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Milgram v. Ginaldi

A-1906-06T2 (N.J. Super. App. Div. 2008) (Unpublished)

CONDEMNATION; EASEMENTS — A government agency may not obtain a court order forcing property owners to grant a permanent access easement because an easement granting public access to private property is a taking, and the Eminent Domain Act provides the exclusive procedure for taking private property for public use.

The New Jersey Department of Environmental Protection (DEP) sought to further a federal initiative to repair and reconstruct eroded beachfront by seeing that a dune and berm on private property would be constructed and maintained for a term of years. The DEP signed a project cooperation agreement with the United States Army Corps of Engineers, and municipal officials sent a proposed easement agreement to affected private property owners. The easement allowed for a right of public access and use with limitation only by the grantee to preserve the dune area. Property owners of five oceanfront properties refused to sign the easement, claiming that it would amount to public taking of the land without just compensation. The DEP filed a complaint and sought a preliminary injunction to permit necessary access. One named property owner filed a motion to dismiss the complaint. The lower court dismissed the complaint, finding that the State of New Jersey failed to abide by the Eminent Domain Act when seeking to force the property owners to grant an easement. The DEP appealed.

The Appellate Division affirmed the lower court’s ruling, holding that an easement granting public access to private property is a taking, and the Eminent Domain Act provides the exclusive procedure for taking private property for public use. It found that the State could not force a property owner, by way of preliminary injunction, to grant a perpetual public access easement without first following the procedures in the Eminent Domain Act. The Court also noted that the property owners never denied the government access to the property for the purpose of correcting an emergency erosion condition; rather they only objected to the grant of an easement. It found that because the State’s demand for a permanent easement amounted to a taking of private property without just compensation, the DEP was required to comply with enacted procedures to accomplish an apparently legitimate public purpose.


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