Judge rejects fears of state business seizure in dune cases
A New Jersey judge rejected fears by private beach operators that the state's seizure of part of their sand for a storm protection project will also enable the state to seize their businesses.
In two cases decided Friday, Superior Court Judge Marlene Lynch Ford sided with the state Department of Environmental Protection, which is using eminent domain condemnation proceedings to acquire land for a protective sand dune project along most of the state's 127-mile coast.
New Jersey's Republican Gov. Chris Christie began the dune program months after Superstorm Sandy pummeled the coast in 2012. In nearly every case to make it to court, a judge has upheld the state's right to proceed with the work.
The judge appeared sympathetic to claims by the privately owned Risden's Beach that giving the state an easement to do the work would also enable it to seize the company's business at any time.
But she noted that the state has indicated it has no intention of seizing the beach unless its owners no longer offer public access.
The judge also sided with the state against a private entity that runs Bay Head's public beaches, which raised the same issues.
Risden's owns its beach in Point Pleasant Beach, but has operated it as a commercial beach, open to the public in return for beach badge fees, for 70 years. The company's lawyer, John Buonocore, said Risden's does not object to the construction of the protective dunes, but vehemently objects to giving the state the right to operate a public beach there, which he said would seize and ruin the company's valuable, privately run business.
"This is a taking of someone's livelihood when there's no need for it," he said. "What we don't want to is to work for you as your employee or slave."
The judge expressed concern with the state claiming the right to usurp a privately owned, thriving business. But she also noted that there is ample language in state court filings indicating that New Jersey has no plans to do so, at least anytime soon.
Brian Keatts, an attorney for the DEP, said the only situation under which the state would use its right to operate a public beach is if Risden's one day decided to place its sands off-limits to the public. Despite the company's offer to execute a deed restriction making the beach open to the public forever, the state insists on language giving it the right to operate a beach because such a move may one day be needed if public access is withdrawn by its private owners.
The judge also sided with the state in two other cases Friday in which a beachfront condominium association and a private oceanfront homeowner raised the same objection to the state's seizing the right to operate a public beach on their land.
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