New Jersey’s Supreme Court ruling last week proved a moral victory for towns seeking to build dunes as storm protection, but it far from settled the issue of how much compensation homeowners are due when such projects interfere with their oceanfront views.
The court threw out a $375,000 award to a Harvey Cedars couple who objected to dunes built by the U.S. Army Corps of Engineers and the borough to protect their home from storms. Furthermore, it said any financial award must calculate the added value to the property the dune provides because of increased storm protection. The court sent the case back to a trial court.
But what the ruling did not do was tell towns exactly how much that value is. That will be up to a new jury if the couple pursues the case.
“That’s the question a lot of towns want answered,” said Mark Mauriello, a former commissioner of the state Department of Environmental Protection and coastal flood expert.
Residents in shore towns where engineered dunes have already been built by the Army Corps will not be affected by this ruling because easements have already been secured. Towns with pending cases will be affected only if those cases are appealed or if the cases involve the same arguments as those in the Harvey Cedars case.
But in areas where dunes have not been built — including Margate, Longport, Sea Isle City and the south end of Ocean City — the ruling means towns have a new stick on their side when negotiating with property owners.
“It’s not the end of the fight,” said Margate Solicitor John Scott Abbott. “But now we have a much stronger position than we did this time last week.”
In Ocean City, where legal fights over dunes have been going on since the mid 1990s and multiple court settlements remain in the appeals process, the ruling has little effect on current cases, city Solicitor Dottie McCrosson said.
But as the city works to secure the easements for dunes and beach replenishment south of 29th Street, where an Army Corps project has not been done, McCrosson said the ruling will be a substantial help if homeowners don’t sign easements and the city is forced to use eminent domain.
Dunes on the rise
New Jersey beaches have been artificially widened since the 1930s, with the first projects undertaken in Atlantic City, according to the Program for the Study of Developed Shorelines at Western Carolina University.
Following two severe northeasters in the early 1990s, the state began working with the Army Corps and designed replenishment projects for the entire coast. Early designs did not necessarily include adding dunes, but by the mid-1990s, dunes were part of the package.
Engineered beaches include two major components: a wide beach and dunes. The fine-sand, gently sloping beaches in shore towns from Brigantine through Cape May generally require a wider beach and lower dune than the larger-grain sand, steep-sloped beaches on Long Beach Island and areas north.
About 168 million cubic yards of sand are needed to restore and maintain for 50 years the 78 miles of oceanfront in Atlantic, Cape May and Ocean counties that aren’t a state park or federal wildlife reserve, according to Army Corps documents. That sand comes from inlets and deposits offshore. Those deposits can be as close to shore as a few hundred yards or up to three miles out. So far, about 25 million cubic yards of sand has been put on beaches in Atlantic, Cape May and Ocean counties since 1993.
In a typical project, including repairs every few years, the federal government pays 75 percent of the total cost, with the state paying 25 percent. The state requires that local governments pay 5 percent of that share. Since the mid 1980s, $700 million has been spent on beaches and dune projects in New Jersey.
Critics contend the shoreline protection systems benefit only wealthy beachfront property owners and cost significantly more than the properties the dunes protect. But others say the dunes provide a recreational benefit critical to shore town tourism economies.
The federal and state governments require that beachfront property owners who have ownership of the beach in front of their house sign an easement allowing the Army Corps access in “in perpetuity” before government contractors can pump sand on those beaches and build the sand dune.
As some towns secured easements from property owners in order for the work to be done, they included language saying the dune height “would be limited.” But when the work was done in Ocean City, several dozen property owners sued, claiming the dune was too high and reduced property value.
So far the city has been sued in two cases, with one case containing at one time more than 60 plaintiffs, most of whom have had their cases dismissed or settled. One case, in which a jury awarded a total of $100,000 for lost views to two condo owners, is still in the appeals process.
Hurricane Sandy changed perceptions of whether communities should have dunes. Damage in towns where an engineered beach was in place was much less than in towns where little to no dune system existed.
Since the storm, Gov. Chris Christie has aggressively sought full federal funding to create engineered beaches wherever possible and has publicly targeted homeowners who have not signed the required easements, at times calling those homeowners “selfish.”
About $1 billion in full federal funding for beach replenishment projects was included in the $60 billion Sandy disaster aid package approved by Congress in January. Projects that already had been complete before the storm will be replenished to the original extent of the work, first completed in Atlantic City, Ventnor and other towns in 2004.
Projects that had been designed but never built are being revamped to meet the latest standards, said Army Corps spokesman Steve Rochette.
But to build those new projects, towns must not only approve them but must secure the easements “in perpetuity,” language that unnerves some property owners, including Assemblyman John McKeon, D-Essex, Morris, who owns a beach house in Brick Township, Ocean County.
“Ocean views and compensation are not the sticking points for thousands of families like mine who are struggling to recover from Sandy. We support the dune project and agree with the recent Supreme Court ruling,” MeKeon said in a statement. “All we are seeking is a basic ‘meets and bounds’ description, which tells us where the dune will be located on the property, before we sign off on an easement in perpetuity.”
Brick announced last week that Aug. 1 would be the deadline for property owners to sign easements voluntarily. After that, the township would initiate eminent domain proceedings. Mantoloking, Ocean County, already has begun the process of taking homeowners to court for easements. In Surf City on Long Beach Island, a half-dozen homeowners at the north end of the city have not signed easements, and the work underway will not include three blocks, enraging nearby homeowners who want the beach protection.
“Fact is, we need to get going with building these dunes and protecting our shoreline,” Christie said last week following the ruling. “And if you were hoping to get some six-figure payment for the loss of your precious view, I think the Supreme Court put a stake in that today.”
As of Thursday, 1,249 easements along the entire coast were still needed, DEP spokesman Larry Ragonese said, including 873 in Ocean County, 276 in Cape May County, 80 in Monmouth County and 20 in Atlantic County.
The Army Corps is expected to release its plan for how it will do the new projects in September, Ragonese said. Beach restoration is underway in Atlantic City and is expected to begin in Ventnor by about August. Cape May will see beach restoration work in the fall after bird nesting seasons end. Work will be done in the Monmouth County towns of Monmouth Beach and Sea Bright later this summer, Ragonese said.
A bill pending in the state Legislature would require that the value a dune adds to a property’s value be considered when determining any compensation for easements. The bill, versions of which are co-sponsored by Assemblyman John Amodeo, R-Atlantic, and state Sen. Jim Whelan, D-Atlantic, has passed the Senate Environment and Energy Committee but still sits in the Assembly’s Environment and Solid Waste Committee.
Shore towns along the entire New Jersey coast, wherever an Army Corps replenishment project has not been completed, have begun requesting easements from property owners who retain what is called riparian right. That means the property line stretches out either down to the high tide line or, in some cases, into the water.
Not all coastal property owners have these rights. In Margate, for example, city Solicitor Scott Abbott estimates nine properties have riparian rights, including the Anglers’ Club of Absecon Island, which owns the Margate Fishing Pier. Margate likely will hold a referendum to decide whether it wants dunes to be built, and the city has yet to send out letters requesting easements, Abbott said.
Club President Rich Ploucher said the club’s board needs to discuss Monday’s ruling but that any sort of beach replenishment work in Margate could have a profound effect on the club’s pier. If dunes were built at the level they are in Ventnor, parts of the pier would be under several feet of sand, and the end of the pier likely would either be over sand or in water too shallow to fish.
The club could extend the pier an additional 500 feet according to their property rights, but the cost would be substantial to a nonprofit group with $57,000 in expenses and $235,000 in assets, according to its 2011 tax form.
“I think the dunes would be good in a lot of the different areas,” Ploucher said. “But it would be hard to do around the club. It would just hurt us.”
Ocean City has undergone beach replenishment work numerous times, including before the Army Corps projects began in the 1990s and early 2000s. But there has never been an Army Corps project south of 29th Street, parts of which suffered severe beach erosion during Sandy.
McCrosson said letters went out to about 200 property owners in January, and so far the city has received 105 responses agreeing to sign easements. In some cases, she said, property owners told the city to take their entire beach property, which seaward of the bulkhead cannot be developed because of a long-standing city ordinance.
“There are so many people to whom we’ve sent this more than once,” McCrosson said.
“(We think) the reason they have not returned it is they are expecting compensation,” she added.
Beach property rights in Ocean City, like other shore towns, are complicated and have grown more complex over the years as oceanfront homes were turned into condominiums.
In some cases, McCrosson said, when new deeds were drawn up, surveyors did not include the riparian rights, so the beach property, which has little value because owners cannot build on it, still belongs to the original owner.
The majority of the properties where easements are needed are between 24th and 41st streets, with only a handful of properties between 41st and 59th streets.
“It’s a real checkerboard of properties and different situations,” she said.