March 25, 2013

GTL: Gym, tanning, … looting? New Jersey wants to take coastal property without paying for it.

By Jonathan Wood Attorney

The New Jersey Condemnation Law blog reports on a legislative effort in NJ to limit the state’s liability for taking private property in its Hurricane Sandy restoration efforts.  Rather than respecting private property in these efforts, the bill attempts to define away its constitutional obligation to compensate property owners.  The bill would define “just compensation” in cases concerning dune construction or beach renourishment.  It would require any benefits that property owners receive from the restoration project to be used to reduce any just compensation award, while prohibiting the negative effects of public access from being considered by courts.  As most readers know, just compensation is the amount  that the government must pay property owners for property taken under the Fifth Amendment.  The post explains that this legislation is designed to preempt a takings case before the New Jersey Supreme Court:

[T]he proposed statute seeks to preemptively decide the issues pending before the New Jersey Supreme Court is (sic) a case known as Borough of Harvey Cedars v. Karan [].  The issue in Karan is whether the decision of an Ocean County jury to award a property owner “just compensation” for the taking of their private property should be affirmed.  The government has appealed the award of just compensation arguing that the property owners should not receive more than $1 dollar for the taking of their private beachfront property because the government put a public dune on the part taken that benefits the entire beach-going public, as well as the inland residences and businesses occupying the barrier island.  The trial court and the Appellate Division rejected the government’s argument, and the Supreme Court decided to take the case before Superstorm Sandy struck.

The legislative proposal is a particularly ill-considered and unconstitutional response.  It would prohibit any property owner who has part of her property taken from recovering for any decrease in the market value of the remainder if that loss is attributable to “rights of the public to access property.”  But, how often strangers walk along the edge of a person’s backyard and the extent to which they prevent the peaceful enjoyment of the remaining property are likely to have a huge impact on this value.  The Constitution doesn’t permit a legislature to pretend otherwise.

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