In Minke Family Trust v. Township Of Long Beach, a New Jersey court recently addressed the authority conveyed to municipalities under the Disaster Control Act (DCA). The specific question raised in the suit is whether the DCA allows a municipality to record a deed of perpetual easement against a property before instituting a complaint for condemnation under the Eminent Domain Act (EDA).
The Facts of the Case
Plaintiff Minke Family Trust alleges that the adoption of Resolution 14-1006.01 (Resolution) by defendant, Township of Long Beach (Township), is arbitrary, capricious, and unreasonable because the shore protection provisions of the DCA do not authorize the Township to acquire a perpetual shore protection easement upon plaintiff’s property without complying with the requirements of the ECA.
The Resolution declares that the Township “has taken a perpetual and assignable easement and right-of-way” over plaintiff’s property pursuant to the DCA. It further states that the property owners “retain the right to obtain just compensation,” and that the government would “proceed under the negotiation and valuation provisions of the Eminent Domain Act of 1971” to set the value of the taken property and pay any just compensation due.
The plaintiff owns oceanfront property in the Loveladies section of Long Beach Island (LBI). The deed of perpetual easement is needed as part of a shore protection project for the construction of flood hazard risk reduction measures following Hurricane Sandy. The plaintiff’s suit requested the court to declare the Resolution invalid and order plaintiff’s property rights restored of record to the status quo ante.
The Court’s Decision
The court ultimately granted the plaintiff’s application for summary judgment.
As noted by Judge Vincent Grasso, the DCA authorizes a municipality to “enter immediately upon” a property “to take control and possession” of it when two criteria are met: (1) “there exists a threat or danger to life and property by reason of the damage to or the destruction of sand barriers and other natural or manmade barriers which protect the municipalities;” and (2) “it is necessary to the health, safety and welfare of the municipality to repair, restore, replace or construct such protective barriers.”
In this case, the court concluded that the potential of another super storm like Sandy constitutes an emergency contemplated for the purpose of the DCA and satisfies the above criteria. However, it nonetheless held that the DCA does not authorize the Township to effectuate a taking of plaintiff’s property and filing a deed of perpetual easement without instituting a condemnation proceeding pursuant to the Eminent Domain Act.
“If the Township wishes to acquire perpetual interests in plaintiff’s property for shore protection measures, it must adopt an ordinance authorizing the acquisition under the DCA and comply with the procedural requirements of the Eminent Domain Act. The fact that the DCA provides the right of the property owner to receive just compensation at a later date does not militate against this finding,” Judge Grasso explained.
For more information about the case or the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Government Law Group.