Supreme Court won’t review Ocean City dune ruling

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OC likely owes owners for tall dunes

file photo file photo OCEAN CITY — Attorney Ken Porro thinks his client’s loss of view, ocean breezes and beach access from the creation of tall sand dunes is worth $100,000.

He believes he’ll now have a chance to prove that.

A trial court has already awarded more than that to his clients, Nicholas Talotta, Daniel Hughes and his wife, who share a beachfront duplex in Ocean City, deciding that the dune obstruction was worth $70,000 to Hughes, the first floor property owner, and $35,000 to the second floor owner, according to court documents.

Last October, a state appeals court ruled that the city owed the owners money.

The New Jersey Supreme Court last week declined to review that decision.

In an interview this week, Porro presented the issue as a straightforward constitutional issue.

“We should all be concerned and scared when the government has the right to take the most valuable property in the world,” he said. “Thomas Jefferson is turning over in his grave.”

But Porro acknowledges that it is a complicated matter. The courts have decided that there are clear benefits to the property owner in having a dune between their home and a coastal storm. The standard, Porro indicated, is that the owner is entitled to something, but it should not be a “windfall.”

The idea is that if it weren’t for the dune, a property would be underwater, and that must be taken into account when determining what loss of value to a property can be attributed to the construction of a dune. The standard stems from a case in Harvey Cedars, in which a property owner’s land was taken for a dune project. Last summer, the Supreme Court reversed a lower court’s decision on how compensation should be awarded. The value the dunes added to the remaining property would be taken into account, the court decided.

Porro suggested if it weren’t for the damage from Hurricane Sandy, that standard would not have been created, but said he is confident that he will be able to defend the award.

“It’s not an easy case. That’s why, in my opinion, the case has now turned to the coastal engineers,” Porro said.

It is a complicated case.

Attorney Michael Stanton, who argued the case for the city, was not immediately available for comment, but according to court documents, the city argued that it was in an impossible position.

Back in the early 1990s, when the city was seeking beach easements for dune creation and a massive beach replenishment project, the city promised to keep the dunes no more than three feet taller than the bulkhead.

The city would maintain the dunes at a particular height, cutting them back as sand accrued. But in 1994, the state declared that dune maintenance required a CAFRA permit.

On May 29, 2002, the city applied for a CAFRA permit to meet its obligations under the agreements. That permit was denied by the state Department of Environmental Protection on May 17, 2005. The city sued, and the court upheld the state’s position.

That meant the city could not legally meet its obligation under the agreement with the property owners.

On May 2, 2005, a group of owners sued the city, alleging the city breached its easement agreements, among other things.

In a second appeal, the court found that the owners of three other Ocean City beachfront properties, who entered into easement agreements with the city prior to the 1994 CAFRA amendments, were also entitled to compensation for what amounted to a taking of their property. Frank L. Corrado represented the Mitas, Scullys, Tanners and Smiths on their appeal.

On Thursday, Corrado confirmed that the Supreme Court denied the city’s petition for certifications, and that the city will be obligated to give his clients a hearing, but said there is little further he can say without talking to his clients.

Last fall, the appellate court reversed and remanded the Cape May County Superior Court ruling. Cape May County’s court ruling stated that because the property owners’ easement agreements predate the 1994 CAFRA amendments, it was impossible for Ocean City to fulfill its part of the easement agreements to keep the dunes at a certain height, so Ocean City was relieved of its contractual obligations and did not owe the property owners any compensation.
But, the appeals court freed the city of its obligation to maintain the dunes, citing the city’s inability to get the needed permits.

“The city made a deal with these people. These people gave up their rights to compensation in return for the city’s promise they would keep the dune at 3 feet or below,” Corrado said after the October ruling, as reported in The Gazette. “The city was unable to perform that promise.”

In the appeal, the plaintiffs were seeking liability judgments in their favor, arguing that “even if Ocean City were discharged of its contractual duties, the plaintiffs are entitled to compensation for the benefit they conferred on the municipality,” the court document states. The plaintiffs also contended that the 1994 CAFRA amendments amounted to a regulatory taking of their property without just compensation.

The portion of the appeal by the Mitas was completely dismissed by the court. According to Corrado, the Mitas’ claim was dismissed because the court held that no one established his actual ownership of the easement.

According to Porro, whether or not his clients benefit from the public use of their property, it was still taken by the government, and they are therefore entitled to be compensated at fair market value.

“What I try to do is take the word ‘dune’ out of the condemnation, and put in the word ‘school’ or put in the words ‘sewer plant,” he said. If a property owner has a substandard road in front of their land, and the government took a portion of it to build a newer, better road, the owner would benefit from the use of that improvement. But that doesn’t change the fact that the land was taken and the owner is due market value for the land, he argued.

“The government has the right to build that road, but they’ve got to pay just compensation,” he said. 

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