Vantage Point: Shifting Sands

A 330Kb PDF of this article as it appeared in the magazine—complete with images—is available by clicking HERE

This is a story a long time in the making. It begins in March of 1962, when the infamous Ash Wednesday Nor’easter known as "The Great Atlantic Storm" smashed Avalon, New Jersey, along with much of the midAtlantic coast between North Carolina and New York. One of the many victims of the storm’s flooding and annihilation was a beachfront summer home that Edward and Nancy Klumpp had built barely two years before.

After viewing the destruction, the Klumpps did not return to Avalon for many years. Meanwhile, the Borough adopted resolutions in August 1962 to take properties without first paying just compensation (to be paid later, thereby avoiding delays from disputes over amounts due), pursuant to state laws authorizing municipalities to take immediate emergency action, and completed a dune project that extended across the Klumpps’ land in 1965. This project included limiting access to the dune area and constructing a footpath across the Klumpps’ land for beach access. After the project was completed, Avalon adopted new ordinances to restrict use of beachfront areas (including the one in question), vacating public right of access to part of 75th Street (which had been the Klumpps’ means of reaching their site), and prohibiting construction of residential buildings in this area by rezoning.

Throughout this process, Avalon denied it had taken the Klumpps’ property, all the way up until the start of litigation to compel it to provide access, which was needed before the New Jersey Division of Land Use Regulation could approve coastal home construction under the State’s Coastal Area Facilities Review Act (CAFRA). Even on the cusp of litigation, rather than admit to a taking, for which it would have to pay them, the Borough claimed it had gained title to the land by adverse possession, or that the Klumpps had lost any rights to compensation under the Statute of Limitations.

So now we have a mix of land use issues, all of which affect us both as landowners and as surveyors. First we have condemnation, the exercise of eminent domain allowing certain authorities to take private properties for public purposes (with an aberration in the unfortunate 2005 US Supreme Court decision in Kelo v. City of New London) on condition that just compensation is made to the landowner at some point in time. Next we have the concept of inverse condemnation, when practical use of property is denied by enforcement of regulations or legislation. And then we have adverse possession, by which one party claims ownership of another’s land by meeting certain statutorily prescribed conditions that vary slightly from state to state but uniformly require open, notorious, and hostile possession of the property for a continuous period of time prescribed by law. Intertwined with all of this are Statutes of Limitations that require someone to act within a prescribed period of time or lose all later rights to protest, and the exercise of regulations over use of private property. Throw in a dose of equity and the concept of notice for good measure to cover a truly broad spectrum of real property matters in a single series of suits about a sandy flood-prone lot 90 feet by 100 feet.

As part of the dune construction project begun in 1963, Avalon was to notify all affected property owners directly about a property exchange program, which would have put the Klumpps on notice that they were about to lose some or all of their rights in their property. But they never received such a notice. Meanwhile, Borough records continued to list the property as being held privately, the Klumpps continued to receive and to pay municipal property tax bills (although on a much devalued basis), and in 2002 they received a notice that property revaluation for tax assessment was anticipated to occur soon.

In 1997, the Klumpps had approached the Borough about various ordinances and resolutions that made it impossible for them to rebuild their summer home. While confirming the Klumpps could not rebuild, Avalon denied that any taking or inverse condemnation had occurred (or that any compensation was due), instead maintaining that the ordinances merely regulated activities on the dune for the benefit of the community.

With this history, and the fact that their deed is the last on public record for the disputed property, the Klumpps apparently were unaware that there was any counterclaim to title in their small lot. The State’s 2003 denial of a CAFRA permit for rebuilding a beach house based on lack of access led them to contact the Borough repeatedly about just compensation (and being ignored each time), as construction of the dune and vacation of the nearest public street had landlocked them. Finally the Klumpps filed against Avalon in November of 2004 to seek a declaration for the necessary pedestrian and vehicular access.

Awaking from its stupor, Avalon first admitted that the Klumpps did own the property but then counterclaimed for adverse possession (having more than the statutorily-prescribed 30 years of actual, open, notorious, hostile possession through the dune project), an easement by prescription in the public interest, and/or an easement under the public trust doctrine (which guarantees public right of access to navigable and/or tidal water bodies). An about-face in a later amendment of its arguments dropped any acknowledgment of the Klumpps’ rights and claimed that Avalon had acquired title back in 1962 after taking "functional possession of the property", and that any claim for just compensation for that taking expired within six years in accordance with the Statute of Limitations.

Having it both ways does not work even if you are a governmental entity, and deciding on the most expedient position of ownership/non-ownership for its own benefit did not sit well with New Jersey’s Superior and Supreme Courts (2007, 2009, and 2010). In the end, the Klumpps were awarded compensation plus 45 years of interest. It is the amount of the award that they are now appealing, with a decision expected mid-2012. Meanwhile, Klumpp v. Borough of Avalon (997 A.2d 967) provides a good view of how condemnation procedures are supposed to provide notice, when statutes of limitations protesting compensation run, the basis for compensation, differences between condemnation and inverse condemnation, and why equity is important in judicial decisions.

Wendy Lathrop is licensed as a Professional Land Surveyor in NJ, PA, DE, and MD, and has been involved since 1974 in surveying projects ranging from construction to boundary to environmental land use disputes. She is a Professional Planner in NJ, and a Certified Floodplain Manager through ASFPM.

A 330Kb PDF of this article as it appeared in the magazine—complete with images—is available by clicking HERE

About the Author

Wendy Lathrop, PS, CFM

Wendy Lathrop is licensed as a Professional Land Surveyor in NJ, PA, DE, and MD, and has been involved since 1974 in surveying projects ranging from construction to boundary to environmental land use disputes. She is a Professional Planner in NJ, and a Certified Floodplain Manager through ASFPM.