The Disaster Control Act Does Not Grant A Municipality With The Power To Acquire Perpetual Interests In Property
Friday, February 27, 2015

In Minke Family Trust v. Township of Long Beach, Superior Court of New Jersey, Law Division, Ocean County, Docket No. OCN-L-3033-14 (Law Div. Feb. 13, 2015), Honorable Vincent J. Grasso, A.J.S.C. held that the shore protection provisions of the Disaster Control Act (“DCA”), N.J.S.A. App. A:9-51.5 to -51.9, does not empower the Township of Long Beach (“Township”) with the legal authority to declare an immediate taking and record a deed of “perpetual and assignable easement and right of way” against plaintiff’s property, in furtherance of a shore protection project for dune replenishment and flood reduction measures, without instituting a condemnation proceeding pursuant to the Eminent Domain Act, N.J.S.A. 20:3-1 to 20:4-22.  Judge Grasso held that if the Township sought to acquire perpetual interests in plaintiff’s property, it must adopt an ordinance authorizing the acquisition under the DCA and comply with the procedural requirements of the Eminent Domain Act.  Judge Grasso did acknowledge that the DCA authorizes the government to enter the property and take control and possession of the property to perform acts necessary during an emergency.

 

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