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The Dune Abides

In State of New Jersey, Department of Environmental Protection v. City of Margate, Docket No. ATL-L-2295-15 (Law Div.), the Atlantic County Superior Court ruled, among other things, that the municipal defendant (“Margate”) made a sufficient showing of arbitrariness to warrant a hearing on the issue of whether the condemnation action brought by the plaintiff, the State of New Jersey (the “State”), constitutes a manifest abuse of its eminent domain power. 

The State is attempting to revive a storm damage and shore protection project that lay dormant for over a decade.  The project would entail the construction of a system of protective sand dunes for 127 miles, the length of the Jersey coastline.  In response to the devastation caused by Hurricane Sandy, the Federal government enacted the Disaster Relief Appropriations Act of 2013, P.L. No. 113-2, which appropriated billions of dollars to the U.S. Army Corps of Engineers for shore protection projects in New Jersey and other vulnerable states.  Based on the availability of these federal funds, the State’s stagnant shore protection project became a viable option.

In order to implement its sand dune project, the State needed to obtain around 2,850 easements, the vast majority of which were voluntarily given to the State.  However, the State faced opposition from Margate in acquiring 87 oceanfront parcels and subsequently sought to take the property through its eminent domain power.  Margate, which is located near Atlantic City, argued that the loss of a portion of its usable beaches would create substantial economic, social, and safety concerns, and that improving its existing system of bulkheads would serve as a better alternative than the State’s proposed dune project.

Superior Court Judge Julio Mendez was satisfied that Margate raised a sufficient factual issue as to whether the alleged flaws of the State’s dune project, coupled with Margate’s alternative bulkhead fortification  proposal, constitute an arbitrary State action or a “manifest abuse of discretion.”  In deciding that a hearing was necessary, the Court found particularly persuasive the affidavits presented by two of Margate’s experts, both of whom opined that the analysis supporting the State’s dune project was flawed.  The court-ordered hearing, which affords the parties an opportunity to introduce additional evidence on the issue of arbitrariness, is scheduled for February 3, 2016.

Despite the substantial evidentiary burden that Margate faces at the hearing, its opposition to the State’s dune project may serve as a blueprint for other municipalities seeking to resist the State’s seemingly absolute power of eminent domain.  Municipalities may follow Margate’s lead by challenging the supporting evidence of other eminent domain plans and proposing a more beneficial alternative that achieves the same result without condemning property.

Lieberman & Blecher’s attorneys have extensive experience in handling eminent domain cases and have worked for many years to ensure the best results for our clients.

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