[Continued from yesterday’s Part 3 and the preceding Part 1 and Part 2.]
The threat of storm surge overrunning beach houses, described in the preceding parts of this post based on an article from the New York Times (September 5, 2013), so motivated most of the shoreline owners that they mounted all the non-compulsory forms of suasion they could think of, from exposure and ostracism to shaming and threats … and none of them worked. Which raises the obvious question:
Why didn’t I think of that?
7. Why isn’t eminent domain being used?
For all the braggadocio and bluster of elected officials threatening to use eminent domain, or claiming they will threaten to use eminent domain, when it comes to the crunch local officials understand that eminent domain is guaranteed to be litigious and expensive.
Officials and lawyers for the holdouts agree that more people would sign if the towns paid them.
To be sure, money is an effective winding sheet.
Just like the new sand dunes, eminent domain has an uncertain benefit and a certain cost. One can easily understand the officials’ reluctance to go nuclear.
Well, we have four city council votes for sure
But the storm shifted that debate, too.
Funny how recent events influence judges as well as petitioners.
In July, the State Supreme Court overruled lower court decisions requiring the Borough of Harvey Cedars to compensate a couple $375,000 for building a dune that obstructed their ocean views, noting that the added protection had value.
Not a minor character in an English period drama, a town on Long Beach Island
While the equities of balancing forced benefit against forced cost are appealing, the principle here is quite tricky: Can I forcibly change your property, if on balance the property is worth more afterwards than before? That comes dangerously close to taking-without-taking and gives government too much peremptory power. In other words, though the principle is appealing, it offends my sense of how just compensation should be determined.
If we make everything around your pink house more valuable, we can take it, right?
However, the ruling had the politically desired effect (October 17, 2013 press release):
In July, the New Jersey Supreme Court overturned a lower court ruling that awarded a Harvey Cedars couple $375,000 for an easement that was taken by eminent domain. Following the Supreme Court ruling, the couple, who had argued the dune would block their ocean view, conveyed an easement to the borough allowing construction of an elevation 22-foot dune – in return for $1.
As a result:
Towns took this as a signal that they would not have to pay huge amounts if they took land by eminent domain, as Harvey Cedars had.
Other owners want compensation in return for signing (WOBM, May 6, 2013).
“How am I going to condemn somebody and pay them money when these other good neighbors didn’t ask for that?” Long Beach Mayor John Mancini told WCBS. “I’m not one for eminent domain. How do I pay somebody money when everybody else did it for the good of the community?”
Explain again why we should pay holdouts where cooperating people get nothing?
If the town believes this, take the property rights by eminent domain, and we’ll have another beachfront takings case to go alongside Nollan and Lucas. Toms River intended (August 19, 2013)to do that:
I don’t like to sound like a tough guy, but they’re either going to sign it or we’re going to do eminent domain and that’s all there is to it.
Tom Kelaher, Toms River mayor
Mayor Tom of Toms River
The Borough of Mantoloking, among the hardest hit by Hurricane Sandy, announced its intention last month to begin [using eminent domain to deal with its five remaining holdouts. Other communities say they expect to follow.
If they believe it’s imperative to protect the beach, they have no choice.
8. How intrusive is this eminent domain?
“It almost sounded like by signing the easement, you were giving all the rights to your private property,” said Tom Cangialosi, the treasurer of Surf Cottages Homeowners Association in Ortley Beach, where the storm flooded all the houses with more than four feet of water. “You can’t swallow that.”
Actually, these fears are overblown. Here’s the actual Corps of Engineers 2010 letter:
From USACE, dated June 17, 2010
The easement language, which I believe is extracted directly from the easement document itself, allows the Corps to do nine things (A through I), of which the only ones to raise property-takings issues might be Items e, f, and particularly i:”implement the public trust doctrine and ensure permanent public access, use, and enjoyment of the beach and ocean.”
In March, 2013, after Sandy, the Department also clarified that the dunes will not invisibly grow:
It is the Department’s policy that the size of both the beach and dune can and should be maintained at those levels. Toward this end the Department is developing regulations to allow municipalities to add or possibly remove sand from dunes consistent with the engineered design. To the extent that this policy would maintain views from properties, this policy should eliminate fears from property owners that dunes would be allowed to grow to heights above the design standard.
The dune’s design standard is twenty-two feet above the water line, and while that’s quite a lift, the beach itself slopes a fair ways down from the grass line.
That’s before the erosion
9. How do the equities and rights balance out?
Some types of collective-action infrastructure confer a benefit on all even if some fail to pay their share. In other situations, the holdouts put everyone at risk.
In Ortley Beach, the Surf Cottages association is having owners vote on whether to grant the easement. Mr. Cangialosi, the treasurer, said he had personally come to believe that signing the easement was better than having the town take the land, and that the town intended to do just that.
“There are some people who will be screaming and going down with the drum and fife,” he said.
Give me liberty or give me beach!
“But anybody who really thinks about things and considers the alternative will see: they want this, they’re going to do it. Your choice is sign or face the consequences.”
That’s always the choice, isn’t it?
There are often consequences
In fact, in early October the Surf Cottages Association did vote yes:
Nearly 500 easements are still outstanding in this northern Ocean County area, or about half of the 1,000 easements needed statewide. Governor Christie has taken aggressive action to secure outstanding easements required for all of the projects, signing an Executive Order under the authority of the state’s Disaster Control Act that authorizes the state to secure remaining easements, not provided voluntarily, through eminent domain.
“These holdouts should by now realize there is no windfall waiting for them,” continued Governor Christie. “After Sandy, there can be no justifiable argument for anyone to avoid doing what is right. Now is the time for all remaining beachfront property owners to step up and do the right thing for their neighbors, for their communities, and, for their own protection.”
It’s for everyone’s benefit