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City of Long Branch v. Liu

203 N.J. 464, 4 A.3d 542 (2010)

CONDEMNATION; ACCRETION; AVULSION — In an eminent domain proceeding, the owner of beachfront land is not entitled to an award on account of an avulsion (which is a sudden addition to land caused by natural or man made forces) because, unlike an accretion (a slow, imperceptible addition) an avulsion does not result in a change in ownership to the previously submerged land.

A municipality adopted a redevelopment ordinance for areas of beachfront property within the municipality. As part of the redevelopment plan, the municipality attempted to purchase a property owner’s oceanfront property. When the parties could not agree to a purchase price, the municipality filed a condemnation action to acquire title to the property through eminent domain. In its complaint, the municipality described the property based on a 1977 deed. However, by the time the municipality initiated the condemnation action, the owner’s beachfront had increased by more than two acres as a result of a beach replenishment program financed by the municipal, state, and federal governments.

The owner moved to amend the municipality’s complaint describing his property to include the increased beachfront property resulting from the beach replenishment program. He argued that the increased beachfront was his property, and that he was entitled to compensation for the loss of that portion of his property in the condemnation action. The lower court disagreed. The lower court noted that, generally, land covered by tidal waters up to the mean high water mark is owned by the state in trust for the people. The lower court also noted that an “avulsion,” a sudden addition to land caused by natural or manmade forces does not result in a change in ownership to the previously submerged land. However, an addition to land caused by “accretion,” a slow, imperceptible addition of sand does result in a change of ownership. In this case, the lower court found that the beach replenishment program constituted an avulsion and not an accretion. Therefore, the owners, as upland owners, did not gain title to the new dry land added to the shoreline. The lower court also found that the owner failed to show that the increase of land was a result of an accretion. The owner appealed. The Appellate Division affirmed.

The Appellate Division did not discuss the differences between avulsion and accretion under common law in determining whether the two-acre property belonged to the owner or the municipality. Instead, the Appellate Division determined that, based on public policy considerations the owner was not entitled to an enhanced valuation of its property in the condemnation action as a result of the spending of public funds for a beach restoration project. The owner appealed again but the Supreme Court affirmed again.

The Court noted that under common law, the owner of oceanfront property takes title to dry land added by accretion but loses title over land that becomes tidally flowed as a result of erosion, the gradual eating away of soil by currents or tides. Further, the owner of oceanfront property does not take title to land added through avulsion. The doctrine of avulsion was designed to mitigate the hardship of drastic shifts in title that would result if changes in ownership were applied under the doctrines of erosion or accretion to sudden and dramatic changes in shoreline. The Court found that, based on common law principles, the owner did not take title to the land added through the beach replenishment program as the land was added as a result of avulsion. The Court rejected the owner’s argument that based on “natural equity,” a property owner is entitled to an indefeasible right of direct contact with the water. The Court found no basis for that approach and it also took exception to the owner’s attempted use of that concept in order to receive additional compensation, in a condemnation action, for additional land created as part of a taxpayer-funded beach replenishment program.


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