NJ Shutdown Challenge – I Can’t Rent My Beach House!

by: Anthony F. Della Pelle
1 May 2020

The first apparent challenge to New Jersey’s shutdown orders was filed this week by a Pennsyvlania doctor, who alleges that Governor Murphy’s Executive Orders have resulted in a taking of his Margate beach house – because the orders prohibit seasonal beach rentals and, as a result, he was required to refund a deposit on a rental for his home which will now be vacant all summer.  The plaintif, David Behar, is a Pennsylvania physician who filed his complaint pro se in the U.S. District Court for the District of New Jersey on April 28, 2020.  The complaint seeks a declaratory judgment that the Executive Orders are null and void, injunctive relief, damages and costs and fees.

At first blush, the merits of the cause of action are focused on the alleged regulatory taking of the plaintiff’s property without just compensation, although it fails to identify how the impacts, while real and certain to cause economic loss, satisfuy the legal criteria for a regulatory taking  – namely that the effect of the regulations substantially deprives the plaintif of all of the beneficial use and enjoyment of the property, which is an extremely difficult legal issue to prove, even in non-emergent situations.  As such, while the orders might deprive the plaintiff of the right to rent his property for a short term or seasonal rental, such orders do not prohibit longer-term rentals or the use of the property by the plaintiff himself or by members of his family, even though the plaintiff alleges that he “cannot rent it, reach it, nor enter it” without any explanation as to how he cannot reach or enter the property.  

Further reading of the complaint also reveals a separate section entitled “Political Rational for the Executive Order”.  This section contains the following allegation:

Shutdowns were all started by Democratic governors, in an election year.  Republican governors followed because of a flocking effect. They did so to destroy the achievements of the Trump administration, including a high stock market and low unemployment rate. This ordinary cold virus was a pretextual use of the law. … The sensational media coverage resulted in the violation of the anecdotal fallacy.  Violations of any formal fallacy are irrational. One can put each crash in the headlines with descriptions of the sufferings of the victim and of his family to scare people about driving. It is unethical for journalists to not present the fact that people drove a billion miles for each of those horrific events, and that many lesser crashes took place. Under those circumstances it would be likewise irrational to ban driving. Similarly, if an old lady fell and cracked her skull with her brains visible on the sidewalk, it would be irrational to ban walking.”

These political views detract from, or at least blur, the import of the property rights issues in the litigation commenced by Dr. Behar.  The Executive Orders have caused and will cause economic injury to New Jersey residents and property owners.  The full extent of the harm and damages already suffered or that will occur is both unknown and likely unprecedented.  But whether the actions of the government have gone too far, and have caused actionable violations of the law, entitling injured parties to judicial remedies, should focus on the issue of whether those actions are authorized, not whether they are politically unpopular or polarizing.  As we and other property rights counsel have indicated in our earlier writings on this topic, we expect that our courts will continue to give deference to governmental actions taken during emergencies, even if the emergencies themselves do not provide additional power to the government.   For this reason, it is important for those aggrieved by the shutdown orders to realized that they will face an uphill battle here, and should enter the ring for this fight with open eyes and ears, and a focus on the possible unconstitutionality of the orders, instead of the plaintiff’s personal political views about any government party, leader or official.