| At the center of the debate is a 1993 dune construction project along seven miles of beachfront in Ocean City, New Jersey. |
The award of $37,001 plus interest to a New Jersey beachfront property owner whose property was impacted by a beach nourishment project is raising questions in that state about the value of an ocean view. While there is disagreement among attorneys as to what the implications of the New Jersey Superior Court decision actually are, a growing number of the state's property owners are weighing in on the importance of an ocean view versus dunes and a sandy beach.
At the center of the debate is a 1993 dune construction project along seven miles of beachfront in Ocean City, New Jersey. When the property owner, Louis Spadaccino, refused the $1 the city was offering to purchase an easement across his land for the project, Ocean City instituted a condemnation action for the easement.
"As a result of the dune project, the view of the ocean from the Spadaccino's [first-floor] condominium has been completely obstructed and direct access to the beach has been eliminated," writes the Superior Court of New Jersey Appellate Division in its opinion supporting a jury's decision to award the homeowner $1 for the easement and $37,000 in severance damages.
Whether the loss of view and direct access to the beach were the primary reasons for compensation is debated among the parties involved; however, property owners in at least one New Jersey community have since challenged a proposed beach nourishment project over concerns about the impact on their views.
No prior New Jersey case expressly addressed the question of whether the loss of ocean view and access are elements for which severance damages may be awarded.
Point, Counterpoint
The case, state coastal resource managers say, does not generate any new legal concerns that could impede future beach nourishment projects. The problem, they say, is that some beachfront property owners have the "perception" that it has.
"It does not create a general entitlement to compensation for views diminished from shore protection projects," says Bradley Campbell, commissioner for the New Jersey Department of Environmental Protection. "It has generated expectations among some property owners and communities, who are certain to be disappointed when projects proceed and compensation is not forthcoming."
While the loss of view and access were considered by the court, the "real loss of value that the court felt should be compensated" was caused when the easement and dune "severed" the property, which Spadaccino owned down to the water line, Campbell says.
"It wasn't just the view," says Ruth Ehinger, manager of the New Jersey Coastal Management Office. "Their property was cut in half by the dune."
Gerald Corcoran, the attorney representing Ocean City, sees the case a little differently. "The legal question," he says "is whether or not someone who alleges loss of view and direct access to the beach is entitled to recover from those alleged damages. We argued they shouldn't be because the public interest of the beach replenishment project outweighed the local and personal loss of view, which were not significant. We lost."
He adds, "Certainly in New Jersey it demonstrates that if you have beachfront property, you may be entitled to recover severance damages for loss of view and access. This is a consideration governments should be aware of."
Kenneth Porro, an attorney representing Spadaccino, agrees that communities need to be aware of the case, but citing an expert who testified during the jury trial, he disputes the protection that dunes are reputed to provide to homes and businesses during severe storms. "People still believe dunes protect your property from flooding. They do not, according to our expert," he says.
But while other property owners "want to jump on the bandwagon" to protect their views, Porro says the only cases he believes will be successful will be those filed by property owners who, like Spadaccino, have riparian rights down to the waterline.
Eye of the Beholder
Whatever legal ramifications the case may or may not have, Spadaccino says that for him the loss of view was the issue.
"It was 1,000 percent about the loss of view," says Spadaccino, whose primary residence is in Pennsylvania. "I didn't want the money. I wanted my view back."
The view, he says, was the reason he and his wife purchased the first floor of an older, two-story duplex that had little elevation. "It was gorgeous. It had a deck in the back and a bulkhead, and you walked down four or five steps onto the beach and to the water." Spadaccino notes that this ease of access was important because his wife could no longer negotiate stairs well.
Five years after purchasing the property, Spadaccino says the city notified him of the beach nourishment project. Concerned about the impact the dunes would have, he contacted several neighbors about taking the city to court. "They all said, 'Lou, you can't fight city hall.' Nobody wanted to join in."
Spadaccino pursued the case on his own.
Public Benefit
The replenishment project was necessary, says Ocean City's attorney, Corcoran, because of long-term erosion problems. Severe storms in 1991 and 1992 washed away portions of the community's boardwalk, and damaged businesses and homes.
"Now there's a big dune in front of those homes, and they have more protection," Corcoran says. "What you have to ask is not what the individual property owner wants, but what is in the public interest. . . What's more important, a person having a view or protection of property? That's the philosophical question. I know where I come down."
"I never had a problem" with flooding or erosion, Spadaccino says. "Should I compensate the people up there who did?"
Bringing in the Sand
To undertake the city's first public beach nourishment project in at least 30 years, the U.S. Army Corps of Engineers and state Department of Environmental Protection required the city to either obtain the title or easement to about 200 parcels of land where sand and dunes would be placed. An appraiser determined the easements were worth $1.
The city was "very successful" at securing the easements with only 10 to 15 people refusing. In those cases, the city exercised its right of eminent domain and condemned the easements for the sand and dune system, but did not take any other property rights away. Corcoran explains, "When all is said and done, the property owner continues to own the area and we just have an easement."
All but one case was settled during the condemnation hearings. Spadaccino took his complaint to the New Jersey Superior Court.
In the Courtroom
In the suit, the Spadaccinos "claimed that the easement damaged the remaining part of their property and diminished its market value by $100,000," writes the Superior Court Appellate Division.
In a case of dueling experts, court documents note, the jury heard from the city's real estate appraiser that "beach view and access rights have no value," and that "loss of riparian rights did not devalue the property."
A real estate expert testifying on behalf of Spadaccino determined the loss of value on "four things: loss of view, loss of direct beach access, loss of use, and loss of privacy." He assigned the loss of view at 60 percent of the lost value, loss of access at 20 percent, and the loss of use and loss of privacy at 10 percent each.
The jury ruled in favor of Spadaccino. Ocean City appealed the case to the New Jersey Superior Court Appellate Division and lost. The court writes in its opinion that the "loss of ocean view and access are elements for which severance may be awarded. While no New Jersey case has had occasion to render such a ruling, the application of the standards governing partial takings leads inevitably to this conclusion."
The Aftermath
"We were very fortunate," says Corcoran. "In Ocean City, we acquired an awful lot of beach that was in private ownership that is now in public ownership. We don't have to repeat this process."
He adds, "When you look at the big picture, we paid one property owner $37,001. We were pretty successful."
In other communities, some residents may be less willing to accept beach nourishment projects.
"There has been an increasing tendency for a minority of property owners in a community to oppose shore protection projects largely on the basis that dune accretion, which is one of the essential benefits of a shore protection project, interferes with their views," acknowledges Bradley Campbell.
Residents in one New Jersey community were so concerned about the loss of views that might be caused by a nourishment project that they recently held a referendum to vote on the issue. "Those who wanted shore protection prevailed and that project is proceeding," says Campbell.
He adds, "Over the long term we're hoping property owners will see the practical value and the aesthetic value of a dune view as much as an ocean view."
"People don't want dunes" says Kenneth Porro. "The perception is that these walls of sand protect us, and what they really do is just replenish the beach. . . These people would rather have water up to their bulkhead than have dunes."
Spadaccino says he uses his beach property much less than he did before the nourishment project, and feels the jury should have awarded him more money for his loss of view and access. In the end, however, he's just "glad it's over. I had enough of it."
To read the Superior Court of New Jersey Appellate Division's opinion in the case, point your browser to http://lawlibrary.rutgers.edu/courts/appellate/a5224-97.opn.html. You may also contact Ruth Ehinger at (609) 292-2662 or Ruth.Ehinger@dep.state.nj.us, or Gerald Corcoran at (609) 645-2201 or gcorcoran@yclegal.com. Kenneth Porro can be reached at (201) 531-8989.
