Search Site
Menu

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 & Sinkevich who concentrate their practice in this area of the law, visit these resources:

Regulatory takings

Environmental Permitting, Compliance and Enforcement

Environmental Litigation

 

Leave a Reply

Your email address will not be published. Required fields are marked *

Our Attorneys

Recent Twitter Posts

  • DEP urged to set tough limit on 1,4-dioxane in drinking water. https://t.co/UESauZowsJ
    1 month ago
  • Beach access issue returns in Cape May County beach community, near the location of a similar issue that was litiga… https://t.co/tWOMcfTqwM
    2 months ago
  • Another effort to make the Delaware Water Gap a national park is underway. https://t.co/C00NZ43nZU
    2 months ago
  • New Jersey seeks designation of Lower Hackensack River as a federal Superfund site. https://t.co/czOI3hDNb2
    2 months ago

Recent Blog Posts

Environmental Hearing Requests by Third Parties: An Update

In 2010 this author contributed an article discussing the difficulty that anyone other than an applicant had in administratively contesting a permit. Stuart J. Lieberman and Shari M. Blecher, “It’s
Read More
Environmental Hearing Requests by Third Parties: An Update

Hoboken cannot block residential development with new zoning ordinances, Supreme Court holds

In Shipyard Assocs., LP v. City of Hoboken, 242 N.J. 23 (2020), the Supreme Court held that the City of Hoboken could not block a waterfront residential development by enacting
Read More
Hoboken cannot block residential development with new zoning ordinances, Supreme Court holds

Long standing land use attorney Michele Donato joins Princeton’s Lieberman Blecher & Sinkevich as “of counsel”

The law firm of Lieberman, Blecher & Sinkevich is  proud to announce that Michele R. Donato, Esq. has become Of Counsel with their firm. Ms. Donato has specialized in land use,
Read More
Long standing land use attorney Michele Donato joins Princeton’s Lieberman Blecher & Sinkevich as “of counsel”

RLUIPA case in SDNY challenges alleged discrimination against Orthodox Jewish community

In December 2020, the Southern District of New York filed a lawsuit under the Religious Land Use and Institutionalized Persons Act (RLUIPA) against the Village of Airmont. The suit alleges
Read More
RLUIPA case in SDNY challenges alleged discrimination against Orthodox Jewish community

In the media

  • Gulf Coast Town Center facing foreclosure

    Naples Daily News, September 16, 2015

    Wells Fargo filed a lawsuit Sept. 8 against an affiliate of CBL & Associates, the owners of the decadeold, 1.2 million-square-foot mall in south Fort Myers for a $190.9 million unpaid loan. The center has 94 stores on 204 acres, with such anchors as Super Target, Belk, Best Buy, Dick’s Sporting Goods, Marshalls and Costco...

    Read More
  • Town liable for private company's leaking underground tanks, court rules

    NJ.com Jul 26, 2017

    CRANFORD -- A couple that owned a businesses in town and became sick from leaking underground tanks owned by an adjacent business can sue the township for damages because the tanks were partially ...

    Read More
  • Dark Waters: How a Class Action Catapulted NJ to Forefront of 'Forever Chemicals' Battle

    NJ Law Journal Jan 09, 2020

    As property owners become increasingly aware of PFAS contamination, and as individuals exposed to PFAS learn of the health risks associated with exposure, liability will likely affect entire supply chains.

    Read More
  1. 1
  2. 2
  3. 3
  4. 4
  5. 5
Contact Our Firm

Quick Contact Form