Mayor: Exercising Eminent Domain for Dune Project Puts Township at Risk

Eminent domain may not be an immediate option for Toms River in securing the easement rights from beachfront property owners to complete a substantial federal dune replenishment project. 

With the decision in a Harvey Cedars eminent domain case heard by state Supreme Court still forthcoming, Toms River officials don't want to subject the township to potential costly litigation. The property owners there were awarded $375,000 when a dune was constructed and blocked their view.

"We could not possibly expose ourselves to that damage determination," Mayor Thomas Kelaher said before the Township Council this week. 

The case was heard earlier in May and a ruling is pending, according to Kelaher. The result of the case could impact Toms River's plans to move forward with the Army Corps project, as so far Township Attorney Kenneth Fitzsimmons said that 17 of 34 beachfront property owners in town have signed easement rights.

"We're going to have to wait the outcome of [the Harvey Cedars] decision before we do anything further other than urge the holdouts to sign the easements," Kelahersaid. 

Following Superstorm Sandy, Toms River requested the easements so the U.S. Army Corps of Engineers can complete a major beach and dune restoration project from Manasquan to the Barnegat Inlet.

The dune project's design — which would include the construction of approximately 25-foot high dunes, 75 foot wide berms and 175 acres of dune grass in the project area — was completed in 2007, but has languished after some oceanfront homeowners refused to sign easements that would allow the work to be completed, and maintained in the future.

Officials have said that, had the Army Corps dune been in place, damage from Sandy would have been far less severe. 

Earlier this month, Kelaher—following the advice of Gov. Chris Christie—began "calling out" easement holdouts. The first named was John McDonough, owner of the Ocean Beach property on the barrier island where he leases homes. 

Securing easements is "an ongoing problem," Kelaher said. "This is probably the most frustrating thing that I've been involved with in my life."

McDonough—who did not return repeated requests for comment about the township's holdout naming campaign—appeared in an NJ.com video last month and gave his stance on granting the government the rights to complete the dune project. 

"I think we have a problem with giving private property to the government, and that's what you're asking us to do by giving it to the town or the Army Corps of Engineers," McDonough said in the video. "This is private property. We feel we know what's best to do with our private property and we're willing to pay for what's being done on our beach.

Kelaher said that he has fielded "a number of inquiries" from the public asking why the township doesn't go the route of eminent domain. 

"The township would be legally eligible to do that," he said. But, as the Harvey Cedars case shows, it is a legal and financial risk that Toms River—which just introduced its first post-Sandy budget—cannot afford right now. 

U.S. Rep Jon Runyan (R-3) wrote to the mayors of a number of northern Ocean County municipalities in March urging them to secure all necessary easements for the massive dune and beach project by May 1, the date the Army Corps of Engineers must submit a work plan to Congress.

Kelaher said earlier in May that those refusing to grant easements are committing a "total disservice" to those who live to the west.

"The failure to build dunes is a threat to other residents who want to rehabilitate their homes," he said. "I’ve already spoken to the governor and we’re determined to take all necessary steps to enable the USACE to proceed with their project."