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The Department of Environmental

Protection (“DEP”) has recently filed a Petition to the New Jersey Supreme Court requesting New Jersey's highest Court to review the existing case law dealing with property owners' vested rights to maintain ocean views, access and breezes. This case however, could have broader implications to non-oceanfront properties throughout the State.

Oceanfront Property Owners

The current state of law is that oceanfront property owners in New Jersey who maintain oceanfront vested property rights, cannot be negatively impacted by the construction of governmental sand dune projects which take away those same view, access or breeze vested rights without paying just compensation. This controversy is not a new one. Governmental projects historically impact adjacent properties. Sometimes the impact is positive and sometimes negative.

LBI Case Study

The DEP in the Long Beach Island case is stressing the need for beach replenishment and homeowner protection against mother nature's storms. Whereas the oceanfront property owners are stressing their vested property rights associated with priceless ocean views, access and breezes. There should be no surprise that the dispute boils down to money. The DEP feels that they do not have to pay one penny to compensate the property owner because the construction of the sand dune will “allegedly” protect them against ocean storms and its related damages. Governmental officials have candidly admitted that a wall of sand will not stop a hurricane or Nor'easter type storm, but dunes still get good press.

Neighbor War

To make matters worse, the dune project in Long Beach Island has caused an oceanfront versus non-oceanfront property owner battle. The non-oceanfront property owners believe that the oceanfront property owners are being selfish in not permitting the construction of the wall of sand dunes which comes with it, municipal bathrooms, municipal parking, municipal budget cost savings and better public access. The oceanfront property owners cry foul that their vested ocean views, access and breezes are being taken away without payment of “just compensation” mandated by our New Jersey State Constitution. Moreover, in the Long Beach case, the governmental agencies have set aside no dollars for property “taking” with regard to the project budgeting. This poor budgeting approach has doomed the project from the beginning.

Litigation History

To date, the LBI dune project has been reviewed by the Ocean County Superior Court and the New Jersey Superior Court Appellate Division. Both Courts have upheld the oceanfront property owners' rights to be compensated for their lost views, access and breezes. The DEP, unfortunately, is not satisfied with those results and has now in August 2008 filed a Petition to the New Jersey Supreme Court to once and for all determine what the law of the State of New Jersey should be. The New Jersey Superior Court is the end of the road.

Despite the conflicting positions of the parties, this writer is confident that the New Jersey State Constitution and the related New Jersey laws of Eminent Domain will continue to be upheld and recognized in the State of New Jersey. More specifically, we believe that government cannot take private property without paying just compensation whether it be oceanfront property; a highway improvement roadway; or any other public health, safety & welfare project.

Kenneth A. Porro is a Partner at WJ&L and the Senior Litigator of our Litigation Department. He has been active in environmental law and the attorney on several major dunes litigation cases.