One of my favorite provisions of the U.S. Constitution and New Jersey’s counterpart has always been the Takings Clause.
These provisions prevent the government from expropriating property and "forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole," as explained in Greenway Dev. Co. v. Borough of Paramus, 163 N.J. 546 (2000).
By exercising its power of eminent domain, which has been traced to the Magna Carta, government can compel a private citizen to give up all, or part, of his property for public use. But when it proceeds in that manner, just compensation must be paid to the property owner.
While there may be differing opinions about the numbers, there can be no uncertainty about what just compensation means. It has been defined, in State, by Comm’r of Transp. v. Caoili, 135 N.J. 252 (1994), as "the fair market value as of the date of the taking determined by what a willing buyer and a willing seller, neither being under any compulsion to act, would agree to."
In some cases, the entire parcel is acquired; in others, only a portion of the property is taken. A timely example of a partial taking would be the acquisition of a portion of oceanfront property for dune construction.
In the partial-taking scenario, Ridgewood v. Sreel Investment Corp., 28 N.J. 121 (1958), requires that the property owner is "compensated not only for the value of the land taken but also for any diminution in the value of [the] remaining land which may be attributable to the taking."
Basically, this requires the determination and comparison of the before and after values.
These issues are far from academic, particularly in Superstorm Sandy’s aftermath. They are being played out in a case pending before the Supreme Court, Borough of Harvey Cedars v. Karan, 425 N.J. Super. 155 (App. Div.), certif. granted, 210 N.J. 478 (2012). They also are under consideration in the Legislature and are being actively discussed in the media as well as at town hall meetings.
After Sandy, New Jersey’s residents demonstrated their commitment to care for each other during troubled times. Part of that commitment was reflected in efforts to secure funds to assist with the recovery and rebuilding of the shore and other storm-ravaged areas. What we have learned so far is that some aspects of the process can be achieved relatively quickly, others will take a longer time and some will not be achieved. The state will never and should never be the same.
It did not take long before the search began for someone to blame. State and local officials failed to look inward. They did not assume responsibility for unthinking land use and permitting decisions that had encouraged and facilitated intense development in dangerously exposed locations. Rather, they have targeted the so-called holdouts for especially harsh public criticism.
These purported malefactors have been accused of being greedy, selfish and worse. They consist of oceanfront property owners who have refused to relinquish their constitutional rights for nothing, or nearly nothing (for the princely sum of $300 in the Karan case) to permit the government to construct engineered dunes on a portion of their property.
There can no longer be serious doubt concerning the efficacy of dunes in protecting oceanfront and inland properties. This was demonstrated in those areas where the dunes had been completed, which fared much better during the storm than did unprotected areas.
But the question is not whether the dunes can or should be constructed. Rather, like many disputes, it all comes down to money and who pays. This fact was not lost on the mayor of Long Beach Township, who assessed the dilemma in financial terms in the Nov. 25, 2012, edition of the Asbury Park Press: "We have 190 unsigned easements total in the township, and if each homeowner receives $300,000, you are talking about $60 million."
There must be a better way than attempting to publicly shame, "call out" or otherwise make life just plain miserable for the property owners who are simply exercising their constitutional rights. Lawmakers have before them S-2599/A-3889, which requires consideration of increased property value from dune construction in determining compensation for condemned beachfront property. The Legislature’s search to tweak the formula for determining just compensation is a worthy, but probably unavailing, pursuit.
But there are other approaches that should be considered, including spreading the costs for dune construction by imposing a special assessment or tax on shore-related activities and, in some cases, considering a strategic retreat from dangerously exposed locations where development has proven injurious to the health, welfare or safety of the community. •