Is the Pillory Coming Back in New Jersey?

A while back we took note of the New Jersey Supreme Court’s decision in Borough of Harvey Cedars v. Karan, in which the court abolished the difference between general and special benefits and held that the former as well as the latter may be offset against just compensation due the owner in an eminent domain action. The Borough wanted to acquire a strip of beach, enlarge it by some 200 feet and build on it a 20-foot high dune running for some 50 miles, to protect beachfront homes from destructive hurricanes. But it also wanted to offset the value of the benefits generated by the taking and construction of the dune against the just compensation due the owners. But under preexisting law, only special benefits could be so offset, not general benefits as was the case here. So the New Jersey Supreme Court changed the rule, held that both special and general benefits may be so offset, vacated the $375,000 award to the owner and remanded the case for retrial under the new rule.

But guess what? It turns out that the borough, good kleptocrats that they are, doesn’t want to pay anything, so it has been offering trivial sums (like $300) and demanding that affected beachfront homeowners dedicate those easements even though no one can tell at this time what they are worth. Some owners have dedicated, but others have not, and want to go to trial to determine the value of those newfangled benefits.  Now it turns out that some good local folks, including the state governor, are putting pressure on the holdouts to forgo their constitutional rights to a trial by jury and to just compensation, and dedicate those easements.

“Towns have tried to shame holdouts into signing easements by posting their names on Web sites and sending them to newspapers. Defiant owners say they have received threatening e-mails and phone calls and had dog feces left in their mail boxes or thrown on their decks.” Kate Zernicke, Trying to Shame Dune Holdouts At Jersey Shore, N.Y. Times, Sept. 5, 2013, at p. A1.

In one case  a local market has refused to sell produce to holdout families.

Of course, the borough is wrong even on its own premise. Why? Because the severance damages caused by the blockage of view will occur now — immediately upon construction of the dunes. But the benefits — protection of the homes from destructive hurricanes — cannot occur until some time in the future when (a) a high intensity hurricane actually occurs (which may not happen for decades, if at all), and (b) the hurricane is of sufficient strength to be destructive. So even on the boroughs premise, the conjectured benefits of protection by that dune would have to be discounted for time, even if you reject the fact that they are inherently speculative, because they may never occur, and if they do they may cause only minor damage, or no damage at all. So arriving at their present value may be — shall we say? — an “interesting” job for an appraiser who would have to come up with one hell of a discount rate.

But there is a much more important, civic matter afoot here. The value of those benefits may be high or low, but either way, where do those vigilante neighbors and a fortiori Governor Fatso get off, publicly vilifying people who haven’t done anything wrong and only want to make sure that their constitutional rights (whether highly or modestly valuable) are observed? You can bet your bottom dollar that if those righteous (or is it self-righteous) vigilante-neighbors were demanding that the holdouts forgo their other constitutional rights — like maybe their Fist Amendment rights  and refrain from opposing the war in Syria, for example — the New York Times would scream bloody murder and lecture one and all to be respectful of the local folks’ right to take whatever position they want on an issue of interest to the community. Any doubt about that? One thing is sure, the Times would never, ever call such an effort “shaming” of the holdouts; it would call it “intimidation” which is what it is, and throw a hissy fit.

Our point is that, like it was said in the old days by true liberals: where the constitutional rights of some citizens are not respected, nobody’s rights of any kind are safe.