Shame On You! Hand Over That Dune Easement!

This blog post is the second in my series of four this month on coastal land management and disaster. It will be just a bit shorter than the last, and focuses on the efforts of one among several Jersey Shore beach communities, Long Beach Township, in Ocean County, to use shame as an incentive and punishment for beachfront property owners who have refused to negotiate easements necessary for a protective beach and dune restoration project.

First, some background. New Jersey has something like 127 miles of Atlantic Ocean shoreline – barrier islands, marshes, and inlets. All of its length is developed, with few exceptions. This practice of barrier island development goes well back into the 19th century. Long Branch, in Monmouth County (not to be confused with Long Beach), called itself the “home of Presidents”. It became accessible by rail early on, and seven nineteenth-century presidents summered there. One, James Garfield, died there, after he was shot and taken there for what turned out to be some very bad medical treatment.

Apart from the results of a few episodic impulses to preserve (among them Island Beach State Park and the Sandy Hook element of the Gateway National Recreation Area), all the rest of the buildable New Jersey shore is built. And how! There are the more exclusive enclaves, and also towns with beaches that are narrow and crowded and commercial. In most places you have to pay to get onto the beach. To the chagrin of many a first-year property student, there’s a whole case law and scholarly literature about beach access below the mean high tide line and the public trust doctrine, centered on a series of New Jersey cases. More exclusive towns still try various stratagems to exclude outsiders (What, no all day parking? No changing facilities?). Other towns just let outsiders in as daily visitors or weekly renters and take their money.

For protection against storms, much of the Jersey Shore has been reinforced with hard structures such as sea-walls and groins, which project out into the ocean and supposedly prevent sand from migrating down current. Coastal geologists generally consider what has happened in New Jersey a very bad way to manage beaches on barrier islands. It just fosters erosion and imperils structures that shouldn’t have been built there anyway. Beaches gotta move. See, e.g., Wallace Kaufman & Orrin H. Pilkey, Jr., The Beaches Are Moving: The Drowning of America’s Coastline.

Hurricanes and nor’easters, coastal erosion, the appearance and disappearance of inlets and, lately, sea level rise, are all the enemies of the towns on the New Jersey shore, to varying degrees. This may have first become apparent in modern times when a 1962 storm devastated Harvey Cedars, also in Ocean County. Previously, some early famous storms of historic proportions in other parts of the country were regarded as outliers–the 1900 hurricane that killed more than a thousand people on Galveston Island, Texas; and the 1938 hurricane that ripped across the middle of Long Island and up the Connecticut River Valley. The National Flood Insurance Program (NFIP) was established in 1968, spurred by the devastation wreaked by Hurricane Betsy in 1965 (though residents of Harvey Cedars believe that their 1962 experience was the initial impetus for NFIP; and it certainly shifted local building codes). Nowadays, as we construct and then rebuild more and more houses in storms’ way, and with the advent of climate change bringing on sea level rise and more frequent and more violent stormy weather, it is increasingly evident that something needs to be done.

One development (sounds the bugles, the federal government is coming to the rescue) is the Army Corps of Engineers’ beach replenishment project. They’ve now dammed just about everything they could. They needed some new project, preferably one that they could do over and over. Widen the beaches, build up the dunes, and when bad weather comes it won’t be so bad. There are some significant problems with the concept of beach replenishment, not the least of which is that (believe it or not) in some areas we’re going to run out of sand, because sand washes not only offshore but sometimes down into such deep water that it is irretrievably lost. Like most natural resources other than sunshine, there are limits to the supply of sand. And rebuilding beaches can change the way the way the waves break, which ticks off the surfers. (Yes, there is a substantial surfer community at the Jersey Shore. Come on down.)

Nevertheless, as long as folks are building and living and summering at the Jersey Shore, those homes and commercial centers do need to be protected. One way to do this is to construct wide beaches and dunes, which, when intact and continuous, form a natural system that buffers barrier islands against storms. Problem is, the natural system tells you where to put the dunes and doesn’t acknowledge property lines or aesthetic considerations.

That brings us back to the specifics of dune construction in Long Beach township and other Jersey Shore communities. Working with the Corps, a number of New Jersey beach towns have sought for a number of years to gain protection through beach restoration, including those dunes. Standard height is 22 feet. But the property owners bought those lovely and expensive shorefront homes and lots for the view–not to look at a dune, or worse, a dune with a public access easement on it and heaven knows who sunning her/himself or playing beach volleyball or drinking. Consequently, in various New Jersey municipalities, there has been an ongoing battle over getting the requisite consent to easements from all property owners for the beach and dune projects that will be necessary, sooner or later, to protect the community. If a few refuse, there are gaps in the protection, and sooner or later, uh-oh. As happened with Superstorm Sandy in October, 2012.

One obvious tactic to deal with those holdouts is eminent domain, of course. Using eminent domain for dune easements has had its own problems, as I will relate in as subsequent blog post about Borough of Harvey Cedars v. Karan (N.J. July 8, 2013). Long Beach Township and some other Shore towns took a different tack, however. When a substantial number of property owners declined to cooperate, even though most shorefront owners in each town did choose to cooperate, Long Beach eschewed eminent domain. Instead, it sought to shame the recalcitrant property owners into agreement. At first, it published on the town website the names of non-cooperators, and urged others in the community to take note. More recently, it has urged merchants in the town not to do business with the noncooperators. A recent New York Times article describes this activity. Kate Zernicke, Trying to Shame Dune Holdouts at Jersey Shore, N.Y. Times, Sept. 5, 2013. Zernicke reports that there are about 1000 holdouts over the length of the Jersey Shore, with about 50 still in Long Beach. That’s even after Superstorm Sandy. When it comes to property, people can be so stubborn!

What kind of approach to land use is this, one might ask. (1) Is it an appropriate tactic? (2) Is it constitutional?

To take the second question first, it seems to me that publishing true information about this kind of behavior is on the good side of Due Process concerns as articulated in Wisconsin v. Constantineau (1973) and Paul v. Davis (1976). Refusal to agree to allow a dune to be built on one’s property seems pretty factual and clear-cut. It’s not about intent or culpability. It’s not about true but intimate personal facts that one might wish to remain private. It’s just a list of those who haven’t made deals. Yet. Anyone have thoughts here? According to Zernicke, the towns that resorted to shaming have received cease-and-desist letters from attorneys representing the holdout property owners, and have ignored them.

Why would Long Beach and other Jersey Shore municipalities resort to shaming? Some holdout homeowners in one of the shore municipalities–the aforementioned Harvey Cedars–won big eminent domain awards for their dune easements. The first of these, in 2008, was compensation in the amount of $480,000.  It shocked everyone. In the case that the New Jersey Supreme Court just reversed, Harvey Cedars v. Karan (N.J. 2013), the initial award was $375,000. With that kind of compensation possible, you are going to wind up with a whole lot of holdouts. Municipalities will not be able to afford to buy them out, either.

Why isn’t the state involved, since this is a coordination problem of large scale and importance? Well, now it is, as I’ll discuss in a forthcoming post. See N.J. Exec. Order 140 (Sept. 25, 2013).

The question of principle is this: Is shaming unusual for land use management? Why, not at all. Elinor Ostrom and her crowd, and others independently, discuss all manner of informal community-generated sanctions to rein in the wayward harmful behavior of neighbors and enforce informal norms of property allocation and use. Shaming is certainly less harsh than vandalism (put your lobster pots it the wrong location and someone will cut your lines; park in the wrong parking spot cleared on a snowy street and someone will smash your windshield). If embarrassment can be deployed to get neighbors to keep their gardens neat (Nicholas Blomley, a Canadian geographer, has interesting things to say about this), why can’t embarrassment be deployed to shame neighbors into allowing a public works project to encroach on their property–especially one that benefits them, as well as others. The public listing of noncooperators isn’t encouraging trespass, the fountainhead of a physical takings claim. It’s just encouraging the community to shun non-cooperators. How about that?

So much for this installment of coastal land use and Stupid-A** Land Use Decisions (SALUD). I look forward to your thoughts. Do come back for parts three and four in the last part of the month. Meanwhile, stay dry. SALUD!

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