Jersey Again at Forefront of Expanding Public Trust Doctrine
Beach Assn v. Atlantis Beach Club, 879 A.2d 112 (N.J. 2005).
Czepiel, 3L, University of Connecticut School of Law
On July 26, 2005,
the Supreme Court of New Jersey, affirming last years decision
of the Appellate Division1, ruled that a private beach
club could not limit vertical or horizontal access to its dry sand beach
area for intermittent recreational purposes, although it could charge
a reasonable fee for services provided.
Atlantis Beach Club (Atlantis) owns a 480-foot parcel of upland sand
beach in Lower Township, Cape May County. The lot extends to the mean
high water line. Atlantis is located in a residential area of approximately
three blocks by nine blocks, and is the only beach in Lower Township
that faces the Atlantic Ocean. The Atlantis property was open to the
public without charge until 1996 when Atlantis established Club Atlantis
Enterprises and began charging membership fees for use of the beach
and beach services. The closest free public entry is nine blocks away
and access is limited due to a low number of available parking spaces.
In 2002 Atlantis filed a complaint seeking to enjoin the general public
from trespassing, entering and accessing the Atlantis property,
arguing that it was not required to provide public access to and use
of its property or the adjacent ocean.2 The Raleigh
Avenue Beach Association (Association) fought back, arguing that Atlantis
was in violation of the public trust doctrine. The Association claimed
the doctrine required the public be granted access to the beach through
Atlantiss property and to a portion of the dry sand for enjoyment
of beach activities.
The trial court held that the public had a right to access the ocean
horizontally by means of a three-foot wide strip of dry sand immediately
landward of the mean high water line, but had limited vertical access.
The court also held that Atlantis was prohibited from charging fees
for access, but it could charge reasonable fees for services such as
lifeguards. The State and the Association appealed the trial courts
The Appellate Division held that the public could cross Atlantiss
dry sand beaches to access the beach vertically from upland areas and
horizontally from the public beach bordering Atlantiss property.
With regard to membership fees, the court held that Atlantis could charge
a reasonable fee for extended use of the property contingent upon approval
by the New Jersey Department of Environmental Protection (DEP). Atlantis
New Jersey courts look to the following four factors to determine whether
the public has access to a privately-owned beach:
(1) Location of
the dry sand area in relation to the foreshore;
(2) Extent and availability of publicly-owned upland sand area;
(3) Nature and extent of the public demand; and
(4) Usage of the upland sand land by the owner.3
The court held that
these factors weighed in favor of public access to the Atlantis property.
First, Atlantiss dry sand is immediately adjacent to the ocean.
Second, there are no publicly-owned beaches in Lower Township, although
there is significant public demand from residents and tourists. Finally,
Atlantis was utilizing the upland area as a commercial enterprise that
excluded the public. Due to high public demand, lack of public beaches,
and the commercial-nature of Atlantiss use of the property, the
court stated that the Atlantis upland sands must be available
for use by the general public under the public trust doctrine.4
As for the beach fees, the court affirmed the Appellate Divisions
determination that the DEP has jurisdiction to review Atlantiss
beach fees. The DEP has authority to issue rules and regulations governing
land use within the coastal zone under the Coastal Area Facility Review
Act (CAFRA). Atlantis planned to build a boardwalk pathway over the
dunes and the court found that this qualified as a development triggering
CAFRA jurisdiction. The DEP also has the authority to regulate health
and safety issues, which would include the lifeguard and other services
provided by Atlantis. The DEP, therefore, has the authority to review
fees charged for use of the ocean and beach. However, the Supreme Court
found that the DEP does not have the authority to regulate fees charged
by Atlantis for the construction, maintenance, and rental of its cabanas
and other similar business enterprises like concessions and beach chair
The courts holding was not unanimous. Two justices dissented,
disagreeing about the application of the four Matthews factors. The
dissenters found that an adjacent beach is available to the public and
the public trust doctrine only requires access to the ocean and to a
small beach area. While the dissenting justices suggest a three-foot
wide strip is not adequate (they recommended a ten-foot strip), they
argue that the public should not be allowed to infringe on Atlantiss
private property rights any further.
The majority opinion controls, however, and Atlantis must allow public
access both vertically and horizontally across its property. Despite
this ruling, the issue is not likely to be quieted any time soon. Other
private beach clubs with different factual situations may attempt to
restrict public access in the future. A subsequent legal challenge by
the general public may fail if a court is persuaded that the demand
for public access has been met, and that the property has historically
been held by a private entity and used commercially. In a case involving
these distinguishing characteristics, a court could potentially find
that a private beach club is well within its rights to restrict public
1. For a thorough discussion of the Appellate Divisions
opinion, see Jennifer Simon, Not Just a Walk in the Park: Beach Access
and the Public Trust Doctrine in New Jersey, The SandBar
2. Raleigh Avenue Beach Assn v. Atlantis Beach
Club, 879 A.2d 112, 116 (N.J. 2005).
3. See Matthews v. Bay Head Improvement Assn,
471 A.2d 355 (N.J. 1984).
4. Raleigh Avenue Beach Assn, 879 A.2d at 124.