NJDEP required to use eminent domain in beachfront easements

In a unanimous per curiam opinion issued yesterday, July 15, 2008, the Appellate Division affirmed a lower court decision by Chancery Court Judge Vincent J. Grasso denying an injunction to the New Jersey Department of Environmental Protection (NJDEP) to compel beach front property owners on Long Beach Island to grant easements for beachfront replenishment. NJDEP requested easements from the property owners in order to construct a 21-foot sand dune on the affected properties along the oceanfront. The court held that NJDEP was improperly relying on N.J.S.A. 12:6A-1 which deals with access for emergent situations.

In this case, Milgram v. Ginaldi, NJDEP sought to acquire a permanent easement to construct and maintain the sand dunes. In order to do this, the court ruled, NJDEP must comply with the Eminent Domain Act, N.J.S.A. 20:3-1, et seq. and its provisions regarding acquisitions of land for a public purpose. Specifically, N.J.S.A. 20-:3-6 requires that

Whenever any condemnor shall have determined to acquire property pursuant to law, including public property already devoted to public purpose, but cannot acquire title thereto or possession thereof by agreement with a prospective condemnee, whether by reason of disagreement concerning the compensation to be paid or for any other cause, the condemnation of such property and the compensation to be paid therefor, and to whom payable, and all matters incidental thereto and arising therefrom shall be governed, ascertained and paid by and in the manner provided by this act.

The court concludes:

...the trial court correctly dismissed NJDEP's cause of action, because, under these circumstances, a demand for a perpetual easement from these defendants amounted to a taking of private property without just compensation. To accomplish this apparently legitimate public purpose, NJDEP was required to comply with the procedural requirements of the Eminent Domain Act.

This case is precedent for other municipalities on Long Beach Island seeking to acquire similar easements. The township of Harvey Cedars, for example, is about to engage in such an effort, and they clearly will have to comply with the Eminent Domain Act of 1971 and all of its requirements regarding land acquisitions.  Download the opinion in Milgrim v. Ginaldi.

Also see today's Star-Ledger article, "Court sides with residents in beach battle."