After Hurricane Sandy caused damage to beachfront property in New Jersey, the state decided to prevent a recurrence by having the US Corps of Engineers build new dunes along the beach, hoping that they would hold off the surging surf in case another hurricane came along. But some of the owners of beachfront homes oppose this solution because the new dunes would impair or destroy their ocean view. Which sounds reasonable — what’s the point of paying extra for an oceanfront home if you can’t see the ocean?
There is more to it than that. Some of the owners point to existing seawalls, and contend that they are as good as the proposed dunes, so there is no point in replacing them. Now, things get sticky. The Corps is willing to do the job and spend the millions required to do it, but it evidently wants the state to acquire the necessary land for those dunes. Further, the state — personified by Governor Chris Christie — demands that the affected beachfront homeowners donate (as in gratis) the necessary land, to which the aforementioned owners have replied with a polite variant of “Hell, no!” After the last presidential “debate” we know (from Governor Chrstie himself) that you mustn’t be rude in New Jersey. Just kidding, folks; the guv was the soul of politeness, given the provocation to which he was subjected.
Beyond that, some of the objecting owners have hired a first-class eminent domain lawyer, Tony Della Pelle of McKirdy & Riskin, who has filed an action on their behalf, arguing that the state should retain the seawalls which they have recently reinforced, which they contend, would do the job, preserve their property rights, and coincidentally, save the state a bundle of money.
So the battle has been joined, and we await the results of litigational round one. We wish Tony (whom we happen know and of whom we think highly) the best of luck in this uphill fight. Why uphill? Because when it comes to choosing how to address the problem that is to be solved by the public project, judges just don’t like to listen, much less to rule against the government’s choice of solutions (See the post on Public Necessity which just happens to precede this one).
Anyway, stay tuned because this promises to be an interesting battle, with the last word to be delivered by the appellate courts. The U.S. Supreme Court aleady touched on it in the Renourish the Beach case which turned out to be inconclusive, so maybe their Lordships will want to take another shot at it.
For the whole story, read Patrick McGeehan, Residents Feud Over Building Dune Defenses At Jersey Shore, N.Y. Times, Oct. 31, 2015, at p.A18.
By the way, though the NY Times is silent on this specific point, there is possibly the question involved here whether the new dunes will also create a new stretch of beach, and whether the Corps, or the state would own it. If so, count on another battle as to who owns the new, artificially accreted beach.