The people of Margate City, New Jersey, voted to say "no thank you" to building dunes on the beach to limit damage in the event of another hurricane like Sandy were to hit.
But the State of New Jersey decided to do it anyway, and issued an administrative order "taking" an easement. Problem is, the State didn't bother to actually go through the trouble of condemning the easement. Instead, "Bob Martin, Commissioner of the New Jersey Department of Environmental Protection," declared:
1. The New Jersey Department of Environmental Protection Office of Floor [we assume that was meant to be "Flood"] Hazard Risk Reduction Measures hereby immediately enters upon and takes real property interest(s).
Just like that.
The City didn't appreciate having its beach summarily taken, and filed a complaint in federal court against the Corps of Engineers and the state, and even got a TRO temporarily halting the Corps and the state from doing anything more until the court held a hearing on the city's motion for injunction, which was heard yesterday.
So we were reading this story ("Federal judge to decide if N.J. DEP violated owners' rights in beach replenishment project"), when this one ("Margate beach replenishment can start, but state must follow proper procedures, judge says") popped up in our feed. So rather than read secondhand reports of the court's opinion, we decided to go to the source, the District Court's opinion itself.
The district court denied without prejudice the plaintiffs' motion for preliminary injunction, concluding that they were likely to succeed on their claim that the summary taking order deprived them of their Due Process rights to have the public use of the taking adjudicated in New Jersey's eminent domain process. However, the court also determined the required "irreparable injury" wasn't there (at least not yet), because all that is going to happen now is an award of a contract for the replenishment project, not the actual building of the dunes:
As discussed at length above, a state’s power to take property from a private person is not without constitutional limitations. A property owner must have an opportunity to be heard before the final determination of whether the taking was for a public purpose. NJDEP has agreed that it will afford Plaintiffs such opportunity by filing a condemnation proceeding. Before then, the parties do not anticipate that any construction will occur. Hence, Plaintiffs will be afforded their due process rights without the fear of imminent construction. Accordingly, this factor does not weigh in favor of an injunction at this time.
Slip op. at 28-29 (emphasis original).
The entire opinion is worth a read, especially pages 11-24, the part which analyzes the merits of the Due Process claim, and contains these gems, and more:
- "The role of a court is to decide whether, and to what extent, the public use and just compensation limitations of the Takings Clause trigger procedural due process rights." Slip op. at 13.
- "Plaintiffs allege that Defendants have
unconstitutionally denied them the opportunity to challenge
Defendants’ final determination of a public use taking, i.e.,when NJDEP declared the “taking” by Administrative Orders,
failing to comply with the procedures set forth in the EminentDomain Act." Id. at 14.
- The Second Circuit’s decision in Brody is instructive. Much like Defendants here, the municipality in Brody argued that the adjudicative nature of a just compensation determination triggered the full panoply of due process rights. The public use determination, the municipality argued, was essentially a legislative decision not subject to the requirements of due process. The Second Circuit disagreed, explaining that the issue is whether due process attaches to a proceeding established to allow aggrieved persons to assert a constitutionally prescribed limitation on a legislative action, i.e., the review procedure for challenging a public use determination made pursuant to New York’s Eminent Domain Procedure Law." Id. at 16.
- "Both NJDEP and the Corps persistently argue that Plaintiffs will have an opportunity to be fully compensated through a later condemnation proceeding. Defendants miss the constitutional point." Id. at 18.
- "This is not the first time the NJDEP has refused to follow the procedures set forth in the Eminent Domain Act." Id. at 20.
- "Defendants make much of the argument that Margate has acted in defiance of the Executive Order. Defendants doth protest too much. As discussed above, the Executive Order, issued almost 1 ½ years ago, directed NJDEP to 'coordinate those legal proceeding necessary to acquire the necessary easements or other interests in real property.' Yet, to date, NJDEP has failed tocommence/coordinate any legal proceeding with respect to Margate, instead forcing Plaintiffs to seek refuge and protection of their due process rights in federal court. Had NJDEP timely complied with Executive Order 140 and filed the condemnation proceeding, Plaintiffs would have long had the constitutional process that was due." Id. at 21-22.
More to come.
Opinion, Margate City v. U.S. Army Corps of Engineers, No. 14-7303 (D. N.J. Jan. 15, 2015)
