Two recent New Jersey Court decisions concern property takings. This occurs when the government takes private property for a public purpose. This can happen in one of two ways. In an eminent domain action, the government plans to take the property as part of a project, such as highway construction. In a regulatory taking, the government over- regulates property to the point where the rightful owner loses much or all of the use of the property. Examples of this might be environmental permit denials and zoning variance denials.

The first case, decided on April 29, 1997, was East Cape May Associates v. DEP. A New Jersey appeals Court held that a safety valve statute, peculiar to the New Jersey Freshwater Wetlands Act, requires a litigant to provide the Department of Environmental Protection (DEP) with an opportunity to avoid a taking by modifying its wetlands restrictions before suit may be commenced.

Specifically, N.J.S.A. 13:9B-22b allows the State to modify a wetlands permit denial in order to avoid an adverse court ruling that a compensable taking has occurred. The appeals Court ruled that a property owner may not resort to judicial relief until it has asked the DEP whether it will provide any relief under this statute. The appeals Court also ruled that a remaining minor, almost inconsequential use, should not stop a Court from finding that a taking occurred and the Court held that a litigant need not exhaust all administrative remedies before filing suit if such action would be futile.

The second case is entitled State of New Jersey v. Fred and Geraldine Weiswasser and Township of Hainesport, decided on May 20, 1997. Unlike the first case, which concerned a regulatory taking, this case resulted from a traditional eminent domain action for the purpose of constructing a highway.

The property owners owned property along a major New Jersey highway. The State took a tiny amount of the property -- but since it was the highway frontage, it was the most valuable portion. The property owners complained this hurt them in two ways. First, they lost the property. Second, the property that was not taken (called the remainder) was worth less per acre without the highway frontage.

The Supreme Court agreed. It held that when property is taken, the effect of the taking on the remainder property should be considered when determining just compensation. Here, taking the frontage resulted in reduced visibility and access to the remainder. This in turn reduced the value of the remainder. By analogy, this decision may have far reaching implications for those seeking to evaluate the extent of damages following a government taking.

The information provided in this column is written by Stuart Lieberman,a practicing environmental attorney, and is for general information purposes only. It is not legal advice and should not be used in place of legal advice.

Stuart Lieberman, Esq., and IRED.Com, Inc., will not accept any responsibilty for any reliance on the information in this column or any damages whatsoever resulting from reading this column.