Thursday, November 29, 2012
As noted here on this blog several months ago, the New Jersey Supreme Court granted certiorari in the important takings dispute of Borough of Harvey Cedars v. Karan. It appears that Hurricane Sandy may prove to play a role in the case’s resolution.
The decision on appeal upheld a $375,000 takings award to an oceanfront homeowner who had refused to convey an easement to allow beach and dune replenishment at the Borough’s offered condemnation price of $300. A jury had fashioned this award based on the claim that the replenishment increased the height of the dune and thereby reduced the value of the claimant’s property by impairing the claimant's view of the water.
In a simultaneously ironic and eerily predictable twist, the Asbury Park Press reported this week that the replenished dune appears to have saved the claimant’s $1.7 million home from Hurricane Sandy’s wrath. Dunes do not repel storm surge but rather generally serve as sacrificial lambs. Here, the surge from Sandy washed away much of the replenished dune seaward of the claimant's home, but left the home itself intact.
That the Borough’s replenished dunes provided the shore protection experts had predicted has only served to increase the tensions surrounding this controversial property rights case. According to the Press, the Borough’s Mayor, Jonathan Oldham, stated that “50 percent of the dune is gone in the northern part of the township, while in the southern section of the borough there is only 15 percent left. All of this fighting about the easements is short-sighted, when you realize what could have happened.” Yet attorney Kenneth Porro, who represents several oceanfront landowners on Long Beach Island, is reported as asserting, “The oceanfront property owners are not villains. The real villains here are the government officials who blatantly disregard our inherent constitutional and civil rights and are attempting to use the devastation of the storm to cover up their unconstitutional acts.”
The case presents an important opportunity for the New Jersey Supreme Court to consider the range of direct and indirect—and short and long term—benefits that the government’s use of condemned land imparts on condemnees as an offset to condemnation awards. The Court has not yet scheduled oral argument. Stay tuned to the Environmental Law Prof Blog for updates on this important takings case.