Hurricane Sandy And The Dune Replenishment Dilemna

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by Joseph Grather / New Jersey Condemnation Law

Along with the destruction of thousands of homes and the devastation of the State’s power-grid (yours truly remains without power 12 days later) Hurricane Sandy’s super-storm surge has brought to the collective conscience the long running debate about who should pay for a public improvement project.

Those following our blog will recall that the Army Corps of Engineers designed a beach-dune system that would protect New Jersey’s coastline property from tidal surges, like Sandy. The good news – the Army Corps’ plan worked! (See article by Seth Augenstein surveying damaged areas that were  not protected by dunes.)

The bad news – the Army Corp plan was not implemented along the entire coastline.

Those on the side of government, particularly on Long Beach Island, have suggested that the program was not implemented because property owners refused consent to permit erection of a twenty-two foot high dune on their property.   Yet, government does not need a property owner’s consent to implement a public project.  Government has the power of eminent domain to prevent the exact situation where property owners refuse to donate their private property to the public good.  New Jersey is a “quick take” State, which means that the government agency using eminent domain powers is authorized to “take” the property in question at the earliest stages of the proceedings, even if it takes months or years after the taking occurs for the affected property owners to receive “just compensation” for the taking.

The only relevant limitation on the government’s authority to implement the Army Corps’ dune program is the payment of “just compensation” as mandated by the New Jersey Constitution.  In New Jersey, a jury decides how much is just. Not the government.  Not the property owner.

After the storm, government is foisting the blame on the property owners because of their refusal to consent, but again, consent is not an issue when implementing a public improvement project.  If the government wished or wishes to use eminent domain to acquire private property rights and to implement dune replenishment projects, it has the power to do so, without any legitimate worries about delay.

Our thoughts and prayers go out to the property owners whose homes and personal property were taken by Hurricane Sandy.  So long as it is utilized properly, there is no doubt that government has the awesome power to take private property along the ocean-front to protect those further inland.  But, even in the aftermath of this Statewide disaster we cannot forget “that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.” Pennsylvania Coal v. Mahon (Holmes, J.).

We’ll keep you posted – stay safe and warm.

More background on the debate:

Originally published by New Jersey Condemnation Law; republished with permission

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