Legal Niches

Inverse condemnation at the beach

By William J. Ward

In the case of Klumpp vs. Borough of Avalon,  the Appellate Division unanimously affirmed the trial court decision of Judge Perskie. Judge Perskie had determined that, after the 1962 storm which destroyed plaintiff's beachfront home, the defendant Borough of Avalon took functional physical possession of the property by including it in the dune system that it constructed after the storm. Judge Perski entered a judgment that the borough's conduct constituted a taking by way of inverse condemnation. Judge Perskie also found that the 1979 rezoning of the property to open space by the Borough deprived plaintiffs of all functional use of the property and therefore constituted a regulatory taking as well.

The Appellate Court agreed on both counts:

We find that Judge Perskie's conclusions were supported by substantial and credible evidence in the record. Inverse condemnation occurred here by both the Borough's physical occupation of plaintiffs' property for public use and its adoption of the regulatory scheme to support the protection of the engineered sand dune. A regulatory taking of the property occurred as well. (Slip opinion, p. 14)

Download the per curiam opinion in Klumpp v. Borough of Avalon.

Full post as published by New Jersey Eminent Domain Blog on August 06, 2009 (boomark / email).