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Post-Sandy Dune Construction: Not So Fast

Did Superstorm Sandy make it safe for the State to deride waterfront property owners for refusing to allow the State to erect two-story beach dunes on their waterfront property? The State may think that such extreme protective measures may be more politically palpable because, after living through Sandy and witnessing her destruction, New Jerseyans better understand the implications of powerful storms, and the possible flood and wind damage that may accompany such weather events.

If only it were that easy. The sanctity of waterfront property and public beach access have long been controversial in New Jersey (read our prior post about the recent changes to beach access laws ). There is no doubt that dunes will have to be strengthened or erected in certain places in order to protect vulnerable coastal and inland properties. This is beyond legitimate dispute. We simply cannot go through that level of storm related destruction again. However, it is equally true that the government cannot legally take someone's property and confiscate it for the purpose of erecting a public dune protection system. The state cannot construct this or any feature on a private person's property without paying just compensation for that property, whether the property happens to be located on the coast or anywhere else.

Let's be clear; the government has the complete right to confiscate oceanfront property for a public purpose, but it must pay full, fair compensation under long standing laws predicated on both the federal and New Jersey State Constitutions. This is so no matter how lofty the public purpose might be. The building of dunes is essential, but the protection of private property rights is just as important. Legally, the necessity of protecting public property from flooding and protecting private property from confiscation are of equal stature.

Ownership of oceanfront property has always been treated differently than ownership of other property. Under the public trust doctrine, the need to provide some public access to coastal resources, sometimes even for free, has been implied in the title conveyed to the rightful owners. A series of beach access cases have enunciated this body of law, as have some DEP regulations. But access has never meant permanent, unmovable occupation, as would be the case with the construction of dunes. In fact, a permanent dune would physically block access, meaning that the State or federal government may not rely on the public trust doctrine to essentially take private property to build a dune system.

In conclusion, the government will no doubt erect important beach protection systems such as dunes. This may in fact be necessary to prevent future damage from storms like Sandy. However, it also appears that the state and federal governments will have to pay full market value for the taken property that is needed to get this important job done.

To learn more about “takings” and the environmental attorneys at Lieberman & Blecher who concentrate their practice in this area of the law, visit these resources:

Regulatory takings

Environmental Permitting, Compliance and Enforcement

Environmental Litigation

 

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