Large condemnation awards for beach house owners who lose part of their ocean views to protective sand dunes may soon be gone with the wind.
Newly introduced legislation in Trenton would limit compensation payable for easements for dune construction, which is an urgent priority since Superstorm Sandy ravaged the coast.
A bill filed Monday, S-2618/A-3896, says compensation "shall include consideration of the increase in value to the entire property due to the added safety and property protection provided by the dune or replenished beach."
Further, any right of public beach access resulting from condemnation "shall not be considered to cause a diminution in the value of the entire property," the bill says.
Sen. James Holzapfel, R-Ocean, a sponsor, says he was prompted by a case in Ocean County where a jury awarded homeowners $375,000 as recompense for ocean-view obstruction.
"It would discourage oceanfront homeowners from trying to establish hundreds of thousands of dollars worth of loss," says Holzapfel, of Citta, Holzapfel & Zabarsky in Toms River. "I can’t believe that governments are in the position to pay out thousands and thousands per house."
Public support for a measure like this is "absolutely" stronger than it would have been before Sandy, he adds.
Though he doesn’t handle eminent domain matters, Holzapfel says the bill should pass constitutional muster because, while it effectively limits recoveries, it doesn’t foreclose homeowners from courtrooms or jury access.
"This might be a way to accomplish what we want to accomplish without stepping all over individual rights," he says.
Holzapfel, whose district includes Mantoloking and other Sandy-damaged towns, notes that dune construction must be uniform to be effective and that the time is ripe for beach reconstruction while homes, too, are in repair.
"It’s got to be a continuous run," he says. "If you have breaks in the dune line, that’s going to become an inlet."
By the time Holzapfel contacted the Office of Legislative Services to request a bill, another measure already was being drafted. S-2599/A-3889, sponsored by James Whalen, D-Atlantic, was introduced Feb. 21.
It, too, would provide that added safety must be considered in condemnation judgments. But it also states that "any diminution in value to the property attributable to the condemnation" must be taken into account as well.
Whalen’s bill does not include the provision that would bar consideration of devaluation based on public access to the government-acquired land.
Holzapfel said his staff has been in contact with Whalen’s office about merging the two bills or signing onto Whalen’s as a sponsor. Whelan’s aide, Mike Suleiman, says Holzapfel’s sponsorship would be welcome.
The Ocean County case, Borough of Harvey Cedars v. Karan, A-120-11, is pending at the state Supreme Court.
Harvey Cedars acquired the easement interest of oceanfront homeowners Harvey and Phyllis Karan through condemnation litigation that began in November 2008.
The borough built a 22-foot-high dune that has blocked the couple’s once-pristine view of the sand and surf.
In court, each side agreed to a $1.9 million appraisal of the property prior to dune construction.
But that’s where the agreement ended. The Karans’ appraiser argued that the view obstruction devalued the property by $500,000. The borough’s appraiser set the devaluation at $300, arguing that it should be offset by the value that the protective dunes provide for the property. He admitted neglecting to visit the Karans’ property.
Ocean County Superior Court Judge E. David Millard excluded any evidence of the dunes’ purported monetary value, holding that they provided a "general," rather than a "specific," benefit.
In an April 2011 verdict, the jury awarded the Karans $375,000.
Of the 82 easement interests acquired by Harvey Cedars, 15 were contested, and the Karans’ recovery was the highest, says borough’s lawyer Lawrence Shapiro, of Ansell Grimm & Aaron.
In March 2012, the Appellate Division called dune construction "a classic example of a general benefit" and any greater degree of protection afforded to the Karans "not a legally cognizable ‘special benefit’ for purposes of valuation in a condemnation case."
The court cited City of Ocean City v. Maffucci, 326 N.J. Super. 1 (1999), where an Appellate Division panel held the loss of an ocean view compensable and upheld a $100,000 condemnation judgment.
The Supreme Court granted Harvey Cedars’ petition for certification last June 8. No argument date had been set as of Thursday. •