What’s the Going Price for a Dune on the Jersey Shore?

State Supreme Court takes up case on easements and "just compensation" for beachfront property owners along New Jersey's battered shore

dune splash
Dunes are good, right?

Not to everyone, especially those with million-dollar homes and a bird’s-eye view of the Atlantic Ocean from their living room.

In the devastating wake of Hurricane Sandy, a general consensus has emerged that effectively engineered dunes along beaches averted for some Jersey Shore communities the widespread destruction that occurred elsewhere.

But building those dunes and taking on other beach replenishment projects typically requires easements from owners of oceanfront property. Yet some are unwilling to surrender their property and chafe at the compensation they receive for it.

And that’s the rub.

The issue is one of the most contentious facing policymakers hoping to rebuild and to better protect coastal communities from tomorrow’s extreme storms — a question that may be answered by the New Jersey Supreme Court in a case to be argued before it on Monday.

The case, which turns on the taking of land in Harvey Cedars from a single property-owner for a beach replenishment and dune project, has important implications. These were was explored in detail at a Monmouth University forum yesterday appropriately titled “Dunes, More Dunes and Dough.’’

Big money is at stake here. The federal government set aside $3.5 billion for beach replenishment projects in the aftermath of Sandy, according to Tony MacDonald , director of the Urban Coast Institute at the university.

How much New Jersey receives could well depend on how the court rules on what some say is a relatively narrow legal issue. The case once again raises questions about how much the court’s decisions affect public policy, an issue downplayed by former Chief Justice James Zazzali, one of the speakers at the forum.

If the state appellate court ruling is upheld, which awarded the Harvey Cedars property owners $375,000 for their land, it could make future shore protection projects economically impractical, according to critics of the decision. The federal and state governments, which fund the bulk of such projects, would be hamstrung if similar awards were given to each homeowner whose land was taken.

“The projects won’t be feasible,’’ said Larry Shapiro, an attorney representing the interests of Harvey Cedars before the New Jersey Supreme Court.

To others, however, including the lawyer representing the property owners,
it is a matter of eroding property rights guaranteed by the state and federal constitutions.

“The constitution says if you take any property for a public project, you must pay just compensation,’’ said Peter Wegener, the attorney representing the property owners. Precisely what is “just compensation” lies at the heart of the case.

In the initial ruling, an expert hired by Harvey Cedars recommended compensation of only $300.

To proceed with beach replenishment projects, the federal government — which typically finances approximately 70 percent of the cost, requires easements from property owners along ocean to build dunes and widen beaches.

It is an issue many local officials are having a tough time wrestling with.

In Mantloloking, where this week 50 homes so battered by the storm are being demolished, 117 residents out of 120 oceanfront homes have signed voluntary easements to allow the projects to move forward.

“The storm was a game-changer for us in the town,’’ said Chris Nelson, a special counsel for the community. His own home was under two feet of water following the storm, he said.

In Long Beach Township, Mayor Joseph Mancini said of 468 oceanfront homeowners along the 12 miles of beaches, only 50 have not signed the easements.

“I just hope the Supreme Court justices, post-Sandy, overturn the appellate decision,’’ Mancini said. “This is something we cannot live with.’’

And with new requirements to raise homes to protect against flooding, even with the construction of new dunes, homeowners may still have a clear view of the ocean, if not of bikini-clad women along the beaches, according to Mancini.

Why should property owners who voluntarily signed easements to build dunes and beach replenishment projects on their property, a step Mancini argued is motivated by their desire to protect the community, be denied compensation?

“If 50 hold out and get easement compensation, why are not the others getting any money,’’ he asked, a question at the core of the case before the state Supreme Court. Are dune and beach replenishment projects a general benefit to a public at risk of flood damages from a big storm or a specific benefit to those who are most at risk?

Shapiro contends that they provide a specific benefit to homeowners, particularly on oceanfront properties. He noted that the Army Corps of Engineers testified in the appellate case that without the dune project, the property had a 33 percent risk of being destroyed in the next 30 years. With a dune built, the risk fell to 1 percent, he said.

The controversy has spurred legislation that hopes to deal with the issue, but it has yet to move forward in the Legislature. Assemblyman David Wolfe (R-Ocean) has submitted a bill (A-3986) that would give more weight to the greater public good than individual property rights, he said at the forum.

The whole question of dune restoration is becoming a hot button for the Christie administration. The governor, who has been a proponent of building more dunes to protect homes and the Jersey Shore, has threatened to name property owners who refuse to sign the easement. Some only want to preserve their ocean, he said.

In Long Beach Township, Mancini has already made good on the governor’s threat, a tactic decried by Wegener.

“The idea to set neighbor against neighbor strikes me as outrageous,’’ he said with his voice rising. “Talk about chilling constitutional rights.’’

MacDonald, however, predicted that restoring and building new dunes is not the only answer to protecting the Jersey Shore from future storms.