A Little Flexibility Could Go A Long Way

The concept of eminent domain contains two parts: public purpose and just compensation.

Certainly the idea of public purpose has gotten fuzzy lately. In Kelo v. The City of New London apparently viable private property was condemned and turned over to a redeveloper.

But most issues of public purpose are much more mundane and settled: the construction of roads, bridges, public buildings and parks. The list is rather extensive.

Since Sandy scoured our coast the importance of dunes in shore protection has been on people’s minds. Few deny the importance and effectiveness of dune construction.

The issue really is one of just compensation. Take away views and access and you take away value.

I am not the only one who believes this. In a February 7, 2013 article by Kris Hudson in the Wall Street Journal, a study showed that golf course and lake views can add 42% to a whopping 287% premium to real estate.

The dunes proposed on Long Beach Island were designed by the U.S. Army Corps of Engineers to be 22 feet high. Easements were required from homeowners because the plan included placing the dunes partially on privately-owned lots.

Here’s the rub. The easements state that the dunes would always be replenished back to 22 feet and granted the right to the municipality to plant dune grasses and install fencing to encourage dune growth.

At 22 feet some homes lost views, some did not. But there is no upper limit to the height. Dune grasses and snow fences are much cheaper than beach replenishment, so the result – very high dunes – is predictable.

I have some thoughts on how this issue can be resolved:

  • Change the language of the easements to state that every five years the dune      height will be maintained at 22 feet. Dunes will be built up where necessary and reduced in height where necessary. This is the cost of a bulldozer for a couple of months – peanuts- and the views are maintained over time.
  • Change the design to “rolling” dunes – a series of successively larger dunes that work together to thwart storm surge, perhaps lowering height requirements. This seems to work well in other areas and I have seen this design used in North Carolina.
  • Change the design and move the dunes away from privately-owned land so the      easements won’t be necessary. This will increase the cost of the project because more sand will be needed, but I am not sure that homeowners will have much say if sand is piled up on government-owned land. Full disclosure: I am not sure if this solution still won’t result in some need for compensation.

The important thing is that we open our minds and seek better solutions. It seems to me that the rigid design parameters developed by the Army Corps of Engineers have created a legal nightmare (the lead case was recently argued before the New Jersey Supreme Court) and some flexibility might be in order.

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