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Bubis v. Village of Loch Arbour

2008 WL 1809179 (U.S. Dist. Ct. D. N.J. 2008) (Unpublished)

EASEMENTS; BEACH ACCESS — An individual’s claim that he or she has the right to use the foreshore of a beach for prolonged periods of rest is rooted in common law and is not actionable as a federal civil rights claim.

A resident of an ocean shoreline municipality was involved in a number of disputes with two homeowners who lived across the street on beachfront property. The resident prevailed in an appeal before the Appellate Division of the New Jersey Superior Court, which ruled that the resident had an implied private easement through the homeowners’ property so that she could access the beach. The ruling did not specify how much of the homeowner’s property was available for the resident’s use. The homeowners later received permission to put down a pedestrian walkway along the southern edge of their property so that the resident could access the beach. Soon afterwards, the resident entered through the walkway then situated herself, with a beach chair, on the foreshore of the homeowners’ property, between the high and low watermarks. While the resident was on the foreshore, the neighbors called the police. One of the two police officers who arrived at the property called the mayor who told the officer that resident had no right to sit on the foreshore. The officer then informed the resident that she was on private property but she refused to move. The other officer then issued a summons to the resident for trespassing, at which point she gathered her belongings and left.

In an action brought by the resident against the homeowners, the lower court found that the resident had the right to engage in recreational activities and briefly rest on the foreshore for limited periods of time but that she did not have the right to sunbathe or to set up any chairs or other beach-related items on the foreshore. While the matter was on appeal in the Appellate Division, the resident brought federal civil rights claims along with negligence claims against the municipality, the mayor, and the two officers, all of whom sought a dismissal of her claims on summary judgment. The Court found that the resident’s claim, that she had the right to use the foreshore for prolonged periods of rest, was rooted in common law and was not actionable as a federal civil rights claim.

The Court pointed out that the officers could not be found to violate the resident’s civil rights since there were no allegations of excessive force or false arrest and because they were following the mayor’s direction. It added that no violation of the resident’s known and established rights by the officers or the mayor could have been found since the lower court found that she had no right to situate herself on the foreshore and that the matter was on appeal before the Appellate Division. The Court also found that the resident failed to establish her claims of negligence and injury. It pointed out that in order to prevail under state tort law against a public entity on a negligence claim, a party must have suffered significant physical injury and could not recover on claims of temporary injury or emotional discomfort. Thus, all of the resident’s claims were dismissed.

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