Legal Niches

Eminent domain in Harvey Cedars: The Dunesday Chronicles

By William J. Ward

A new and insidious attack on property owner rights is being undertaken by the Borough of Harvey Cedars on Long Beach Island. In December 2008, Harvey Cedars filed eminent domain complaints against beach front property owners. The borough seeks the right to acquire an easement across the width of ocean frontage. The stated purpose: Protect the oceanfront properties from beach erosion by constructing a 25-foot high sand dune.The easement is permanent, with the right to come on to the property and replenish the dune as required. The easement is assignable – to whom we don’t know. The easement area will be planted with vegetation – dune grass or pine trees? They’re not saying.
 

The borough has hired James Aaron of Ansell, Zaro, Grimm, and Aaron of Ocean, New Jersey, to represent them. Dr. Donald Molliver, MAI, of Monmouth College appraised all the easements at $300 each, premised on the view not being affected. But a 25-foot dune will block all first floor views and partially obstruct second floor views. The property owners will be contesting the right to take, premised, in part, on a failure to negotiate in good faith as required by N.J.S.A. 20:3-6.

The Molliver appraisals are absurd. The loss of ocean views will result in damage to the remainder which far exceeds the amount offered. See State v. Silver, 92 NJ507, 514, (1983).

There are multiple technical flaws in the complaints. The complaints cite, as authority to condemn, the Local Redevelopment Housing Law (LRHL) N.J.S.A. 40A:12A-1, et seq. This on its face is a gross error. These properties have not been blighted; there has been no blight hearing by the planning board as required by N.J.S.A. 40A:12A-7. The borough has not declared the subject properties to be in need of redevelopment and certainly could not sustain such a finding under the N.J. Supreme Court decision in Gallenthin Realty Development, Inc. v. Borough of Paulsboro . There is, therefore, no legal authority to acquire the easements under the LRHL statue and the New Jersey Constitution, Article VIII, Section III, Paragraph 1. The complaints also mistakenly seek a "fee simple" interest in the area to be acquired. The underlying ordinance adopted by Harvey Cedars, without proper legal authority, authorizes the acquisition of "easements."

The owners have filed answers to the complaints and object to the appointment of condemnation commissioners. The owners will also file motions to dismiss the complaints and ask the court to award counsel fees and costs pursuant to N.J.S.A. 20:3-26(b). See also West Orange v. 769 Associates LLC (A-5677-05). 

A hearing is scheduled before the Ocean County Assignment Judge Vincent Grasso, Friday February 6 at the Ocean County Courthouse in Toms River. The hearing is required by statute, N.J.S.A. 20:3-11, Township of Bridgewater v. Yarnell (64 NJ 211 (1974), Bergen County vs. Hackensack, 39 NJ 377 (1963).
 

Full post as published by New Jersey Eminent Domain Blog on January 29, 2009 (boomark / email).