In the Wake of a Superstorm the Debate Continues – Who Should Pay for the Dunes?

Name: McKirdy & Riskin, P.A.
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Home » Condemnation Law » In the Wake of a Superstorm the Debate Continues – Who Should Pay for the Dunes?

by: Joseph Grather

20 Dec 2012

The debate continues – Can government force private property owners to donate their private property for strengthening a dune system for the benefit the general public when the next superstorm hits? Not in the U. S. of A.

A recent National Public Radio program discussed the topic and interviewed property owners and government officials. Governor Christie appeared to blame the property owners: “We had municipalities who were offered this assistance and residents refused to sign the easement because they didn’t want it to block their view. Well, they don’t have to worry about that now. They got no house.”

But despite this attempt to lay blame, a property owners’ refusal to consent cannot stop a bona fide public use, such as the dune project designed by the Army Corps of Engineers.

Essentially, the government’s position is two-fold. First, it suggests that dune replenishment projects were delayed because some beachfront owners did not consent to the government’s effort to create or increase dunes on those owners’ properties. But that position is without merit, since the government has always had the right to take those property interests by eminent domain. New Jersey is a “quick take” State and the government could obtain ownership and possession of the property it needs on an accelerated basis. So any owner’s refusal has no legal bearing on whether the dunes could have been created before Sandy.

Second, the government contends that it would have been cost prohibitive to strengthen the dune system without beach-front property owners donating their private property for the public good. (Sounds more communistic than democratic). However, before the storm, the estimated cost to strengthen the dunes was $118 million. After the storm, the estimated cost of the damage:

Insured Losses: $10 – 20 Billion
Total Economic Damage: $30 – 50 Billion

Certainly, $118,000,000 is less than $50,000,000,000.

According to the Army Corps and the State, at least some of the damage would have been avoided had the dunes been strengthened (and not all of the estimated damages arise from damages to beach-front properties). The question is – how can government not do everything within its power to prevent the disaster from happening again?

In the end requiring owners to donate their property would be contrary to the New Jersey Constitution and the United States Constitution: “Private property shall not be taken for public use without just compensation.” (NJ Const. Art. I, Par. 20).

Cut down, we shall grow back stronger.

Imagine, for a moment, that the government took part of someone’s private property to create a public road. In that situation, would anyone disagree that the affected property owner would be entitled to just compensation for the taking of a part of his or her property? In this dune replenishment saga, the same issues exist – the government is building the dunes on private property, taking part of the private property, to benefit all property owners. Why should the private property owners NOT be entitled to just compensation? The public benefits as a whole, so the public should be required to bear the cost, not just the affected owners.

This one promises to stick around for a while, so we’ll be monitoring it as it unfolds.