To Dune or Not To Dune.......Is That The Question?

            Like most eminent domain and land use attorneys in New Jersey, I’m following the current New Jersey shore dune proposal with very high interest.  However, it seems to me that the majority of media reporting misses, or at least downplays, the major issue.  It is simply a fundamental tenet of American law on both the Federal and State levels that private property taken by an entity with the power of eminent domain can only do so for a public use and even then, shall not take private property without paying just compensation.

            These are the starting points when considering the acquisition of shore owner’s private property to install dunes.  Is the property private?  Yes.  Is the plan to install dunes a public use?  Again probably yes.  Are we dealing with an entity with the power of eminent domain?  I’d again have to say yes, although at this point we don’t know who the taking entity will be.  These are simple questions that go a long way to framing this issue.

 

            Sadly and unfortunately, the issue is being framed as one of selflessness on the part of the shore owners.  These owners have a legal and legitimate private property interest in their lands.  The State may in fact have a legitimate interest in protecting the overall public by constructing a dune system.  With all that being said, what the State does not have is a legitimate interest to require these property owners to freely donate their property.  Neither Federal nor State law requires that from any landowner.  As stated by Judge Learned Hand, “nobody owes any public duty to pay more than the law demands.”  If a few landowners choose to do so, great for them.  But any attempt to pressure landowners to donate their private land when the law does not require so, is nothing more than a land grab meant to circumvent existing Federal and State law disguised as civic responsibility.  And I’m sure Governor Christie, a lawyer, knows as much.  Based on a recent poll, a majority of shore residents also believe this to be the case.

 

Steven E. Taylor

Taylor Law Firm, LLC

www.TLF-LLC.com