2005-08-12 / Columnists

On The Bayfront

By Elisa Hinken Are some beaches really private?

By Elisa Hinken
Are some beaches really private?

Are some beaches really private? Do private beach clubs have the right to say that their private property extends to the water line? According to court cases in New Jersey where the Public Trust Doctrine has been tested, these beaches are indeed PUBLIC.

The New Jersey State Supreme Court last week upheld an appeals court ruling that the public has a right to use portions of a private beach for sunbathing, and that the state can regulate what fees can be charged for that right.

With two dissenting votes, the court ruled Atlantis Beach Club Inc. in Lower Township, Cape May County, could not bar people from using its beach without paying memberships, which amount to $700 for eight beach tags. Because Atlantis constructed a wooden walkway over the dunes, the club fell within guidelines that triggered the state Department of Environmental Protection’s jurisdiction over beach fees. The DEP set fees at $55 for the season, $40 monthly, $15 weekly and $3 daily.

The court confirmed the state’s argument that the Doctrine of Public Trust — a concept relating to the ownership, protection and use of essential natural and cultural resources — applies equally to private beaches, said Stefanie Brand, an assistant attorney general. This doctrine has been upheld in many other states, including Connecticut, where a well-documented case about a Greenwich beach was also ruled as public.

The New Jersey case originated in 2002 when the Raleigh Avenue Beach Association filed a complaint against the club, claiming violation of the public trust doctrine.

Ralph Coscia, president of the Point Pleasant Beach-based Citizens’ Right to Access Beaches, said he hopes the decision will send a message to other private beach owners: Just because you pay taxes on the property doesn’t mean the public is not allowed to cross that beach.

“This decision is just another notch in the belt to help us and to also help some of these homeowners and businesses to understand there are some restrictions on your privacy,” Coscia said. Coscia said the case also affirmed that the DEP has some powers over fees. The citizens group may next focus on determining what a reasonable fee for beach access should be and then making sure that those private beach owners are charging no more than that amount, Coscia said.

Tim Dillingham of the American Littoral Society said the ruling will fundamentally change the way the public has access to the Jersey Shore. He said many beaches, particularly on Long Beach Island and north, are private. He believes the Supreme Court ruling “gives groups like the Littoral Society legal ammo” to fight for public access requirements for those beaches. He added the decision should spur the state to better integrate facilities such as public parking and restrooms into plans for beach reconstruction projects. “It’s a strong legal foundation for the state to advance public use of the shoreline,” Dillingham said. Some 26 percent of New Jersey’s 127-mile coastline is controlled by private owners.

The Public Trust Doctrine is a legalrecedent dating back to Roman times. It holds that navigable rivers, streams, wetlands, seashores and bays belong to the people.

The Doctrine declares that all of us have an unassailable right to access and use the waterfront for traditional purposes such as navigation, commerce, and fishing. A growing body of U.S. case law has expanded that definition to include the assurance of diverse recreational uses, as well as a guarantee of the protection of habitats and natural systems.

According to the evolving body of modern law defining the Public Trust Doctrine, government – especially state government- acts as a public trustee. Under the Doctrine, states must ensure and protect the public’s right to freely access, use, and enjoy navigable waters and the lands beneath them.

The Public Trust Doctrine has been referred to by some legal experts as a secret weapon for environmental action. It gives activists a tool with which to challenge legislative and administrative decisions harmful to rivers and bays.

The single most important feature of Public Trust law is its ability to override prior legal claims. As a result, water rights that are demonstrably harmful to a navigable river or estuary can be set aside by application of the Doctrine, regardless of how old those prior claims may be. Thus the rights claimed by developers denying access or polluters preventing fishing are superceded by the Public Trust Doctrine.

It’s important to note that the Public Trust Doctrine says that the tidal waters, waterfront resources, and wetlands held by the states in trust for the people even include lands that are privately owned. While the state can lease or sell tidally flowed lands, it can never sell the public’s rights in those lands; and, indeed, is duty bound to take steps to protect those rights. Another key point: the jurisdiction of the Public Trust Doctrine generally extends to all lands below the historic mean high tide line.

So far, this Doctrine has held up in every court decision and its contents have been used in laws by Congress and in rulings by the U.S. Supreme Court.

Many thanks to those who keep their “finger on the pulse”, such as Larry Oliver and the Natural Resources Protective Association.

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