No, thankfully this post is not about the MTV show, but who owns the new dry sand created when the government "replenishes" beaches. In a case reminiscent of the U.S. Supreme Court's decision in Stop the Beach Renourishment v. Fla. Dep't of Envt'l Protection, 130 S. Ct. 2592 (2010), the New Jersey Supreme Court unanimously concluded that a beachfront property owner was not entitled to compensation for the city's taking of his property -- a beach created by the city's beach replenishment program -- because the replenished beach was a common law "avulsion" and therefore belonged to the public.
In City of Long Branch v. Liu, No. A-9-09 (Sep. 21, 2010), as part of a redevelopment project, the city condemned littoral property owned by the Liu family. The parcel was described by metes-and-bounds, with the easternmost boundary being described as the "high water mark of the Atlantic Ocean." Slip op. at 5. "However, by the time the City initiated its condemnation action in May 2001, the Lius' beachfront had increased by more than two acres from the description given in the 1977 deed, and the prior mean high water mark was approximately 225 feet inland," because earlier, the federal, state and local governments had completed a beach replenishment. Slip op. at 5 (footnote omitted). In other words, the government had dumped tons of sand in front of the Lius' property, adding a new two-acre beach where before there had been only ocean.
The Lius asserted that as the littoral owners, they owned the replenished beach, and argued they should be compensated in the eminent domain proceeding for its value. The trial court concluded that the artifical beach was an "avulsion" on state-owned land seaward of the mean high water mark, and that under common law principles, the public and not the Lius, owned the new beach. In an unpublished decision, the Appellate Division affirmed but on different grounds: the property owners should not be able to reap the private benefit of an enhancement to the value of their property because a public agency had spent public money for the restoration project. The New Jersey Supreme Court granted review.
In its opinion, the court returned to common law principles, concluding that the beach created by the replenishment program is public property because it is an avulsion on submerged land which is owned by the public under the public trust doctrine. The mean high water mark is the littoral boundary line between public and private property, generally. The court contrasted accretion and erosion (the gradual an imperceptable growth or shrinkage of littoral land) with avulsion (swift and dramatic changed due to natural forces or artificial means).
Littoral owners gain accreted land and lose eroded land, but the right to accretion was always subject to the avulsion doctrine, meaning that nature or the government could decide to dump sand seaward of the mean high water mark, and there was't much a private littoral owner could do about it, even though the avulsion replaced the ambulatory mean high water mark as the public-private boundary with a fixed boundary (the mean high water mark just prior to the avulsive event). As the court put it, "[t]he prior mean high water mark remains the demarcation line between the property rights of the oceanfront owner and the state." Slip op. at 14 (emphasis added). The court noted that avulsion works both ways, and if a hurricane suddenly washes away 100 feet of beach, the littoral owner would still have title to the former mean high water mark. Slip op. at 16.
The court rejected any distinction between artificial and natural causes for avulsion. The court also rejected that private littoral owners have a right to have their land have "direct contact with the water." Slip op. at 21 (footnote omitted). "That approach," the court concluded, "is untethered to traditional common-law principles governing littoral property -- in particular, the doctrine of avulsion -- and would be contrary to the public trust doctrine." Id.
The court held that property owners should be thankful for the state protecting their land by creating public land seaward of their properties (littoral owners retain the right, like everyone else, to access the ocean):
Moreover, natural equity is hardly a concept to be invoked by a property owner who is asking to be compensated in a condemnation action for new beachfront property created by a taxpayer-funded beach replenishment program. The primary purpose of the program is to protect the shoreline -- public beaches and private beaches -- from erosion. Logically, if the Army Corps of Engineers did not create more than two acres of new beach -- extending the dry sand 225 feet seaward from the Lius’ property -- the natural process of erosion would have eaten away dry sand already enjoyed by the Lius. The beach replenishment program erected a buffer protecting the Lius’ property, and therefore the Lius were a direct beneficiary of the work undertaken by the Army Corps of Engineers. But the public benefits too because the prior mean high water mark results in approximately 225 feet of dry sand falling within the
public trust doctrine.
Slip op. at 21-22.
In a nod to the oral arguments in Stop the Beach Renourishment (where the justices and the advocates debated the location of hot dog stands -- Supreme Court arguments are soooo scholarly at times) the New Jersey court noted that the "City appears to concede that concession stands and other structures could not be erected on the new dry sand -- held in trust for the public -- that would interfere with the upland owners' enjoyment of their property. Thus, hot dog stands and other such commercial ventures -- even by the City's reckoning -- would be forbidden on the dry sand abutting the upland owners' property." Slip op. at 25.
Finally, the court concluded that the jury's valuation for the furnishings, fixtures, and equipement that was taken in the condemnation would not be disturbed, even though the jury rejected the evidence of value testified to by appraisers for the city and the property owners. While a jury's view of value is not "sacrosanct," it is entitled to a great deal of deference, and the court saw no reason to overturn it and order a new valuation trial. Slip op. at 36.
The court summed up its holding:
In summary, in this eminent domain action, the trial court properly determined that the expanded dry beach (previously tidally flowed) that was produced by the government-funded beach replenishment program fell within the public trust doctrine and was not the property of the upland owners, the Lius. Therefore, the Lius were not entitled to compensation for property they did not own.
Slip op. at 38. Here are some takeway points:
- In New Jersey, the government can dump tons of sand seaward of littoral property and radically change existing property lines. Thankfully, there's no "Givings Clause," so at least the government can't seek compensation from ungrateful property owners who may not see the value of beach replenishment programs.
- There's no absolute right to have littoral property remain in contact with the ocean, nor is there a right to an "ambulatory" boundary. "Sudden and dramatic" rules over "gradual and imperceptible." Ninth Circuit, are you listening?
- There's no legal distinction between "artificial" and "natural" avulsion (or, presumably, between artificial and natural accretion or erosion). It just is. Hawaii Legislature and Supreme Court, are you listening?
Our thanks to colleagues Dwight Merriam and Richard Hluchan for the heads-up on this decision.
