It Wasn’t Yours to Begin With: New Jersey Supreme Court Holds That City Need Not Compensate Beachfront Condemnee for Land Created by Beach Replenishment Project

As discussed in a recent post, beaches have a way of generating difficult cases about when land-use regulations result in a compensable “taking” of property. A new opinion from the New Jersey Supreme Court reminds us that things can be just as complicated when the government takes beachfront property the old-fashioned way, via eminent domain. In City of Long Branch v. Liu, the Court held that the condemning municipality did not have to compensate the owner for land that was created by a government-funded beach replenishment project and appeared to expand the original parcel.

An Eminent Domain Case — With a Twist

Under a redevelopment plan adopted in 1996, Long Branch sought to acquire an oceanfront parcel owned by Jui Yung Liu and Elizabeth Liu. The parties could not agree on a price, so in 2001 the city filed a complaint to take the property via eminent domain. The complaint used a property description from the Lius’ 1977 deed, which noted that the property extended to the mean high water mark.

So far, it’s a routine eminent domain action. But the Lius’ property — or at least what they thought was their property — had changed quite a bit in the intervening years. In the 1990s, the federal, state, and local governments had conducted a multi-million dollar beach replenishment program to protect shore communities. For two weeks, the Army Corps of Engineers dumped sand along the shoreline where the Luis’ property faced the Atlantic Ocean. As a result, dry sand now extended an additional 225 feet seaward of the mean high water mark described in the 1977 deed. In all, the project created more than two acres of dry sand. The Luis claimed title to the new land, and moved to amend the city’s complaint. Both the trial court and the Appellate Division rejected their request, and the Supreme Court granted certification to consider whether the Lius were entitled to compensation for the land created by the beach replenishment project.

Not a Public Trust Case, But a Public Ownership Case

The Court introduced its analysis with a discussion of the public trust doctrine — an ancient doctrine with roots in Roman law under which the State holds title to tidally flowed lands in trust for the people — but rested its decision on the basis of familiar common-law concepts. Beginning with the principle that the State “owns in fee simple all lands that are flowed by the tide up to the high-water line or mark” — with the littoral owner holding title to the land upland of the mean high water mark — the Court was called on to decide who owned the new dry land that now sat where the State-owned tidally flowed land used to be.

The Appellate Division had ruled against the Lius on public policy grounds, concluding that the Lius should not reap the benefit of the government-funded beach replenishment program. The Supreme Court took a different tack, and applied the traditional common-law doctrines of accretion and avulsion, which go back just as far as the public trust doctrine.

Of Accretion, Avulsion, and Moving Lines

Accretion adds sand or other deposits to the shoreline gradually and imperceptibly, such that the change is apparent only after a long period of time. (Erosion is the opposite of accretion.) In contrast, avulsion is the sudden and perceptible addition or loss of land. The distinction between those processes has important legal ramifications. Under the common law, the oceanfront owner takes title to dry land added by accretion, and loses (to the State) title over land that becomes tidally flowed due to erosion. That is, with accretion or erosion, when the mean high water mark moves, the dividing line between public and private property moves with it.

The common-law rule for avulsion is entirely different. Where an avulsion produces a sudden gain or loss of dry land, the original demarcation line between public and private property does not shift; the “old” mean high water mark remains the dividing line.

The Supreme Court agreed with the Law Division’s finding that the rapid change in the Lius’ shoreline over a two-week period constituted an avulsion. Therefore, the Court concluded, the two acres of new dry land that was created by the beach replenishment project already belonged to the State. The Lius’ property ended at the “old” high water mark, even though the new high water mark was 225 feet away, and the Lius were not entitled to compensation for land they never owned.

What’s a Beachfront Owner to Do?

The Lius had claimed that accretion, not avulsion had created the new dry land, but could not make that showing. Although the law usually presumes accretion rather than avulsion, that presumption is overcome where the evidence sufficiently shows an avulsion. With the presumption gone, it was up to the Lius, as the parties in the best position to know how and when the shoreline had changed, to bear the burden of proving that the change was the result of accretion.

The case breaks no new legal ground, but does send a strong message to owners of beachfront property about the need to monitor changes in the shoreline. What could the Lius have done — and what can other beachfront owners do — to demonstrate the gains of dry land are the result of accretion rather than avulsion? (Conversely, how could the owner show the loss of dry land was due to avulsion rather than erosion?) Frequent surveys and photographic documentation seem to be prudent steps. The law will deem the property owner to be the person in the best position to know what happened. It is up to the owner to collect the information that might be needed later.

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