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Raleigh Avenue Beach Association v. Atlantis Beach Club, Inc.

185 N.J. 40, 879 A.2d 112 (2005)

PUBLIC TRUST DOCTRINE; BEACH ACCESS—The public’s use of dry sand ancillary to its use of the ocean is an implicit right pursuant to the public trust doctrine.

A private beach club owned property that contained the only beach in the municipality that faced the ocean. The property extended to the mean high water line from a bulkhead running north and south along the western boundary of the property. “Persons using the beach for recreational purposes cross[ed] over the bulkhead by walking on a boardwalk pathway that traverse[d] the dunes and curve[d] southward to the beach.” The pathway was approved by the New Jersey Department of Environmental Protection (DEP). The dry sand beach was between the dunes and extended to the mean high water line. A high rise condominium stood immediately to the west of the bulkhead. Other residential complexes sat to the south and west and included a six-story hotel and more than five hundred residential units. As a condition of the permit granted to a property owner north of the beach club’s property, that development’s beach was open to the public. It sold daily, weekly and seasonable beach passes at rates approved by the DEP. Its property, however, was closed to the public from April 1 through August 15.

Until 1996, the beach club’s beach was open to the public free-of-charge. At that time, its owner “established a private beach club which then began to limit public access to its beach by charging substantial fees.” In mid-2002, an individual “was issued a summons for trespassing when he attempted to leave the wet sand area and walk across [the beach club’s] beach property to his home.” The next month, the beach club sought “an injunction to restrain [that individual] and others from accessing [its] property and a judicial declaration that [it was] not required to provide the public with access to or use any portion of its property or the adjacent beach.” Neighboring residents filed a complaint against the beach club, the State of New Jersey, and others, claiming that the beach club was in violation of the public trust doctrine. The residents “sought free public access through the [beach club’s] property to the beach and access to a sufficient amount of dry sand above the mean high water line to permit the public to enjoy the beach and beach-related activities.”

The lower court “held that the public was entitled to a right of horizontal access to the ocean by means of three-foot-wide strip of dry sand and to limited vertical access to the ocean by way of the path from the bulkhead through the dunes on the property.” It ruled that “[The beach club] was prohibited from charging a fee or otherwise restricting the right of the public to horizontal or vertical ocean access.” Both the state and the neighbors appealed. “The Appellate Division held that [the beach club] could not limit vertical or horizontal public access to its dry sand beach area nor interfere with the public’s right to free use of the dry sand for intermittent recreational purposes. [The beach club] could charge a fee to members of the public who used its beach for an extended period of time. The opinion also added that [the beach club] was required to provide customary lifeguard services for the public.” The Appellate Division remanded the matter to the DEP with respect to appropriate fees. The beach club appealed further to the New Jersey Supreme Court, but unsuccessfully.

“[T]he public trust doctrine derives from the English common law principle that all of the land covered by tidal waters belongs to the sovereign held in trust for the people to use.” In 1984, the Supreme Court “articulated the concept already implicit in [prior] case law, that reasonable access to the sea is integral to the public trust doctrine.” That left the question for the Court as to “whether use of the dry sand ancillary to use of the ocean for recreation purposes is also implicit in the rights that belong to the public under the doctrine.” Pursuant to a 1964 Supreme Court decision, it was unequivocal “that a bather’s right in the upland sands is not limited to passage and that reasonable enjoyment of the foreshore and the sea cannot be realized unless some enjoyment of the dry sand area is also allowed.” To the Court, it followed, then, that “use of the dry sand [had] long been a correlate to use of the ocean and [was] a component part of the rights associated with the public trust doctrine.” The four criteria for a case-by-case analysis with respect to the degree of accommodation that a beach owner must afford to the public are: “a) location of the dry sand area in relation to the foreshore, b) extent and availability of publicly-owned upland sand area, c) nature and extent of the public demand, and d) usage of the upland sand land by the owner.” Applying those factors to this particular case, the Court held that the beach club’s “upland sands must be available for use by the general public under the public trust doctrine.” It highlighted the “longstanding public access to and use of the beach,” the CAFRA condition imposed on the neighboring property, “the documented public demand, the lack of publicly owned beaches in [the municipality], and the type of use by [the beach club] as a business enterprise.”


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