Search Site
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


Leave a Reply

Your email address will not be published.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

Our Attorneys

Recent Twitter Posts

  • Newark and Camden receive $400K each to clean up contaminated sites.
    5 days ago
  • Murphy Administration rejects golf course expansion onto Liberty State Park.
    2 weeks ago
  • Preservationists score big win in fight to protect Princeton Battlefield.
    3 weeks ago
  • Glass recycling plant breaks ground on former quarry land in Sussex County.
    3 weeks ago

Recent Blog Posts

United States Supreme Court Tackles Key Clean Water Act Judicial Review Issue

National Association of Manufacturers v. Department of Defense, et al. 583 U.S. ____ (2018) Decided January 22, 2018 Since the passing of the Clean Water Act in 1972, the definition of “the waters
Read More
United States Supreme Court Tackles Key Clean Water Act Judicial Review Issue

New Jersey Voters to Decide Important State Constitutional Amendment concerning the Environment

On Tuesday, November 7, 2017, New Jersey voters will be asked to decide on a state constitutional amendment regarding the use of natural resource damages collected by the State in
Read More
New Jersey Voters to Decide Important State Constitutional Amendment  concerning the Environment

Appellate Division Case Demonstrates Importance of Carefully Negotiated Escrow Agreements

Real estate transactions involving commercial and residential properties frequently employ the use of escrow agreements to address potential environmental issues.  This practice is widespread in New Jersey and it permits
Read More
Appellate Division Case Demonstrates Importance of Carefully Negotiated Escrow Agreements

NJDEP Updates Soil Remediation Standards for 19 Contaminants

Effective September 18, 2017, new soil remediation standards govern the cleanup of contaminated sites in New Jersey.  The New Jersey Department of Environmental Protection (“NJDEP”) recently updated remedial standards for
Read More
NJDEP Updates Soil Remediation Standards for 19 Contaminants

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

Quick Contact Form