Federal Disaster Aid, Shorelines and Just Compensation - Hurricane Sandy

It is a rare day when I get to blog about natural disasters, the federal government, shorelines and takings law - but today, dear readers, is that day.

From our friends over at the New Jersey Condemnation Law blog here, the New Jersey Legislature is considering a bill that states:

Just compensation for a portion of beachfront property condemned for the purpose of acquiring an easement for dune construction shall include consideration of the increase in value to the entire property due to the added safety and property protection provided by the dune, as well as any diminution in value to the property attributable to the condemnation.

Typically, the Fifth Amendment sets the floor for damages required by the just compensation clause.  State can provide additional protections by constitution or statute.  This is interesting, in that the New Jersey Legislature is attempting to define what is included in the just compensation award, in a manner that may actually reduce the award.

If federal funds are assisting with the acquisition of the easement, query whether the Uniform Relocation Act has some bearing on this proposed law.  It provides, at 49 C.F.R. 24.103(b), that:  

(b) Influence of the project on just compensation. The appraiser shall disregard any decrease or increase in the market value of the real property caused by the project for which the property is to be acquired, or by the likelihood that the property would be acquired for theproject, other than that due to physical deterioration within the reasonable control of the owner.

As the governments attempt to address the resiliency of coastal areas through dune projects and hazard mitigation (a topic recently discussed by our ABA Section on Litigation Condemnation Committee on a teleconference), determining the price tag for these issues is certain to become a hotly litigated area of the law.