Considering the Historical Evidence for Shoreline Real Estate Determinations

by Isaac Benmergui, Esq on March 21, 2014

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Who would’ve thought real estate law was all about history? You’d think that every attorney on the planet would brush up with every historian, because it’s all about land – where the land has been and where it will theoretically end up based on the environment, based on manmade changes to the landscape and other potential factors. When Diamond faced Dobbin in this most recent case about a property and surveying company filing a shoreline certification application with the Department of Land and Natural Resources shoreline(DLNR), this ultimately turned into a history lesson.

The focal point of this case was the historical evidence. Did it match with the decision made? Apparently not. The decision was to favor the respondents in this case, the respondents being the DLNR. We came to this case specifically because the petitioners, the owner of the company, had filed a notice of appeal after hearing the proposed shoreline certification. There was no agreement. It was concluded, though, in an amended decision from the Board of Land and Natural Resources, that the company didn’t meet the burden of proof to show that the DLNR failed to provide reasons for their proposal.

Let’s switch to the Supreme Court, though, and this is where historical evidence plays a role. They vacated that amended decision. Why? The DLNR didn’t research the history of the land, looking at the upper reaches of the wave washes. That’s key.

You see how this is all about land? It’s not about presupposition or theoretical findings. There’s real historical proof in real estate law. It’s important to verify any decision regarding land. Make a note of that. Needless to say, the case was remanded for further deliberation.

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