Posted by Mary Ann Spoto, NJ.com on Nov 20, 2014
In the ongoing battle over how far government can go to build protective beach dunes in New Jersey, a group of oceanfront homeowners in Long Beach Township has sued the town over what it says is an illegal taking of property as a major beach replenishment project nears.
The homeowners, mostly in the affluent section of Loveladies, contend the town based its actions on a law that doesn’t apply to their situation and took portions of their property without their knowledge.
Long Beach Township, on the cusp of getting a long-awaited beach replenishment work, has fought with and cajoled residents for the past several years to sign over easements for the work. These takings represent some of the last pieces needed for the project to start.
“These are permanent takings and they’re pretty substantial takings,” said attorney William Ward, who represents the six sets of homeowners.
Ward says the town relied on the Disaster Control Act to take the parcels when it should have followed the requirements of the Eminent Domain Act. He said the Disaster Control Act, adopted after the Great Storm of 1962 sliced Long Beach Island in half, only applies immediately after a disaster – not two years later.
“There’s no emergency right now,” he said.
Long Beach Township Mayor Joseph Mancini said he couldn’t discuss the pending litigation and he referred questions to the state and to Paul Fernicola, the Red Bank attorney representing the town in these cases.
Fernicola did not return a call for comment. Lee Moore, a spokesman for the state Attorney General’s Office, which is overseeing the acquisition of easements in the state for dune projects, said he can’t talk about the case.
In the past, Gov. Chris Christie and state Environmental Protection Commissioner Bob Martin have said the state will do whatever it needs to obtain the necessary easements so that the U.S. Army Corps of Engineers can start beach replenishment this winter in Ocean County. They have said a continuous dune is crucial to preventing destruction in future storms like the damage inflicted by Hurricane Sandy in October 2012.
In refusing to sign easements, some residents over the years have objected to the 22-foot high dunes blocking their views and others say the wording of the easements is too overly broad for their comfort level over what the state can do with the property in the future. And others say they should be compensated for what they feel is a loss in value to their property because of the obstructed view and the vagaries of the easement.
Moore said that on Long Beach Island, all the easements have been obtained either by property owners voluntarily donating them or by the towns taking them under the Disaster Control Act.
Statewide, there are fewer than 350 easements left to obtain and those are primarily in northern Ocean County, from the Manasquan Inlet to the Barnegat Inlet, Moore said.
But the residents in this suit, filed Nov. 5, said they didn’t even know their easements were taken until they received a letter from the township last month. That was after the town on Oct. 6 adopted a resolution authorizing the takings and after the town had already recorded ownership of the easements with the Ocean County Clerk’s Office, Ward said.
Among his clients are Shanin Specter, who is the son of late U.S. Sen. Arlen Specter from Pennsylvania, and the younger Specter’s prominent law firm partner, Thomas Kline.
Ward said that by using the Disaster Control Act, the town is bypassing all the safeguards built into the state’s eminent domain law protecting property owners.
Under eminent domain procedures, the agency taking the property has to provide the property owner with an appraisal for the value of the tract and then make an offer to purchase it. There has to be a period of good-faith negotiations and if there is no resolution, the matter goes to court. In the meantime, the agency has to put into Escrow the amount of money anticipated to be spent for the easement purchase.
If there is an agreement over how much the property owner will be paid for the easement under the state’s eminent domain law, a deed is issued to the agency taking the parcel, Ward said. But when there is a dispute, the agency files a declaration of taking and that filed document gives the agency title to the easement, he said.
Under the Disaster Control Act, the agency automatically gets the deed to the tract in dispute and does not have to pay for the easements.
In these cases, Ward said, the sizes of the pieces taken are “significant,” ranging from nearly a third of an acre to three-quarters of an acre. And the value is notable, he said. One of the oceanfront property owners in the suit, Tina Carolan, pays $50,000 a year in taxes, he said.
“They’ve taken title to all these properties…and haven’t gone through eminent domain,” Ward said. “We’re hoping a judge will say that’s improper.”