for the purpose of acquiring an easement for dune construction or beach replenishment must include consideration of the increase in value to the entire property due to the added safety and property protection provided by the project.   

Interestingly, the case that prompted the legislation, Borough of Harvey Cedars v. Harvey Karan and Phyllis Karan, is currently pending before the New Jersey Supreme Court, though no hearing date has been set.

Donald Scarinci is a managing partner at Lyndhurst, N.J. based law firm Scarinci Hollenbeck.  He is also the editor of the Constitutional Law Reporter and Government and Law blogs.

 

New Jersey Struggles With What To Do with the Dunes