A-1633-11T4/A-1677-11T4 (CONSOLIDATED)
In this action by Ocean City beachfront property owners for breach of easement agreements obligating the township to maintain a dunes height restriction, we hold that the municipality's failure to perform its part of the bargain is due to reasonably unforeseen circumstances beyond its control (passage of CAFRA amendments regulating dune maintenance) so as to relieve Ocean City of its contractual duty.
Even though Ocean City may not be liable for breach of contract under the doctrine of impracticability of performance, we nevertheless hold that the homeowners are not left without a remedy in the interest of fairness, since plaintiffs surrendered their right to compensation (through eminent domain condemnation) in reliance on Ocean City's promise to protect their ocean views. We go on to explain the proper measure of restitutionary damages, necessarily limited to the harm that flows naturally only from the increased height and to include the principles recently espoused in Borough of Harvey Cedars v. Karan, 124 N.J. 384 (2013). 10-28-13
