Harvey and Phyllis Karan have lost their bid to receive $375,000 in compensation for the loss of some rights to a portion of their oceanfront property, taken away as part of a federal beach-replenishment program. The decision in the case (see "Borough of Harvey Cedars v. Harvey Karan and Phyllis Karan") clears the way for town and state agencies in New Jersey to acquire easements from property owners all along the New Jersey barrier island system for the construction of a proposed protective dune that policymakers say would have prevented much of the damage done by Hurricane Sandy last year, had the full barrier been in place when the storm arrived.
The Asbury Park Press has the story ("Supreme Court: Beachfront owners can't cash in on protective dunes," by Nicholas Huba). "The state Supreme Court Monday nixed a $375,000 jury payout to Harvey and Phyllis Karan, a Harvey Cedars couple who own an oceanfront home, for a claimed loss of property value caused by a $26 million federal beach-replenishment project completed in 2010. A 22-foot-high dune was built in front of their house," the paper reports. "The high court in a unanimous decision sent the case back for a second trial, but said the new jury must balance the loss of property value — in this case the Karans' ocean view — against the benefits of having the publicly funded dune protect their home from future storms."
The dune obscured the Karan's view of the ocean from all but their topmost windows. However, it also protected the $1.7 million home against the fury of that ocean when Hurricane Sandy struck, saving the structure from being flooded and destroyed. The Karan's lawyer had argued that the benefits of the dune were spread among all the homeowners behind it, not just the Karans — and that those other homeowners did not share in the cost shouldered by the Karans in losing the view from their ocean-facing lower windows.
But the court ruled, ""The Karans are entitled to just compensation, a reasonable calculation of any decrease in the fair market value of their property after the taking. They are not entitled to more, and certainly not a windfall at the public's expense."
In the original trial, the judge had instructed the jury not to consider any benefit to the Karans from the dune project — only the cost. Now the Karans will get a new trial, where the jury will have to balance the up side of the dune against its down side. But the fact that the dune actually saved the house last year is likely to weigh heavily in the jury's mind.
Yahoo News carried this Associated Press report: ("NJ court overturns award for view lost to dune," by Wayne Parry). "Had we lost this case, I think beach replenishment would have been (over) in New Jersey," Harvey Cedars Mayor Jonathan Oldham told the AP. "We're very pleased with the court's ruling and look forward to competing with a fair set of rules. I'm happy for the whole island."
Bulldozers construct artificial dune barriers along the shore between the Atlantic Ocean and the town of Mantaloking, N.J., on June 27. Most of Mantaloking’s houses were damaged or destroyed by Hurricane Sandy flooding, but some landowners there are fighting a state and federal project to protect the town and surrounding towns from future flooding by constructing high dunes. Below: a newly rebuilt house peeks over the top of an artificial dune. Bottom: A Mantaloking oceanfront home still in ruins from Hurricane Sandy storm surge flooding. (Photos by Ted Cushman)