Wednesday, April 14, 2010

Easements & Beach Renourishment on the Jersey Shore

You wouldn't know it from watching TV over the last year, but the Jersey Shore isn't just about Snookie and "The Situation" and their boozy boardwalk-and-nightclub lifestyle as displayed on the appalling MTV reality show.  Long Beach Island is an 18-mile barrier island that's mostly low-density residental development.  (I even lived on LBI for a short time growing up, and I turned out mostly OK).  The focus there is on the beach, and like many places at the water's edge, there is a land use controversy over property rights and the eroding coastline:

LONG BEACH TOWNSHIP, N.J. - The line in the sand is drawn in this New Jersey shore community, where township officials say they'll use "peer pressure" to pit neighbor against neighbor in an effort to persuade 230 oceanfront property owners to let a beach restoration project proceed.

The holdouts are refusing to sign on because they don't want their views of the ocean blocked, and because they fear the government might build a boardwalk or toilets next to their homes. So the township says it hopes neighbors will coax, shame or force holdouts to sign, and is even encouraging them to picket outside the homes of those who won't give in.

"Long Beach Township is talking about anarchy here," said Kenneth Porro, an attorney for the holdouts.

We're all familiar with land use contests over beachfront property, from Lucas to Stop the Beach Renourishment (remember, hypothetical hot dog stands and port-a-potties were much discussed in oral argument last December at the US Supreme Court!) and other cases.  But the more typical framework pits the individual landowners against the power of the state.  Here, according to the AP story, the government is intentionally pitting neighbor against neighbor.

"We should all be in this together," [one landowner] said. "I've spoken to some very reasonable people who feel the government is taking away their property rights. Nothing could be further from the truth. It's just an easement to put more sand there."

Well, we'll have to see the terms of the proposed easement, but those recalcitrant neighbors are generally correct--when you give someone an easement, you have certainly given away some of your property rights.  And many first-year property students can tell you that in New Jersey, the public has a right of access over the "dry sand" though application of the public trust doctrine (remember Matthews v. Bay Head Improvement Ass'n?).  The question is whether you need to do that not just for the collective good but to save your house from falling into the sea.  Of course there is one other solution not yet on the table:

Long Beach Township officials say eminent domain and its potential costs are a last resort.

Suffice it to say that beachfront property within 100 miles of both NYC and Philadelphia isn't cheap, even if you do have to share the Parkway with Snookie and the gang.  So condemning an easement through eminent domain might prove well beyond the township's resources.  The holdouts may well be either unreasonable or even acting against their own self-interest.  But I do think that the officials should proceed with caution on the campaign to encourage people to call, picket, and otherwise shame their holdout neighbors.  We all know how personal and emotional property can be, and how land use controversies can do lasting damage to the social fabric of a community.  Intentionally pitting neighbor against neighbor over land can have significant long-term secondary effects.

Matt Festa

http://lawprofessors.typepad.com/land_use/2010/04/easements-beach-renourishment-on-the-jersey-shore.html

Beaches, Coastal Regulation, Eminent Domain, Local Government, New York, NIMBY, Takings | Permalink

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