Bay Head Improvement Association Wins Major Victory Over the State of New Jersey For Beach Property Taking
The Court Commissioners appointed by Ocean County, New Jersey Superior Court Judge Marlene Ford, filed their report to determine just compensation for the taking of land owned by the Bay Head Improvement Association (BHIA). Peter H. Wegener, senior partner of Bathgate, Wegener & Wolf, as counsel representing the BHIA, announced that the award represented a vindication of the property owner’s position which was that the taking, reported to be a “mere easement” did in fact take for the state of New Jersey the entire market value of the underlying land.
The BHIA did not present a valuation expert of their own at the hearing, but the appraiser on behalf of the Department of Environmental Protection valued the property as a recreational beach at $2,311,700. The State argued that the BHIA could apply for a license to operate a public beach on the new State land created by the project East of the BHIA property and therefore should not receive any assessment for damages.
The State characterized the issue as “what is the damage of a beach to a project that will create more beach” and the Commissioners agreed with Mr. Wegener and the BHIA and said that the State had to pay for the property they were taking in order to satisfy the Constitutional requirement of paying just compensation for the property taken.
The Commissioners agreed with the BHIA that the placement of a 22 foot high dune over the property owned by the defendant rendered it essentially useless and the ability to apply for a revocable license for the new beach to be created is not equivalent to owning the use of one’s own land in fee simple. The Commissioners agreed with Wegener and his argument that the property right taken was the right to use it as a public beach and, with eminent domain full market value as the Constitution requires just compensation.
The Ocean Front Property Owners still contesting the State’s taking of their beach property rights were heartened by the Commission's decision as it finally appears that there is some legal recognition of the beachfront owner’s property rights which have previously gone unrecognized. In the aftermath of damage caused by Superstorm Sandy. The State of New Jersey and the Army Corps of Engineers promised that people who signed over the rights to their land would be protected. The Army Corps of Engineers published a widely read report claiming their dune project would prevent damage caused by a breach of the ocean for water directly into the bay causing the flooding of bayfront and lagoon homes. The intent of this report was to create political pressure on the Ocean Front Property Owners by accusing them of exposing their neighbors on the bay to greater danger from flooding in the event of future storms. While the Army Corps of Engineers has never recanted from that position, people supervising the report deny the authorship of it.
The State of New Jersey’s own studies indicate the breach had virtually nothing to do with the Barnegat Bay flooding which was actually caused by the wind shift from the south which forced the water from the bay to flood out the Northern Bay properties. 80 to 85 percent of property damage caused was the result of bay flooding.
Thatcher Brown, a spokesperson for the Ocean Front Property Owners (OFPO), said that “this is a good outcome for us, and should bolster our resolve as our individual valuation cases move ahead. And it should put the state on notice that their takeover of the beaches in Bay Head could be prohibitively expensive.”
The State has appealed the Commission's award and a case management conference will be scheduled to set a date for a jury trial.
Find information on the Army Corps’ beach project here http://www.nap.usace.army.mil/Missions/Civil-Works/Manasquan-Inlet-to-Barnegat-Inlet/
The BHIA did not present a valuation expert of their own at the hearing, but the appraiser on behalf of the Department of Environmental Protection valued the property as a recreational beach at $2,311,700. The State argued that the BHIA could apply for a license to operate a public beach on the new State land created by the project East of the BHIA property and therefore should not receive any assessment for damages.
The State characterized the issue as “what is the damage of a beach to a project that will create more beach” and the Commissioners agreed with Mr. Wegener and the BHIA and said that the State had to pay for the property they were taking in order to satisfy the Constitutional requirement of paying just compensation for the property taken.
The Commissioners agreed with the BHIA that the placement of a 22 foot high dune over the property owned by the defendant rendered it essentially useless and the ability to apply for a revocable license for the new beach to be created is not equivalent to owning the use of one’s own land in fee simple. The Commissioners agreed with Wegener and his argument that the property right taken was the right to use it as a public beach and, with eminent domain full market value as the Constitution requires just compensation.
The Ocean Front Property Owners still contesting the State’s taking of their beach property rights were heartened by the Commission's decision as it finally appears that there is some legal recognition of the beachfront owner’s property rights which have previously gone unrecognized. In the aftermath of damage caused by Superstorm Sandy. The State of New Jersey and the Army Corps of Engineers promised that people who signed over the rights to their land would be protected. The Army Corps of Engineers published a widely read report claiming their dune project would prevent damage caused by a breach of the ocean for water directly into the bay causing the flooding of bayfront and lagoon homes. The intent of this report was to create political pressure on the Ocean Front Property Owners by accusing them of exposing their neighbors on the bay to greater danger from flooding in the event of future storms. While the Army Corps of Engineers has never recanted from that position, people supervising the report deny the authorship of it.
The State of New Jersey’s own studies indicate the breach had virtually nothing to do with the Barnegat Bay flooding which was actually caused by the wind shift from the south which forced the water from the bay to flood out the Northern Bay properties. 80 to 85 percent of property damage caused was the result of bay flooding.
Thatcher Brown, a spokesperson for the Ocean Front Property Owners (OFPO), said that “this is a good outcome for us, and should bolster our resolve as our individual valuation cases move ahead. And it should put the state on notice that their takeover of the beaches in Bay Head could be prohibitively expensive.”
The State has appealed the Commission's award and a case management conference will be scheduled to set a date for a jury trial.
Find information on the Army Corps’ beach project here http://www.nap.usace.army.mil/Missions/Civil-Works/Manasquan-Inlet-to-Barnegat-Inlet/
