The battle over sand dunes at the Jersey Shore continues.

BAY HEAD, NJ - NOVEMBER 14: A worker climbs over piles of sand cleared from a road in front of a house by the beach on November 14, 2012 in Bay Head, New Jersey. Many residents of the hard hit seaside town remain without power following Superstorm Sandy. (Photo by Mario Tama/Getty Images)
A worker climbs over piles of sand cleared from a road in front of a house by the beach on November 14, 2012 in Bay Head, New Jersey. (Photo by Mario Tama/Getty Images)

Bay Head oceanfront homeowners are now suing to prevent the state from seizing part of their private property to build protective dunes, according to the lawyer presenting them.

Attorney Anthony Della Pelle said the lawsuit comes after the state rejected a compromise last week that was filed in a complaint from homeowners in October.

"It's different than a condemnation lawsuit. Our lawsuit in Bay Head is a declaratory judgement case, where we're asking the court to make a decision on the extent of the power that the government does or does not have," said Della Pelle. "The statute that the state is relying upon does not permit the state to acquire easements on private property for beach protection purposes."

Beachfront homeowners contend a revetment they have constructed and maintained on the beach is working.

Della Pelle said the compromise rejected by the state would have allowed beach replenishment, provided homeowners would be able to retain control and protect the property in the future.

"What they're worried about is the government's insistence that the private property, which they now own and have historically owned, will be transformed into public property and the private owners will not be able to maintain and reinforce the property in the future," Della Pelle said. "They'll be dependent upon the efforts of the government in the future to maintain and repair the beachfront and that will actually put their properties at risk."

Della Pelle pointed out that Bay Head is protected by private efforts and has been for more than 100 years.

"That protection now extends north into portions of Point Pleasant Beach and southward into Mantoloking because the rock revetment, which has been in place for more than 50 years, has been extended north and south from the Bay Head borders. Those protections have been undertaken and paid for by the private property owners along the oceanfront. They benefit not only all the properties on the ocean, but all of the inland properties as well," Della Pelle said.

Bay Head oceanfront homeowners contend they are better able to manage the storm barrier than the government, which they point out, has identified no funding source to rebuild the dune once private property is taken and the dune constructed.

"If the state dune was in place now, it would be washed out to sea like every other temporary Band-Aid solution, and the state would have no way to rebuild it," said Thom Ammirato, a spokesman for the Bay Head Oceanfront Property Owners.

In the past, Gov. Chris Christie and officials from the state Department of Environmental Protection have said dune systems are needed to protect not only those living directly on the beach, but also entire coastal communities.

"The folks in Bay Head, have shown that they can do this, they have done it, and it's worked, and their efforts have included the expenditure of millions of dollars over the years to protect their property and to protect their neighbors properties, and if that changes, they would be wholly dependent upon the government to do it, and that could put their property and their neighbor's properties at risk if it's not timely done in the future for whatever reasons," said Della Pelle.

Residents opposed to the state's attempts to seize their private property also are concerned the dune would offer no protection against flooding that occurs along the shore's bays, rivers and other inlets.

"My understanding is that historically the flooding in Bay Head, in particular, comes from the bay because of tidal surges, and that the oceanfront is adequately protected by the rock revetment that exists and the sand dune that private owners have placed on top of that rock revetment historically and maintained on their own," Della Pelle said.

Della Pelle quelled speculation that opponents of the dune project are really worried about public access.

"With respect to Bay Head, there is a public access that exists already to the beaches from the street ends, and from the water onto the beach, up to the high tide line. There's no public access issue in Bay Head that I'm aware of, in fact it probably has superior public access to many other communities along the shore," Della Pelle said.

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