NJ beachfront owners hold out for eminent domain
One year after Hurricane Sandy made landfall in New Jersey on October 29, 2012, demands by public officials for the voluntary surrender of property are strident. Local mayors and the governor seek the conveyance of beachfront easements without just compensation. Property owners who are unwilling to surrender their rights are called selfish, mean-spirited, and worse on television, radio, online, and in print. Most “holdouts,” the owners of beachfront properties, residences, and local businesses, want the government to exercise its power of eminent domain. They want the guarantee of justice provided by the Constitution.
The United States Constitution, Article 5 states, “No person shall be...deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” The New Jersey Constitution, Article 1, Section 20 states, “Private property shall not be taken for public use without just compensation. Individuals or private corporations shall not be authorized to take private property for public use without just compensation first made to the owners.” The process for awarding just compensation is set out in N.J.S.A. 20:3-1, et. seq. The statute requires the government to appraise the property to be taken and offer the owner fair market value plus any damages to the remaining parcel. The statute prescribes that any land taken be utilized for a public purpose.
The assurance of just compensation is crucial because private land owners in shore towns will forfeit all rights under perpetual easements. The individuals will retain title to the portion of the property taken subject to the easement. The land owners remain responsible for the land and must meet the typical obligations of landownership, including payment of property taxes, but they will have been deprived of virtually all beneficial use of the taken portion of their land.
The guarantee that the land will be used for a public purpose is equally significant. Land owners fear that local leaders will use their land to build boardwalks, public access parking, or public restrooms to attract more beachgoers to the New Jersey Shore where tourism is a $40 billion industry. Provision of the exact terms of the taking pursuant to the statute will prevent any misinterpretation of the rights being acquired.
The present beach replenishment project to be overseen by the Army Corps of Engineers is fully funded by the Federal and State Government. The state is picking up the tab for $8 million, while the federal government is paying the rest. U.S. Rep. Frank Pallone (D-Long Branch) announced the awarding of the final contract for the $18.3 million beach replenishment project spanning the shore from Asbury Park to Avon-by-the-Sea in September. The contract is the last of four awarded to cover the stretch between Sea Bright and Manasquan. Contractors will build a continuous 48-foot high wall by driving steel sheets 32-feet into the ground. Approximately 16 feet of steel will rise above the ground. As the steel sheets will be embedded in makeshift dunes about 10 feet high, the municipalities will be responsible for covering the estimated 6 feet of steel that will protrude. Project experts estimate that replenishment projects will have to be undertaken every three years, with a portion of the cost covered by the municipalities. It is unclear how the state or local municipalities will fund concealment of the steel revetment when the dunes erode again.
There is no indication of any forward thinking on the part of local leaders in this regard or about the consequences of tidal flooding. Stewart Farrell, director of New Jersey’s Richard Stockton College Coastal Research Center, attributes half of the damage in Long Beach Island caused by Hurricane Sandy to tidal flooding. The bay side of the island is only protected by a bulk head that is four feet high. It was easily overcome by Hurricane Sandy’s 12 foot storm surge. Yet, residents of the island still await information about protection from storm surges along the bay side.
According to the article “N.J. bureaucrats are stonewalling Hurricane Sandy victims: Editorial” published in the Star Ledger, Governor Christie refuses to address these issues and others vital to the livelihood of the shore. The article states that he is stonewalling Hurricane Sandy victims. Meanwhile, a Newsweek article describes the governor's masterful sarcastic performance where easement “hold-outs” are the punchline:
"Let me just tell you how I feel about this. Some of you may like it; some of you may not. But here’s the bottom line. There are going to be homeowners up and down the shore who again don’t want to sign these easements and have these dunes built. Who don’t want the dunes to block their view.” Someone in the audience lets out a decidedly unsympathetic “awww.” That seems to be the governor’s cue. “We had people lose their lives in the storm!” he shouts. “We had people lose everything they owned in this storm—to protect your view.” He stares down at his mike for a second, then looks up to deliver the punchline.
“Sorry.”
The crowd roars. It’s a masterful performance – a concerto of sarcasm and umbrage – and Christie concludes with a flourish. “ These people need to know I’m going to do everything I can do,” he says, “to make sure these dunes get built.”
The governor’s words are full of disdain. As recently as September, he remarked, “We can no longer be held back from completing these critical projects by a small number of owners who are selfishly concerned about their view while putting large swaths of homes and businesses around them at risk.”
Mayor Joseph H. Mancini of Long Beach Township has a similar attitude toward those who refuse to voluntarily forfeit their land. “At the town meeting, I told people to contact the people who didn’t sign easements and ask them to come get their sand. Their sand is in your living room,” said Mancini.
Governor Christie, Mayor Mancini, and Mayor Jonathan S. Oldham of Harvey Cedars, among others, seek to circumvent the relevant Constitutional provisions by citing to the time-sensitive nature of the beach replenishment and by preying upon residents’ perception of the prospective and, yet, imminent danger should another storm occur. The consequential shaming of “hold outs” is based upon the dissemination of information that is purposefully and severely limited. Elected officials failed to publicize the fact that commencement of the condemnation process through a few simple steps would provide the government with the right to immediate and exclusive possession of the property in question. The government may then move forward with the beach replenishment project even though just compensation is yet to be determined.
Yet, in lieu of initiating a process that may have already given the government possession of the properties was it commenced in a timely manner, community leaders continue to paint a picture of recalcitrant residents subjecting an entire community to unnecessary risks and dangers in the interest of additional financial gain. The effect of the lies and bullying, and the strain on the community is evidenced by the recent settlement in the matter of Borough of Harvey Cedars v. Karan. In its July 8, 2013 opinion, the Supreme Court of New Jersey made clear that the Karans were entitled to “just compensation” for the taking of a portion of their property for the beach replenishment. It held that a property’s fair market value should be used as a benchmark in computing just compensation in a partial takings case. The Court expounded that non-speculative, reasonably calculable benefits that increase the property’s value at the time of the taking should be considered in determining just compensation, regardless of whether those benefits are enjoyed to a lesser or greater degree by others in the community. A new trial was required because the Borough was prohibited from presenting evidence of such benefits. Despite the court’s holding, the Karans quickly surrendered to political, community, and media pressure and accepted a reported settlement of one dollar ($1.00) as compensation for the taking of 3,400 square feet of land, approximately one-fourth of the size of their oceanfront lot.
Many see the Karans’ settlement as political fodder for the governor’s campaign to take action against easement “hold outs” without employment of the power of eminent domain. Harvey Cedars Mayor Jonathan Oldham said the decision to settle for one dollar sends a message to easement “holdouts” that shore protection is of utmost importance. “This is good for the rest of the island and it’s good for New Jersey and it’s good for Harvey Cedars as well,” Oldham said. “It certainly verifies that our position was right all along.”
But the recent entry of Executive Order No. 140 and the adoption of ordinances to commence condemnation proceedings in Mantoloking and Toms River are indicative of the need for appraisals, offers, property descriptions, maps with metes and bounds, and construction plans to be provided to the citizens whose properties are being taken. Toms River Council President George Wittmann called the ordinance, which was unanimously approved, “the most important ordinance…that we’re going to pass this year.” By the time properties are appraised, monetary offers are sent to the owners, and negotiations take place, it will likely be January before the towns obtain the easements. Either by negotiation or condemnation, residents should anticipate a start date for the project in the first quarter of 2014.
Edvie M. Castro contributed to this blog post.