More on Dune Replenishment – Taking Private Property Without Just Compensation

Name: McKirdy & Riskin, P.A.
Address: 136 South Street, Morristown, NJ, 07850
Telephone: 973-539-8900

Home » Condemnation Law » More on Dune Replenishment – Taking Private Property Without Just Compensation

by: Joseph Grather

5 Feb 2013

Photo courtesy of wirednewyork.com

The Borough of Mantoloking is one of several beachfront municipalities that has asked owners of beach-front property to donate their private property to the municipality. A copy of the most recent form of dedication agreement (identified as an easement) is available on the Borough’s website here. The Borough is attempting to force property owners to turn-over their private property for the public good, without payment of compensation. The guilt trip being laid on the property owners is that the Borough will not be able to participate in an Army Corps of Engineers dune replenishment program without the easements in hand. The sign-off on the website – ” Thank you all for your patience with this process. We will do all that we can to make this project happen once we have the easements in hand. The very existence of our community depends on it.” This last statement underscores the public necessity of the easements, and underscores why the Constitution demands just compensation – the purpose of the taking is to benefit the general public at large. A private citizen cannot be forced to pay for a public improvement project by forced donation of private property. It’s no different from exacting a cash payment from only the beachfront property owners in order to benefit the entire community.

Toms River is another municipality that is seeking to exact private property without just compensation. As reported by the Toms River Patch, legal counsel for that municipality suggests that the town is without the lawful authority to rebuild the dunes without beachfront property owners’ donating their property. If dune replenishment is a public use, the municipality is reposed with the lawful authority from the ultimate source of law – the New Jersey Constitution. But, again, the municipality wants to lay the blame on the property owner.

Notably, the Army Corps Report referenced in the Mantoloking easement was issued 10 years ago! It is only now, post-Superstorm Sandy devastation, that they believe they have the political sway to engage in such unconstitutional conduct. Why didn’t they implement the program ten years ago? The cost to replenish the dunes is only a fraction of the cost of repairing the damage caused by Sandy.

I’m sure many of our readers do not own property along the shore-line or live on the beachfront (yours truly does not). Yet, if we permit government to take that first step down the slippery slope of unconstitutional conduct, we have only ourselves to blame when we’re looking down the wrong end of the barrel of some other heavy-handed government conduct.

And, in the end, we, the taxpayers of the United States of America, have already paid the bill to restore the beaches the tune of $51 billion dollars ($4 billion of which has been allocated to the Army Corps to rebuild the beaches). Notably, over the past 50 years, the total expenditure of beach replenishment in New Jersey has been about $1 billion. Let’s insist that government spend that money wisely and do the rebuilding job right the first time. Why should the beachfront owners have to pay for this benefit twice?

For more background on these issues, check out our earlier blog posts:

NJ Beach Replenishment Saga Continues, This Time in Sea Bright

NJ Beach Replenishment Town Seeks End Around in Federal Court

Harvey Cedars Complaining About Payments to Property Owners For Beachfront Takings