November 9th, 2015 — By — In News & Events
New Jersey Beachfront Residents Represented by OCA Attorney Sue to Prevent Use of Eminent Domain
In October, a group of New Jersey beachfront homeowners brought suit against the New Jersey Department of Environmental Protection (DEP) seeking to prevent the agency’s use of eminent domain. Represented by eminent domain lawyer and OCA New Jersey representative Anthony DellaPelle, the property owners argue that the DEP’s plan to construct protective sand dunes on their properties would prevent them from taking their own precautions to avoid damage to their homes and land.
The homeowners argue that DEP’s plans include only the construction of the sand dunes with no plans for long-term maintenance on structures the agency has indicated will likely last only 5 years, yet the agency seeks perpetual easements across their properties. Further, the owners assert that given the perpetual nature of the easements, they would no longer have the ability to build their own storm protection systems instead becoming reliant on the government to protect their private property.
Rather than take this risk, nine property owners have asked the Ocean County Superior Court to enter a declaratory judgment prohibiting the agency from obtaining easements on their land. As their attorney Mr. DellaPelle told NBC New York, “It’s not hard to envision a battle over funding when the next storms wash away the sand . . . [the] homeowners do not want to be dependent on the government to protect their homes.”
As one homeowner noted in a recent Asbury Park Press article, the beachfront property owners inthis community have coordinated and paid for the construction and maintenance of a rock wall, which they credit with minimizing the damage their community suffered as a result of superstorm Sandy. These property owners feel confident in the current storm protection that they have chosen for their properties, but are less confident in the strengthen, longevity and reliability of the DEP’s sand dune project.
NJ Homeowners Allege Unconstitutional and Unlawful Exercise of Eminent Domain
In fighting against the sand dune project, the homeowners argue that the DEP has not been properly authorized to exercise the power of eminent domain. In New Jersey, state agencies can only condemn private property pursuant to legislative authority. However, in this case, DEP is attempting to acquire easements across not only the plaintiffs’ properties – but the land of thousands of property owners along the coast – pursuant to an Executive Order signed by Governor Chris Christie in 2013.
Further, landowners allege that DEP has sought to obtain these “perpetual and assignable easement[s] and right[s] of way” without payment of any compensation to the affected property owners. Additionally, landowners contend that the agency seeks to turn a portion of the plaintiffs’ private oceanfront property into a “public beach.”
An Easement is a Form of “Taking” Requiring Valid Public Use and Payment of Just Compensation
As we have previously discussed, an easement is a form of “taking” by the government even though it does not involve the transfer of ownership of the affected land. An easement can significantly impair the value and use of a piece of property, and private property owners are protected against such impairment by the Fifth Amendment. In the case of these New Jersey homeowners, DEP’s plan to construct sand dunes and designate a portion of their land as a public beach area appears likely to have a significant impact on the value (and even the potential long-term safety) of their properties.
These homeowners are fighting to protect their property rights against the unlawful exercise of eminent domain as well as from an unreliable, short-term government-sponsored storm protection plan that would prevent them from taking steps to protect their private property. We will keep you updated as the case progresses.