Eminent domain at the mean high water line
The New Jersey Supreme Court has granted certification to a second eminent domain case for the 2009-2010 term. The case is City of Long Branch v. Jui Yung Liu (A-0237-06T2). At the heart of this case is a question similar to those that are under consideration by the United States Supreme Court in the Florida case, Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, Docket No. 08-1151. See previous blog post, SCOTUS grants cert in beachfront renourishment case (June 22, 2009).
According to Peter Wegener of Bathgate Wegner, who represents the property owner, the New Jersey Supreme Court has certified two questions on two of the points decided adverse to Liu by the court below:
POINT I
WHETHER THE JURY'S DETERMINATION TO MAKE NO AWARD FOR THE ENHANCEMENT VALUE REPRESENTED BY THE FURNITURE, FIXTURES AND EQUIPMENT FUNCTIONALLY RELATED TO THE BUSINESS WAS AGAINST THE WEIGHT OF THE EVIDENCE AND WAS A MISCARRIAGE OF JUSTICE?
1. THE PROBLEM OF AUTHENTICATION UNDER N.J.R.E. 901
2. THE VIDEO SHOULD HAVE BEEN EXCLUDED UNDER RULE 403
3. THE ENTIRE LINE OF TESTIMONY RELATING TO RELOCATION SHOULD HAVE BEEN EXCLUDED FROM THE CASE [Slip opinion, at p.3)
POINT IV
WHETHER THE MOTION JUDGE ERRED IN FAILING TO REQUIRE THAT THE CITY'S VALUATION OF THE PROPERTY INCLUDE PROPERTY THAT CAME INTO EXISTENCE THROUGH THE BEACH REPLENISHMENT EFFORTS OF THE U.S. ARMY CORPS OF ENGINEERS?
1. The Lius' Property Extends to Mean High Water
2. The High Water Mark Delineates Ownership of Lands Along the Atlantic Ocean
4 [sic]. Artificial Changes to the Shoreline Inure to the Benefit of the
Littoral Owner Provided the Changes Were Not in Aid of Navigation and Were Not Implemented by the Littoral Owner Himself
5 [sic]. The Motion Judge Incorrectly Interpreted The Law To Determine That The State of New Jersey Owned The Artificially Created Property [Slip opinion, at p.4]
The first point raised on appeal is the basis for one of the issues granted certification by the New Jersey Supreme Court in the Liu case and concerns the valuation of the machinery and equipment in the restaurant portion of the property. At issue is the propriety of allowing the city to introduce a video at the jury trial that was filmed after the date of taking and after the property was vacated as evidence of the value of the furniture, fixtures, and equipment. At the time the video was recorded, the city owned the property and it was in a poor condition that was highly prejudicial to the property owner.
The other issue concerns the title to the enhanced beachfront area after the Army Corp of Engineers replenished the beach in 1998. The question of beach replenishment and title is clearly one of national interest. Under New Jersey law, Liu owned the property to the mean high water line, and thus the valuation should have included the beach replenishment, which was an Army Corp of Engineer project that preceded and was not part of the redevelopment efforts of the city of Long Branch. The U.S. Supreme Court’s resolution of this issue could influence what the New Jersey Supreme Court decides in the Liu case.
On the issue of beach replenishment, the New Jersey Appellate court wrote:
When plaintiff filed its complaint, it described the property to be taken as having a depth of 125 feet to the high water mark of the Atlantic Ocean. Defendants filed a motion to amend the complaint to enlarge the description of defendants' property to include an additional 93,393 square feet of beach upland, created as a result of a beach replenishment project undertaken by the Army Corps of Engineers and funded by the federal government, the State of New Jersey and the City of Long Branch. At the completion of this project, the mean high watermark of the Atlantic Ocean had moved 256 feet eastward from the point at which it had existed previously. The trial court rejected defendants' pretrial motion to include this extra land within the property being taken. City of Long Branch v. Liu, 363 N.J. Super. 411 (Law Div. 2003). Defendants argue on appeal this was wrong.
We do not find it necessary in order to resolve this issue that we delve into the distinctions drawn by the common law with respect to boundary lines between accretion (a gradual, imperceptible buildup of land caused by natural forces), Hous. Auth. of Atlantic City v. State, 193 N.J. Super. 176, 179 (App. Div. 1984), and avulsion (a sudden removal or addition to land as a result of either natural or manmade forces), Garrett v. State, 118 N.J. Super. 594, 601 (Ch. Div. 1972).
It is undisputed that the enhanced beachland to which defendants seek to lay claim and for which they seek compensation was the result of a public agency spending public funds. We can perceive no policy justification which would permit defendants to reap such a private monetary benefit from those public efforts. (Slip opinion, at p. 25- 26)
One of the troubling results of the New Jersey Appellate Division’s decision, which was not discussed in the opinion, is redevelopment mechanism itself. Long Branch condemned Liu’s property for its redevelopment project. Long Branch has a contract with Applied Management, its designated redeveloper, whereby Long Branch conveyed the interests acquired from Liu to the redeveloper. This interest included all of the land formerly owned by Liu up to the mean high water line. The mean high water line is the demarcation line for the ownership of riparian rights by the state of New Jersey. By denying Liu the benefit of ownership of the additional property up to the mean high water line, the trial court and the Appellate court have denied Liu the full measure of just compensation and given an unintended benefit to the redeveloper. This issue should be clarified by the New Jersey Supreme Court.
See previous blog post, Eminent Domain Valuation: Payment in Liu (March 17, 2006), discussing the condemnation jury trial.
Download the New Jersey Appellate Court opinion in City of Long Branch v. Liu (May 20, 2009).