Not Just a Walk in the Park: Beach Access and the Public Trust Doctrine in New Jersey

Raleigh Avenue Beach Association v. Atlantis Beach Club, 370 N.J. Super. 171 (App. Div. 2004).

Jennifer Simon1

On June 3, 2004, the Appellate Division of the New Jersey Superior Court ruled that a private beach club cannot limit vertical or horizontal access to the dry sand beach, and that the club may not restrict the public’s right to traverse the dry sand property for “intermittent recreational purposes.”2 Moreover, the court held that while a beach club may ask for a fee from those who wish to use the beach for an extended period, the fee should not exceed the cost of services provided. Furthermore, the New Jersey Department of Environmental Protection must approve the fee, and it must be comparable to the fees charged by the municipality for beach tags. The Appellate Division decision relies upon and extends the holding of the seminal New Jersey beach access case, Matthews v. Bayhead3 which extends the public trust doctrine to apply to dry sand areas of beaches as well as submerged lands. The Atlantis decision enlarges the scope of the public trust doctrine to unprecedented effect, holding that the public has a right not only to submerged lands, and a right of passage over dry sand, but must also have recreational access to dry sand areas even when those areas are held in trust by private owners. Moreover, the court held that while beach clubs may charge membership fees, the club cannot exact more than what it requires to maintain the actual services provided to its members. .

New Jersey Beaches and the Problem of Beach Access
The State of New Jersey is host to nearly 130 miles of coastline bordering the Atlantic Ocean. The New Jersey shore provides a haven for tourists, vacationers, surfers and other water recreationists, nature lovers, and people who simply want to spend the day at the beach. In addition to providing pleasure, the New Jersey beaches also lure in a substantial supply of consumers that support a wide array of coastal businesses including restaurants, real estate agencies, bars, and general retailers. Moreover, New Jersey beaches are close enough to several large metropolitan areas (New York City, Philadelphia, Newark and their suburbs) that it is common for beachgoers to come just for the day, or to commute from less expensive areas slightly farther inland.

In the last century, beachfront property has become an increasingly valuable commodity as undeveloped property becomes more and more scarce. Many beaches along New Jersey’s coast are now bordered by a virtual wall of hotels and homes on adjacent lots of land. In order to get to the beach itself, the public is forced to either traverse private property, or find a municipally sanctioned access point. To add to the difficulty, many public access points are hidden between private lots of land and landowners have been known to obscure or obstruct the entry point, or even to place “private property” signs in such a way as to convince the public that there is no access available at all at the site. In rare cases, the public has been forced to circumnavigate these blocked-off areas to obtain access. In the alternative, New Jersey has requested landowners to provide easements across their properties and have even gone so far as to require an easement before granting building or zoning permits.4 While it is well settled that the public may use lands located below the tide lines, it is less clear whether the public can also make use of the beach, and, if so, where the public beach ends and private property begins, given that tide-washed beaches are inherently changing pieces of land. Additionally, even when a beach area is called “public,” municipalities or other private entities frequently charge for permits that allow beachgoers to do more than simply pass through the beach area. Therefore, the issues are threefold:

(1) whether the public has an inherent right to use the beach;
(2) if the public does have a right to use the shore, whether the public has a right to convenient physical access; and
(3) whether the government or a private owner has a right to regulate access to the beach by requiring that beachgoers obtain permits for a fee.

The issues raised by the problem of beach access require a review of the public trust doctrine, which provides that lands held in trust for public use must not be restricted for private use, in light of the takings clause of the Fifth Amendment, which requires that private property owners be compensated if their property rights have been unjustly infringed upon by the government. Customary law, dating back to the time of Justinian, has held that “everyone could use the seashore ‘to dry his nets there, and haul them from the sea . . .’”5 However, while it is clear that submerged lands fall under the scope of the public trust doctrine, it is less clear whether areas that are occasionally submerged by the tides are protected.6

Thus, while the public has an inherent right to the use of tidal areas, there is no public right to private property. If the dry sand beaches which lie between the uplands and the water can be held by private owners who may by all rights exclude the public, the public may have no physical route to gain access to the waters which would essentially create a cordon of exclusive beaches. Since the public trust doctrine clearly disallows this complete exclusion of the public, it seems that private owners must allow the public to gain access to the beach despite their property rights. However, the Fifth Amendment of the United States Constitution explicitly provides that private property “shall [not] be taken for public use without just compensation.” Inversely then, while the public may have a right to use the beach, the right of a property owner to exclude the public from his property could serve to prevent the public from traversing his property to gain access to the beach.

The Public Trust Doctrine in New Jersey
New Jersey has long held that submerged lands are held in trust by the state for the public benefit and use. In 1870, the New Jersey Court of Errors and Appeals held that “all navigable waters within the territorial limits of the State, and the soil under such waters, belong in actual propriety to the public.”7 Prior to the upsurge of beachfront developments and attendance, there was little need for municipal maintenance or supervision of the beaches, and thus, beaches were free.8 However, as the tourist population increased and the need for maintenance, service, and safety facilities increased, municipalities began charging fees for beach access.9

Challenges to mandatory municipal fees and permits began almost immediately after the requirements took effect. In 1954, the New Jersey Superior Court held that while municipalities may charge a fee for beach access, “an oceanfront municipality may not absolutely exclude non-residents from the use of its dedicated beach, including, of course, land seaward of the mean high water mark.”10 In 1972, the New Jersey Supreme Court further held that “while a municipality may validly charge reasonable fees for the use of their beaches, they may not discriminate in any respect between their residents and non-residents”11 thus requiring that the same fee apply to both residents and non-residents. The Court reasoned that municipal actions with discriminatory effect are unconstitutional on land held in trust for the public, which extended to municipally owned dry sand flanking the high water mark.12

Twelve years later, the New Jersey Supreme Court, in its seminal Matthews opinion, opined that quasi-municipal property owners that provide the beach services and maintenance ordinarily provided by a municipality may not exclude the public from the dry sand area of the beach: “To say that the public trust doctrine entitles the public to swim in the ocean and to use the foreshore in connection therewith without assuring the public of a feasible access route would seriously impinge upon, if not effectively eliminate, the rights of public trust doctrine.”13 Moreover, the court held that the public’s right to municipally owned dry sand “is not limited to passage . . . [because] [r]easonable enjoyment of the foreshore and the sea cannot be realized unless some enjoyment of the dry sand area is also allowed.”14 Therefore, the court held that the public trust doctrine must extend to provide for “public access to and use of privately-owned upland sand areas as reasonably necessary”15 subject to an accommodation of the needs of the owner. However, because the facts of the Matthews case pertained to the exclusivity claims of a quasi-municipal landowner, the court stopped short of discussing the property rights of non-municipal private land owners.

Factual and Procedural Background of Atlantis Beach Club
The Atlantis Beach Club owns beachfront property in Lower Township, New Jersey in an area known as Diamond beach. Atlantis’ property consists of dunes, dry sand beach, and ocean floor. At high tide, a large portion of the property is entirely submerged. To the north and south of Atlantis’ property are La Vida del Mar and La Quinta Del Mar, condominium and hotel complexes. SeaPointe Village, another hotel and condominium complex, lies north of La Vida del Mar, and provides lifeguard services, a public restroom, outdoor showers, and parking facilities. With the approval of the New Jersey Department of Environmental Protection’s Division of Coastal Resources, Seapointe sells daily, weekly, and seasonal beach tags.16 Neither of the resort complexes that directly border Atlantis restrict or limit access to their beach properties.

In 1996, Atlantis began to limit access to its property by mandating a minimum seasonal “membership rate” of $300.00 for a family of six. By 2002, Atlantis had significantly augmented its rates, increasing the minimum membership fee to $700.00 for a family of eight, with an available lifetime membership priced at $10,000.00. Atlantis’ owners certify that the club provides “security, maintenance, and lifeguard services, together with some recreational activities.”17 Atlantis does not provide showers, restroom facilities, refreshments, beach chairs or other amenities to its members, and the property boasts only two permanent structures: a boardwalk which runs between the adjacent condominium complexes, and a bulkhead.

Above the bulkhead, Atlantis has posted a sign which reads: “Free Public Access Ends Here/ Membership Available at Gate.”18 In 2003, Atlantis sent out a letter to its current membership and to residents in the surrounding area soliciting membership fees with the adage, “[t]he price of exclusivity is not cheap.”19 During the summer of 2003, Atlantis lifeguards were seen patrolling the property with bullhorns announcing that “people who were sitting on the wet sand area (the foreshore) were trespassing and robbing members of Atlantis’ services.”20 If residents of the condominium complexes adjacent to Atlantis cannot cross over Atlantis’ beach front property to gain access to the public beaches on either side, they must circumnavigate Atlantis’ property by walking up to the street and around, which involves nearly half of a mile of additional travel. Atlantis responded by posting an addition to its rules and regulations which reads, “Anyone Attempting to Use, Enter upon or Cross over Club Property for Any Reason Without Club Permission or Who Is Not in Possession of a Valid Tag and Authorized to Use Such Tag Will Be Subject to Prosecution, Civil and or Criminal to the Fullest Extent Permitted by Law Including All Costs and Legal Fees Incurred by the Club.”21

Subsequently, in July 2002, Atlantis filed an Order to Show Cause and Verified Complaint against a resident of one of the adjacent condominium complexes and his “class of persons” seeking to enjoin them from trespassing on Atlantis property, and seeking affirmation of its claim that it is not required to provide free passage across its property to anyone not a member of the Club. In response, the Raleigh Avenue Beach Association, whose membership consists of residents of a street bordering Atlantis’ property filed a complaint against Atlantis and the State of New Jersey requesting a declaration that they are entitled to access to the wet sand area of Atlantis’ property without reserve, and to a “sufficient amount of dry sand above the mean high water line,”22 and that Atlantis had violated the public trust doctrine.

In an order issued by the Chancery Division in September 2002, the court held that the “public trust doctrine ‘applied’ to Atlantis’s property,” but that public access to the dry sand area of the beach was limited to a narrow three-foot strip just above the high water mark, and that vertical access should be provided “insofar as practical” within the discretion of the DEP. Moreover, the court held that Atlantis was entitled to charge a “commercially reasonable fee” for the use of its property subject to the Club’s provision of lifeguards and other services and equipment.

Joined by the resident association, the State of New Jersey filed a notice of Appeal in December 2003. The state’s appeal was joined by a number of additional citizen’s groups who filed a combined amicus brief. Prior to the appellate hearing, the Appellate Division granted a stay on the imposition of Atlantis’ 2004 beach fees, and an order to return any beach fees collected after January 2004. Atlantis asserts that the Chancery Court correctly held that the public trust applies to its property and that the access provided for in that opinion satisfies the public access needs under the doctrine. The appellant state and citizen groups argued that the access provided for in the Chancery Court’s opinion still violated the public trust doctrine, and moreover, that the fees required by Atlantis were wholly unreasonable.

The Appellate Division Reverses, Modifies and Remands
The Appellate Division first reversed the Chancery Court to the extent that the lower court’s opinion limited horizontal and vertical access to Atlantis’ property and to the dry sand for sporadic recreational use. The Court then modified the portion of the lower court’s opinion that called for a “commercially reasonable fee” and remanded for an assessment of what constitutes a reasonable access fee.

The court began with a detailed historical review of the public trust doctrine citing Borough of Avon and Matthews. The court took particular notice of the Matthews court’s finding that “enjoyment of rights in the foreshore is inseparable from use of dry sand beaches”23 and that the beachgoers’ right to the dry sands above the high water mark must incorporate not only passage across those lands, but that “the complete pleasure of swimming must be accompanied by intermittent periods of rest and relaxation beyond the water’s edge.”24 Applying the Matthews finding that allows public use of privately held dry sand areas, “subject to an accommodation of the interests of the owner,” the court assessed the particular benefits of membership with the beach club that would require the protection of exclusive rights. The court held that because exclusivity “is not a valid reason for limiting use or access, . . . [the public’s] intermittent or recreational use of the upland sand [would not] interfere with or otherwise prevent [Atlantis] from servicing its members.”25 However, when Atlantis asserted that its membership benefits also will include access to showers and the sale of refreshments, the court agreed that Atlantis may limit access to those services to its exclusive membership. Thus, the court held that the public may traverse across Atlantis’ dry sand beaches both vertically to gain access to the beach from the upland areas, and horizontally to travel between the public beaches bordering the Club property.

Next, the court reviewed the reasonableness of Atlantis’ membership fees. Relying on its affirmation of the Chancery Court holding that the public trust doctrine does apply to Atlantis’ property, the court reasoned that Atlantis has essentially taken on the burden of holding its parcel of beach front property in trust for the public use. Thus, while Atlantis is a private organization that may not normally be subject to judicial limitations on its business practices and membership fees, the Club is effectively acting as a trustee of public lands and is thus subject to limits on the profitability of its services. Citing N.J.A.C. 7:7E-8.11(b)4’s prohibition on fees, the court held that Atlantis may not exact a greater fee than what is reasonably necessary to cover the costs of maintenance and administration of services. The court did not hazard an estimate of Atlantis’ maintenance and administration costs, instead remanding the determination of what constitutes a reasonable membership fee to the Chancery Court for review in light of the present findings. At present, the Atlantis Beach Club website still reflects its original $700.00 seasonal and $15,000.00 lifetime membership fees.26

Conclusion: The Effect of the Atlantis Beach Club Decision
The holding of the Appellate Division in the Atlantis case provides a significant legal precedent to support advocates of beach access throughout the state of New Jersey. This is especially vital as undeveloped shore front land becomes more and more scarce. However, it is unlikely that the decision of the Appellate Division will go unchallenged. The owner of Atlantis has threatened to file an appeal to the State Supreme Court, arguing that DEP-approved fees charged at SeaPointe would barely cover his property taxes notwithstanding the maintenance and service costs associated with the Club. In contrast, environmentalists and citizens’ advocacy organizations hail the ruling as a solid blow against private owners that seek to exclude the public from wide swathes of beach area, and against beach clubs which attempt to extort enormous sums of money for the use of what, for all practical purposes, is property held for the public benefit.

Endnotes
1. Jennifer is a third-year law student at Rutgers School of Law in Camden, New Jersey.
2. Raleigh Avenue Beach Association v. Atlantis Beach Club, 370 NJ Super. 171, 188 (2004).
3. Matthews v. Bayhead Improvement Association, 95 N.J. 306 (1984).
4. See e.g. Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) and Nollan v. California Coastal Commission, 483 U.S. 825 (1987).
5. Matthews, 95 N.J. at 317 (1984) citing Justinian, Institutes 2.1.5 (T. Sandars trans. 1st Am. ed. 1876).
6. In a seminal 19th century case, the United States Supreme Court upheld the public trust doctrine, opining in relevant part: “Land under tide waters are incapable of cultivation or improvement in the manner of lands above high water mark. They are of great value to the public for the purposes of commerce, navigation, and fishery. Their improvement by individuals, when permitted, is incidental or subordinate to the public use and right. Therefore, the title and the control of them are vested in the sovereign for the benefit of the whole people.” Shively v. Bowlby, 152 US 1, 57 (1894).
7. Stevens v. Paterson & Newark Railroad, 34 N.J. Law 532, 549 (1870).
8. Prior to the common use of motor vehicles, New Jersey beaches were free to everyone. However, “with the advent of automobile traffic and the ever-increasing number of vacationers, the beaches and bathing facilities became overcrowded and the beachfront municipalities began to take steps to limit the congestion by regulating the use of the beach facilities and by charging fees.” Borough of Neptune v. Borough of Avon-By-The-Sea, 61 N.J. 296, 300 (1972), quoting Borough of Neptune v. Borough of Avon-By-The-Sea, 114 N.J. Super. 115, 117 (1971).
9. Two statutes were enacted in the 1950s authorizing New Jersey municipalities to charge a fee to beachgoers to account for increased maintenance and safety costs. See N.J.S.A. 30:92-7.1 (1950) and N.J.S.A. 40:61-22.20 (1955).
10. Borough of Neptune, 61 N.J. at 303, citing Brindley v. Lavallette, 33 N.J. Super. 344, 348-349 (Law Div. 1954).
11. Id. at 310.
12. Id. at 309.
13. Matthews, 95 N.J. at 323-324.
14. Id. at 325.
15. Id. at 326.
16. Seapointe currently charges $2.50 daily, $10.00 weekly, and $40.00 per season. The hotel is presently seeking to raise its rates to $3.00 daily, $15.00 weekly, and $50.00 seasonally. Atlantis Beach Club, 370 N.J. Super. at 179 n.4.
17. Id. at 180.
18. Id. at 179.
19. Id. at 180.
20. Id.
21. Id.
22. Id. at 181.
23. Matthews, 95 N.J. at 322.
24. Atlantis Beach Club, 370 N.J. Super. at 187.
25. Id. at 188.
26. www.atlantisbeachclub.com.