Ocean Dunes: Friend or Foe

Ocean dunes have long been acknowledged as an established means for maintaining sandy beaches. Coastal experts, however, have various opinions as to whether these walls of sand truly protect the upland property owners against mother-nature’s ocean storms. Ocean dunes, nonetheless, receive great press. Year round property owners; for example, in Long Beach Island, New Jersey and Ocean City, New Jersey, continually praise the dunes for their alleged protection of inland properties. Moreover, millions and millions of taxpayer dollars are appropriated for dune projects throughout the country because of their perceived public protection purpose. Ocean front property owners, on the other hand, have a far differing view. Ocean front property owners spend millions of dollars to purchase these unique special properties which provide views, access and breezes. These oceanfront property owners protect their properties from storms by way of bulkheads or other less visually intrusive methods than a wall of sand. Long Beach Island for example, has numerous sand dunes which were created without governmental intervention by property owners who maintain their privately created reasonable sand dunes through lower sand dunes captured by dune grass plantings and dune fencing.
Long Beach Island’s townships are currently proffering an ambitious dune protection project which involves a 22 foot high sand dune with a 50 foot wide peak, which steeps down an additional 130 feet. This Long Beach Island monstrous wall of sand will directly have an effect on property owners’ views, access and ocean breezes. Depending upon whom you speak with, you will receive quite a difference in opinion. The oceanfront property owners are generally against the unbridled dune project. Whereas, the inland property owners are, in general, in support of the project, except those inland property owners who see the dune project as a waste of taxpayer dollars, as well as creating an excessively long access path to get to the ocean waters.

Property Rights

New Jersey law has long recognized that the loss of view, loss of access and loss of ocean breezes are protected rights. These rights are guaranteed by the United States Constitution Fifth Amendment taking clause and as against the States through the Fourteenth Amendment. It is unfortunate that the Army Corp. of Engineers and the DEP have in many sand dune projects chosen proposals which do not balance ocean views, access and breezes. More specifically, it is possible to have an ocean dune constructed, with a lower height, but a wider volume. Thereby, the base of the dune may be wider but the views of the property owner are intact. It is a chilling feeling to stand between an oceanfront property dwelling and a dune alleyway in which there is little or no ocean breeze or ocean view. There are however, numerous flies and gnats, which lie in waiting behind the wall of sand for the property owner and his/her guests.

Discrimination

Civil Rights Discrimination is an interesting issue emerging throughout the State of New Jersey in combating unbridled dune projects. More specifically, government entities that demand execution of sand dune easements without compensation are running afoul of civil rights laws. Again, this issue of protection is questionable in that numerous sand dunes projects throughout the state and country, where a large storm has occurred, the sand dunes are literally nothing more than a band aid which has eroded. In many cases, the sand dune sand ends up in the living room of the ocean front property owners.

More offensive is the governmental practice of not providing certain benefits to ocean front property owners who do not sign the property taking easement agreement. For example, in Long Beach Island, New Jersey, property owners in Harvey Cedars who did not execute the unbridled easement agreement were subject to harassment by inland property owners and local officials. These Harvey Cedars ocean front property owners which had normally received sand replenishment in the past through beach badge annual funds, now would no longer receive such beach replenishment sand until they executed the non-compensating unbridled dune easement agreements. Even whereas in the Long Beach Island case, there are no protective provisions within the dune easement agreement to protest oceanfront property owners’ ocean view, access or breeze. Governmental officials should be reminded of the Federal and State civil rights statutes known as Section 1983 laws. Unfortunately, the Section 1983 cases are not well publicized as it is extremely expensive to litigate these civil rights causes of actions. This author, however, believes that the continuing abuses of government action against civil rights and property rights will force certain honorable citizens to challenge unjust governmental action. Moreover, this author welcomes such necessary litigation in order to protect our constitutional property rights and way of life.

The Balance

In sum, ocean dunes do provide a recognized public purpose and thereby it is extremely difficult to stop such ocean dune projects. The balance, however, is that if government does wish to construct ocean dune projects, there must be safeguards in place to protect oceanfront property owners’ ocean views, access and breezes. The balance between the public need and constitutional rights is not always a clear one. Emotions on both sides are strong. The answer, as in most cases, is found somewhere in between the public need for reasonable dune dimensions and oceanfront property owners’ reasonable need for ocean views, access, and breezes.

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