Ocean County condo owners get $4.7M after NJ only offered $500 to seize their sand dunes

BERKELEY - The New Jersey Department of Environmental Protection must pay $4.7 million to Midway Beach Condominium Association, after an Ocean County jury ruled July 26 the group was not properly compensated for the state's taking of beachfront property for a dune construction project.

The state seized the property in 2017, as part of a storm protection plan following Superstorm Sandy under which the U.S. Army Corps of Engineers built 22-foot dunes and expanded beaches from the Manasquan to Barnegat inlets. Midway Beach, which includes about 400 small beach bungalows, resisted the Army Corps project, arguing that its own 25-foot-high dunes had protected the seaside neighborhood from flooding during Sandy.

Unlike many surrounding areas, Midway suffered almost no damage from 2012's Sandy.

The property owned by Midway included a preexisting sand dune and berm storm protection system which was created decades ago by the community, which regularly maintained the storm system by building and renourishing a sand dune, which exceeded 25 feet in height and more than 80 feet in width. That was higher and wider than the specifications for the dune to be built by the Army Corps.

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Midway also regularly planted dune grass and other vegetation in the dune area and regularly used recycled Christmas trees at the base of the dune to anchor new dune growth. The DEP’s dune project was constructed in 2019 and 2020 in Berkeley Township but, because of the preexisting dune, did not require any additional work to be performed at Midway.

In 2017, Ocean County Superior Court Judge Marlene Lynch Ford ruled that the state could move forward with seizing about six acres of Midway Beach's property through eminent domain.

The judge said she was obligated to determine whether the state demonstrated bad faith, fraud or other malfeasance in deciding to seize the land, finding no evidence of any such conduct. She ruled in favor of the state in numerous other dune condemnation cases, upholding its right to use eminent domain to seize land for a publicly beneficial project after paying fair compensation for it.

A state appraiser determined the land is worth $6.6 million; the state offered $500 for it, citing the storm protection benefits the project would bring.

Midway’s real estate appraiser estimated that the value of the land taken by DEP from Midway was $4,690,000.  DEP’s appraiser had estimated that the beach area at Midway was worth in excess of $6,600,000, but contended that Midway was not entitled to be paid for that value due to the presumed “benefits.”  The jury rejected the DEP’s position and endorsed Midway’s.

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Midway’s attorney is Anthony Della Pelle, of the firm of McKirdy Riskin Olson & DellaPelle, which has represented many other oceanfront owners who lost property due to the DEP’s storm protection project in Ocean County and in other shore communities.

Of the recent verdict in favor of Midway, Della Pelle said that the jury’s verdict was “a bittersweet victory,”  because the association had always wanted to provide its own storm protection as it had done in the past, but since it was unsuccessful in stopping the taking of its property, the association was satisfied that the jury verdict recognized that the state had to “pay for what it took” from Midway.

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Jean Mikle covers Toms River, Seaside Heights and several other Ocean County towns. She's also passionate about the Shore's storied music scene. Contact her: @jeanmikle, jmikle@gannettnj.com.

This article originally appeared on Asbury Park Press: Ocean County condo owners get $4.7M after NJ only offered $500 to seize their sand dunes