SYLLABUS
(This syllabus is not part of the opinion of the Court. It has
been prepared by the Office of the Clerk for the convenience of the
reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not
have been summarized).
Argued January 19, 2005 -- Decided July 26, 2005
PORITZ, C.J., writing for a majority of the Court.
This case raises a question about the right of the public to use a 480-foot wide stretch of upland sand beach in Lower Township, Cape May County, owned and operated as a private club by Atlantis Beach Club, Inc.
Atlantis holds title to beach property that is located in the Diamond Beach
neighborhood, a residential area of approximately three blocks by nine blocks. The area
contains the only beach in Lower Township facing the Atlantic Ocean. The Atlantis
property extends to the mean high water line from a bulkhead running north/south
along the western boundary of the property. The distance from the bulkhead to
the mean high water line is about 342 feet. Persons using the beach
for recreational purposes cross over the bulkhead by walking on a boardwalk pathway
that traverses the dunes and curves southward to the beach. The pathway was
approved by the New Jersey Department of Environmental Protection (DEP) in a 1986
permit issued pursuant to the Coastal Area Facility Review Act (CAFRA). The dry
sand beach area lies beyond the dunes and extends to the mean high
water line.
La Vida del Mar Condominiums (La Vida) is a four-story, twenty-four-unit building which
stands immediately to the west of the bulkhead along the western boundary of
the Atlantis property. Other residential complexes sit to the south and west of
La Vida. Seapointe Village is located to the north of La Vida and
includes a six-story hotel and more than five hundred residential units. Seapointe occupies
the beach property to the north of the Atlantis beach. As a condition
of its CAFRA permit, issued to Seapointe when the development was constructed, the
Seapointe beach was open to the public. Seapointe sells daily, weekly, and seasonal
beach passes at rates approved by the DEP. Public access through Seapointe’s beach
along the water’s edge is free-of-charge. The United States Coast Guard owns the
property to the south of the Atlantis beach. That property is closed to
the public from April 1 through August 15.
Until 1996, the beach on the Atlantis property was open to the public
free-of-charge. Access was required by the La Vida CAFRA permit issue when La
Vida was constructed. In the summer of 1996, Atlantis established a private beach
club which then began to limit public access to its beach by charging
substantial fees. In June 2002, Tony Labrosciano was issued a summons for trespassing
when he attempted to leave the wet sand area and walk across the
Atlantis beach property to his home.
In July 2002, Atlantis filed an Order to Show Cause and Verified Complaint
seeking an injunction to restrain Labrosciano and others from accessing the Atlantis property
and a judicial declaration that Atlantis is not required to provide the public
with access to or use of any portion of its property or the
adjacent ocean. The Raleigh Avenue Beach Association, which consists of residents of the
Diamond Beach neighborhood, filed a complaint against Atlantis, the State of New Jersey
and others. The Association claimed that Atlantis was in violation of the public
trust doctrine. The Association sought free public access through the Atlantis 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 Association’s action was subsequently consolidated with the Atlantis action.
In September 2003, the trial court held that the public was entitled to
a right of horizontal access to the ocean by means of a 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.
The court stated that the public trust doctrine did not apply to permit
the DEP to regulate the use of the beach area. Atlantis was prohibited
from charging a fee or otherwise restricting the right of the public to
horizontal or vertical ocean access.
The State and the Association appealed. The Appellate Division held that Atlantis 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. Atlantis could charge a fee to members of the
public who used its beach for an extended period of time. The opinion
also held that Atlantis is required to provide customary lifeguard services for the
public. The appellate panel remanded to the DEP the issue of the appropriate
fee to be charged for beach use. On remand, Atlantis submitted an application
and the DEP issued an interim beach badge schedule setting fees at $3
per day, $15 per week, $40 per month, and $55 per season.
This Court granted Atlantis’ petition for certification.
HELD: On application of the factors in Matthews v. Bay Head Improvement Ass’n
to the circumstances of this case, the Atlantis upland sands must be available
for use by the general public under the public trust doctrine; the broad
scope of the DEP’s authority includes jurisdiction to review fees proposed by Atlantis
for use of its beach; the decision of the Appellate Division is affirmed.
The law we are asked to interpret in this case – the 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, in Matthews, this Court clearly articulated the concept
already implicit in our case law, that reasonable access to the sea is
integral to the public trust doctrine. That leaves the question raised in this
case: 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. Matthews states unequivocally 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. It follows, then, that use of the dry
sand has long been a correlate to use of the ocean and is
a component part of the rights associated with the public trust doctrine. (pp.
17-20)
Matthews established the framework for application of the public trust doctrine to privately-owned
upland sand beaches. The Matthews approach begins with the general principle that public
use of the upland sands is subject to an accommodation of the interests
of the owner, and proceeds by setting forth four criteria for a case-by-case
consideration in respect of the appropriate level of accommodations: 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. (pp. 22)
We turn now to an application of the Matthew factors to the circumstances
of this case in order to determine what privately-owned upland sand area will
be available and required to satisfy the public’s rights under the public trust
doctrine. Based on the circumstances in this case and on application of the
Matthews factors, we hold that the Atlantis upland sands must be available for
use by the general public under the public trust doctrine. In so holding
we highlight the longstanding public access to and use of the beach, the
La Vida CAFRA permit condition, the documented public demand, the lack of publicly-owned
beaches in Lower Township, and the type of use by the current owner
as a business enterprise. (pp. 23-30)
CAFRA regulates activities in the coastal zone by requiring developers/property owners to obtain
a permit from the DEP before undertaking the construction, relocation, or enlargement of
any building or structure and all site preparation therefore, the grading, excavation or
filling on beaches or dunes, including residential development, commercial development, industrial development, and
public development. We agree with the Appellate Division that the boardwalk pathway over
the dunes to the Atlantis beach qualifies as a development, thereby triggering the
DEP’s CAFRA jurisdiction over related use of the beach and ocean. We find
jurisdiction also in the DEP’s general power to promote the health, safety, and
welfare of the public. We hold that the broad scope of the DEP’s
authority includes jurisdiction to review fees proposed by Atlantis for use of its
beach. (pp. 31-32)
For the reasons expressed in this opinion, the decision of the Appellate Division
is AFFIRMED.
JUSTICE WALLACE, dissenting, in which JUSTICE RIVERA-SOTO joins, would reverse and reinstate the
judgment of the trial court but would expand horizontal access to a ten-foot-wide
strip above the high water mark.
JUSTICES LONG, LaVECCHIA, ZAZZALI, and ALBIN join in CHIEF JUSTICE PORITZ’s opinion. JUSTICE
WALLACE filed a separate dissenting opinion in which JUSTICE RIVERA-SOTO joins.
SUPREME COURT OF NEW JERSEY
A-
40 September Term 2004
RALEIGH AVENUE BEACH ASSOCIATION,
Plaintiff-Respondent,
v.
ATLANTIS BEACH CLUB, INC. f/k/a CLUB ATLANTIS ENTERPRISE,
Defendant-Appellant,
and
SEAPOINTE VILLAGE ASSOCIATION and LOWER TOWNSHIP POLICE DEPARTMENT,
Defendants,
and
THE STATE OF NEW JERSEY,
Defendant-Respondent.
ATLANTIS BEACH CLUB, INC.,
Plaintiff-Appellant,
v.
TONY LABROSCIANO, individually and on behalf of
those similarly situated and TOWNSHIP OF LOWER,
Defendants,
and
THE STATE OF NEW JERSEY,
Defendant-Respondent.
Argued January 19, 2005 – Decided July 26, 2005
On certification to the Superior Court, Appellate Division, whose opinion is reported at
370 N.J. Super. 171 (2004).
Robert J. Gilson argued the cause for appellant (Youngblood, Corcoran, Lafferty, Hyberg &
Waldman and Riker, Danzig, Scherer, Hyland and Perretti, attorneys; Chad M. Sherwood, on
the briefs).
Stephanie A. Brand, Deputy Attorney General, argued the cause for respondent State of
New Jersey (Peter C. Harvey, Attorney General, attorney; Patrick DeAlmeida, Deputy Attorney General,
of counsel; Brian Weeks, Deputy Attorney General, on the brief).
Stuart J. Lieberman argued the cause for respondent Raleigh Avenue Beach Association (Lieberman
& Blecher, attorneys).
Andrew J. Provence argued the cause for amici curiae American Littoral Society, Inc.
and Raritan Baykeeper, Inc. (Ansell Zaro Grimm & Aaron, attorneys; Gordon N. Litwin,
of counsel).
Carter H. Strickland, Jr., argued the cause for amicus curiae Citizens' Right to
Access Beaches, Inc., (Mr. Strickland, Staff Attorney, attorney; Mr. Strickland and Susan J.
Kraham, on the letter brief).
CHIEF JUSTICE PORITZ delivered the opinion of the Court.
This case raises a question about the right of the public to use
a 480-foot wide stretch of upland sand beach in Lower Township, Cape May
County, owned by respondent Atlantis Beach Club, Inc., and operated as a private
club. We hold today that, in the circumstances presented here, and on application
of the factors set forth in Matthews v. Bay Head Improvement Ass’n,
95 N.J. 306, 326, cert. denied sub nom. Bay Head Improvement Ass’n v. Matthews,
469 U.S. 821,
105 S. Ct. 93,
83 L. Ed.2d 39 (1984),
the public trust doctrine requires the Atlantis property to be open to the
general public at a reasonable fee for services provided by the owner and
approved by the Department of Environmental Protection.
I.
Atlantis Beach Club, Inc. (Atlantis or Beach Club) is the successor in title to a Riparian Grant, dated January 17, 1907, from the State of New Jersey to the Cape May Real Estate Company. The grant encompassed a large area not relevant to this litigation except for certain submerged land that, in 1907, was located within the bed of Turtle Gut Inlet, a body of water that connected to the Atlantic Ocean. Today, the land is described on the Lower Township Municipal Tax Map as Block 730.02, Lot 1.02. No longer submerged, the lot extends to the mean high water line from a bulkhead running north/south along the western boundary of the property. That western boundary lies to the east of an unpaved section of Raleigh Avenue (which runs east/west), whereas the mean high water line serves as the boundary for Lot 1.03, which is entirely submerged beneath the ocean at high tide; Lot 1.02, however, consists of dry sand beach and protected dunes. The distance from the bulkhead (the western boundary of Lot 1.02) to the mean high water line is about 342 feet. Persons using the beach for recreational purposes cross over the bulkhead by walking on a boardwalk pathway that traverses the dunes and curves southward to the beach. The dry sand beach area lies beyond the dunes and extends to the mean high water line.
A pathway runs east/west along the unpaved section of Raleigh Avenue to the approximate midpoint of the bulkhead and then, as described, across the bulkhead and through the dunes. The pathway was approved by the New Jersey Department of Environmental Protection (DEP or Department) in a 1986 permit issued pursuant to the Coastal Area Facility Review Act (CAFRA), N.J.S.A. 13:19-1 to -21. The CAFRA permit related to the construction of the La Vida del Mar Condominiums (La Vida), a four-story, twenty-four-unit condominium structure along Raleigh Avenue, and required as a condition of condominium construction public access “down the center of Raleigh Avenue, . . . and [by means of] a timber walkway over the bulkhead to the beach.” The permit also required Department-approved signs marking public access to be “conspicuously located at the end of [the] Raleigh Avenue pavement” and maintained by the condominium homeowners’ association for the life of the condominium project. See footnote 1
As noted, the La Vida building stands immediately to the west of the bulkhead along the western boundary of the Atlantis property. Another four-story multiple unit condominium complex called the La Quinta del Mar sits to the south of La Vida and the path that runs from the end of the pavement on Raleigh Avenue and over the bulkhead. To the west of La Quinta del Mar are the Villa House and La Quinta Towers, both of which contain residential units. Seapointe Village (Seapointe) is located to the north of La Vida and consists of several structures, including a six-story, one-hundred-room hotel, and more than five hundred residential units. Seapointe occupies 63.4 acres, including the beach property to the north of the Atlantis beach.
When the Seapointe property was developed, the DEP, as a condition of its 1987 CAFRA permit, required the beach in front of Seapointe to be open to the public. Under the terms of the permit, Seapointe is allowed to sell daily, weekly, and seasonal beach passes at rates approved by the DEP, although residents can access the area beyond the mean high water line free-of-charge. Public access through Seapointe’s beach along the water’s edge is also free-of-charge, and beach usage fees, regulations, and operations are subject to continued periodic review and approval by the DEP. Seapointe provides lifeguards on its beach, as well as public restrooms, outdoor showers, and parking facilities. In August 2002 when this litigation began, the rates for use of the Seapointe beach were, per person, $2.50 a day, $10 a week, and $40 a season; however, Seapointe had submitted an application for a fee increase that was pending at that time.
The United States Coast Guard owns the property to the south of the Atlantis beach. That property is closed to the public from April 1 through August 15 to protect the piping plover, an endangered species, during breeding season. Although the Coast Guard beach is unavailable for most of the summer season, the property is open to the public the rest of the year.
Atlantis is located in the Diamond Beach neighborhood, a residential area of approximately three blocks by nine blocks that contains the only beach in Lower Township facing the Atlantic Ocean. In addition to the beach access point on the Atlantis property at the end of Raleigh Avenue, there are two other access points in Diamond Beach north of Atlantis: one at the eastern end of Dune Drive and the other at the eastern end of Memphis Avenue. Access is blocked by condominium buildings located at the terminus of the other streets in the area. According to certifications filed by residents of La Quinta Towers in support of plaintiff Raleigh Avenue Beach Association (Association), the closest free entry to the beach is Dune Drive, a nine-block walk from Raleigh Avenue and a distance of approximately one-half mile. The beach access problem in Lower Township is further compounded by the limited number of parking spaces available in the Diamond Beach neighborhood.
Until 1996, the beach on the Atlantis property was open to the public free-of-charge. In the summer of 1996, however, Atlantis established a private beach club known at the time as Club Atlantis Enterprises. The club limited public access to its beach by charging a fee of $300 for six seasonal beach tags. As of July 2003, a sign posted on the gate See footnote 2 at the entrance to the Atlantis beach read: “free public access ends here/membership available at gate.” Atlantis’s 2003 Rules and Regulations, also posted, provided the following warning:
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.
Prior to the commencement of this litigation, the membership fee for new members
and members who had joined the beach club in 2002 was set at
$700 for the 2003 summer season. Members were entitled to eight beach tags
per household.
See footnote 3
Atlantis also sold “Access Easements” at $10,000 each, paid in cash.
See footnote 4
Easement holders were required to pay an annual membership fee determined by dividing
the actual costs associated with operating the beach club by the total number
of members (both easement holders and yearly members) to arrive at the holder’s
proportionate share. According to a March 14, 2003 letter to members, the payment
of membership fees or the purchase of an easement entitled them “to use
and enjoy the [club] facilities,” which included uniformed private security personnel on club
grounds, as well as lifeguards on duty from June 21 through September 1,
2003, seven days a week, between the hours of 10:00 a.m. and 5:00
p.m.
II.
On June 22, 2002, Tony Labrosciano, a member of the Association, was issued a summons for trespassing when he attempted to leave the wet sand area and walk across the Atlantis property to the eastern terminus of Raleigh Avenue in order to take the most direct route back to his home. On July 26, 2002, Atlantis filed an Order to Show Cause and Verified Complaint against Labrosciano, other unnamed persons, Lower Township, and the State of New Jersey, seeking, among other things, to enjoin Labrosciano and members of his class from “trespassing, entering onto and accessing” the Atlantis property, and declaring that Atlantis is not required to provide the public with access to or use of any portion of its property or the adjacent ocean.
The Association, which consists of individuals who reside on Raleigh Avenue in the Diamond Beach neighborhood, filed a complaint on August 14, 2002 against Atlantis, the Lower Township Police Department, Seapointe Village Association, and the State of New Jersey. See footnote 5 The Association claimed that Atlantis was in violation of the public trust doctrine and sought free public access through the Atlantis property to the beach, and 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. That Association action was subsequently consolidated with the Atlantis action. See footnote 6
On June 2, 2003, the DEP issued an Administrative Order and Notice of Civil Administrative Penalty Assessment (AO/NOCAPA) to Atlantis for conducting CAFRA-regulated activities on its property without obtaining required permits. See footnote 7 The DEP had determined, on completion of a May 23, 2003 compliance review, that Atlantis had engaged in prohibited conduct, including excavation of sand dunes and grading of the Atlantis beach, in violation of the CAFRA Coastal Zone Management Rules (N.J.A.C. 7:7E-3A.1 to -3A.5) and a July 2, 1999 Administrative Consent Order, and without the requisite CAFRA General Permit for Beach and Dune Maintenance. The AO/NOCAPA ordered Atlantis to restore the dunes that had been destroyed and to install sand fencing in a zig-zag pattern throughout the restoration area. Two days later, on June 5, 2003, the DEP notified Atlantis that it had not obtained CAFRA permits to erect certain structures on its beach and that the necessary permit applications were to be submitted to the DEP within thirty days.
On or about July 10, 2003, the DEP moved before the trial court for partial summary judgment and dismissal of all claims against it. The Department sought a ruling on the question whether the beach along the Atlantic Ocean in the Diamond Beach area is subject to the public trust doctrine such that an individual can walk along the ocean shore on the Atlantis property without fear of prosecution for trespassing or for a disorderly persons offense. On the question of access, the Department asked the court to defer to the pending administrative proceedings.
On September 19, 2003, the trial court issued a ruling from the bench, followed by both a Memorandum of Decision, dated September 22, 2003, and an Order of Final Judgment, dated November 3, 2003. The court considered and disposed of issues relating to both horizontal and vertical access to the Atlantis beach under the public trust doctrine. More specifically, the court held that the public was entitled to a right of horizontal access to the ocean by means of “a three-foot wide strip of dry sand, immediately landward of the mean high water line and extending from the northern to the southern boundaries of [the Atlantis] [p]roperty, which may be utilized by the public, at no charge, for the purpose of entering into and exiting from” the area located below the mean high water line. The trial court also held that the public was entitled to limited vertical access to the ocean, consisting of a path from the bulkhead through the dunes on the property. Although acknowledging the DEP’s authority to regulate the location, structure, and protection of dunes, and therefore, the placement of the path, the court focused on the limited nature of the public right to vertical access:
Insofar as is practicable, the path shall exit [the Atlantis] [p]roperty within the
portion of the [p]roperty upon which the dunes are located. In no event
shall the path cross the remaining portion of the [p]roperty other than along
the northern boundary thereof or provide, without Atlantis’ consent, public access to any
other portion of the [p]roperty, other than . . . [h]orizontal [a]ccess, landward
of the mean high water line.
In the court’s view, “the Public Trust Doctrine does not apply to permit
the Department to regulate the use of the Beach Area.”
Finally, Atlantis was prohibited from charging a fee or otherwise restricting the right
of the public to horizontal or vertical ocean access. The court determined, however,
that the provision of such services as lifeguards, equipment, or other facilities by
Atlantis would entitle the Beach Club, on application to and with the DEP’s
approval, to charge a commercially reasonable fee to members of the public who
use the horizontal access to swim in the ocean. The court denied without
prejudice the Atlantis application to amend its pleadings so as to assert a
regulatory takings claim.
The State and the Association appealed.
See footnote 8
While the appeal was pending, by a
March 9, 2004 letter Atlantis notified its members about the 2004 beach fee
schedule. Returning members from 2003 were required, as in the prior year, to
pay $700 for eight beach tags, whereas the easement price was increased from
$10,000 to $15,000. On April 20, 2004, the State moved before the Appellate
Division for a stay of the 2004 beach fees. The Appellate Division granted
the State’s motion on May 4, ordering that no beach fees could be
charged pending oral argument in the matter and until further order of that
court. The court also directed Atlantis to return to its members any payments
made after January 1, 2004.
On motion by Atlantis for clarification, and after oral argument, the Appellate Division
issued an interim order on May 20, 2004. Pending opinion, the court granted
“[t]he public
. . . vertical access to the beach . . . upon the
boardwalk pathway which currently exists through the dunes on the subject property as
an extension of Raleigh Avenue.” The panel also found that “[t]he public [had]
the right to use all of the dry sand and complete horizontal access
to the subject property, including the ocean.” Atlantis was allowed to charge a
reasonable and comparable fee for the use of its beach pursuant to a
DEP-approved fee schedule covering daily, weekly, monthly, and seasonal tags, but only if
the beach club provided lifeguard services comparable to municipally-provided services, beach clean-up with
regular trash removal, and shower facilities. Atlantis could choose not to issue beach
tags or to charge fees for service, in which case public access to
the beach and ocean would remain open and free.
On June 3, 2004, the Appellate Division issued its opinion. Raleigh Ave. Beach
Ass’n v. Atlantis Beach Club, Inc.,
370 N.J. Super. 171 (2004). The court
reaffirmed the central premise of its Order that “Atlantis cannot 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
connected with the ocean and wet sand.” Id. at 176. As permitted under
the Order, Atlantis could charge a fee to members of the public who
remain on and use its beach for an extended period of time, as
long as Atlantis cleans the beach, picks up trash regularly, and provides shower
facilities. Ibid. The panel ruled further that Atlantis was required to provide customary
lifeguard services for members of the public who use the ocean areas up
to the mean high water line, regardless of whether those individuals remain on
the Atlantis beach area or merely pass through. Ibid. Reasonable and comparable fees,
approved by the DEP, would be allowed in an amount sufficient to cover
operating costs, including an amount related to management services. Ibid. The court remanded
to the DEP the issue of the appropriate fee to be charged for
beach use, ordering the Department to approve a fee schedule by June 10,
2004, so as not to unduly interfere with the beach season beginning June
15, 2004. Id. at 194.
On remand, Atlantis submitted an Application for General CAFRA Permit and, on June
10, 2004, the DEP issued an interim beach badge schedule setting fees at
$3 per day, $15 per week, $40 per month, and $55 per season,
effective immediately. Shortly thereafter, Atlantis filed a Notice of Petition for Certification and
moved before the Appellate Division for a stay pending this Court’s review of
its Petition. The Appellate Division denied the motion by Order dated July 19,
2004, wherein the court further directed that all non-member beach badges must be
transferable, that no photo identification requirement may be associated with non-member badges, and
that no liability waiver may be required of anyone seeking a badge. On
August 2, 2004, Atlantis moved before this Court for a stay of the
Appellate Division’s opinion and order pending certification. The Court denied the Atlantis motion
on August 13, 2004, and granted certification on September 29, 2004.
181 N.J. 548 (2004).
At oral argument before us, counsel for Atlantis conceded vertical access to the
ocean by the public from the boardwalk pathway at the terminus of Raleigh
Avenue, over the bulkhead and the dunes and across the dry sand area
to the ocean. Atlantis maintained its position that persons who are not members
of the Beach Club may only walk along the three feet of dry
sand that lie landward of the mean high water line, as so held
by the trial court, and may not use the dry sand beach beyond
that horizontal three-foot strip of sand.
The law we are asked to interpret in this case –- the 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. Borough of Neptune City v. Borough of Avon-by-the-Sea, 61 N.J. 296, 303 (1972). That common law principle, in turn, has roots
in Roman jurisprudence, which held that “[b]y the law of nature[,] . . . the air, running water, the sea, and consequently the shores of the sea,” were “common to mankind.” . . . No one was forbidden access to the sea, and everyone could use the seashore “to dry his nets there, and haul them from the sea . . . .” The seashore was
not private property, but “subject to the same law as the sea itself, and the sand or ground beneath it.”
[Matthews, supra, 95 N.J. at 316-17 (citations and footnote omitted).]
In Arnold v. Mundy,
6 N.J.L. 1, 53 (E. & A. 1821), the
first case to affirm and reformulate the public trust doctrine in New Jersey,
the Court explained that upon the Colonies’ victory in the Revolutionary War, the
English sovereign’s rights to the tidal waters “became vested in the people of
New Jersey as the sovereign of the country, and are now in their
hands.” Arnold, supra, addressed the plaintiff’s claim to an oyster bed in the
Raritan River adjacent to his farm in Perth Amboy. Id. at 45. Chief
Justice Kirkpatrick found that the land on which water ebbs and flows, including
the land between the high and low water, belongs not to the owners
of the lands adjacent to the water, but to the State, “to be
held, protected, and regulated for the common use and benefit.” Id. at 49,
71.
Early understanding of the scope of the public trust doctrine focused on the
preservation of the “natural water resources” of New Jersey “for navigation and commerce
. . . and fishing, an important source of food.” Neptune City, supra,
61 N.J. at 304. In Neptune City, supra, the Court extended public rights
in tidal lands “to recreational uses, including bathing, swimming and other shore activities.”
Id. at 309. We invalidated a municipal ordinance that required non-residents of Avon-by-the-Sea
to pay a higher fee than the residents of Avon were required to
pay to access and use the town’s beaches. Id. at 310. The Court
held:
[A]t least where the upland sand area is owned by a municipality .
. . and dedicated to public beach purposes, a modern court must take
the view that the public trust doctrine dictates that the beach and the
ocean waters must be open to all on equal terms and without preference
and that any
contrary state or municipal action is impermissible.
Later, in Matthews, supra, we considered “the extent of the public’s interest in privately-owned dry sand beaches,” which, we noted, “may [include both] a right to cross [such] privately owned . . . beaches in order to gain access to the foreshore
. . . [and a] right to sunbathe and generally enjoy recreational activities” on the dry sands. 95 N.J. at 322-23. We observed that New Jersey’s beaches constitute a “unique” and “irreplaceable” resource, subject to increased pressure from population growth throughout the region and improved transportation to the shore. Id. at 323. Concerned about the great demand and the limited number of beaches open to the public, we repeated:
Exercise of the public’s right to swim and bathe below the mean high
water mark may depend upon a right to pass across the upland beach.
Without some means of access the public right to use the foreshore would
be meaningless. 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 on, if
not effectively eliminate, the rights of the public trust doctrine.
Matthews clearly articulates the concept already implicit in our case law that reasonable access to the sea is integral to the public trust doctrine. Indeed, as Matthews, supra, points out, without access the doctrine has no meaning. Id. at 323.
That leaves the question raised in this case: 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. Matthews, supra, states unequivocally that a “bather’s right in the upland sands is not limited to passage . . . [and that] [r]easonable enjoyment of the foreshore and the sea cannot be realized unless some enjoyment of the dry sand area is also allowed.” Id. at 325. Because the activity of swimming “must be accompanied by intermittent periods of rest and relaxation beyond the water’s edge,” the lack of an area available to the public for that purpose “would seriously curtail and in many situations eliminate the right to the recreational use of the ocean.” Ibid. Although the Matthews Court did not compare that use of the dry sand to use associated with ancient fishing rights, it did point out that under Roman law, “everyone could use the seashore ‘to dry his nets there, and haul them from the sea
. . . .’” Id. at 317 (quoting Justinian Institutes 2.1.1) (T. Sandars trans. 1st Am. ed. 1876) (footnote omitted). It follows, then, that use of the dry sand has long been a correlate to use of the ocean and is a component part of the rights associated with the public trust doctrine.
The factual context in which Matthews was decided was critical to the Court’s holding. Neptune City, supra, had held that the general public must be allowed to use a municipally- owned dry sand beach on equal terms with residents of the municipality. 61 N.J. at 310; see Van Ness v. Borough of Deal, 78 N.J. 174, 179-80 (1978) (holding that a municipality could not limit public use of municipal beach to fifty-foot strip along high water line when Deal residents and property owners were permitted to use entire beach area). Matthews, supra, involved a private non-profit entity, the Bay Head Improvement Association (Improvement Association), that owned/leased and operated certain upland sand areas in the Borough of Bay Head for the recreational use of Bay Head residents only. 95 N.J. at 314-15. The Improvement Association was closely connected with the municipality, which provided at various points in time, office space, liability insurance, and funding, among other things. Id. at 330. That symbiotic relationship, as well as the public nature of the activities conducted by the Improvement Association, led the Court to conclude that the Improvement Association was in reality a “quasi-public body” bound by the Neptune City holding. Id. at 328, 329.
Although decided on narrow grounds, Matthews established the framework for application of the public trust doctrine to privately-owned upland sand beaches. The Matthews approach begins with the general principle that public use of the upland sands is “subject to an accommodation of the interests of the owner,” and proceeds by setting forth criteria for a case-by-case consideration in respect of the appropriate level of accommodation. Id. at 325-26. The Court’s formulation bears repeating here:
Archaic judicial responses are not an answer to a modern social problem. Rather,
we perceive the public trust doctrine not to be “fixed or static,” but
one to “be molded and extended to meet changing conditions and needs of
the public it was created to benefit.” . . . .
Precisely what privately-owned upland sand area will be available and required to satisfy
the public’s rights under the public trust doctrine will depend on the circumstances.
Location of the dry sand area in relation to the foreshore, extent and
availability of publicly-owned upland sand area, nature and extent of the public demand,
and usage of the upland sand land by the owner are all factors
to be weighed and considered in fixing the contours of the usage of
the upper sand.
Today, recognizing the increasing demand for our State’s beaches and the dynamic nature
of the public trust doctrine, we find that the public must be given
both access to and use of privately-owned dry sand areas as reasonably necessary.
While the public’s rights in private beaches are not coextensive with the rights
enjoyed in municipal beaches, private landowners may not in all instances prevent the
public from exercising its rights under the public trust doctrine. The public must
be afforded reasonable access to the foreshore as well as a suitable area
for recreation on the dry sand.
We turn now to an application of the Matthews factors to the circumstances of this case in order to determine “what privately-owned upland sand area will be available and required to satisfy the public’s rights under the public trust doctrine.” Ibid.
“Location of the dry sand area in relation to the foreshore”:
The dry sand beach at the center of this controversy extends horizontally 480 feet from the Coast Guard property south of Atlantis to the Seapointe property north of Atlantis, and vertically, from three feet landward of the mean high water line about 339 feet to the dunes adjacent to the bulkhead and the Raleigh Avenue extension. It is easily reached by pedestrians using the path bisecting the Raleigh Avenue extension from the end of the paved roadway to the bulkhead.
“[E]xtent and availability of publicly-owned upland sand area”:
There is no publicly-owned beach area in Lower Township, although it was represented to us at oral argument that there are public beaches in the “Wildwoods” north of Lower Township. The Borough of Wildwood Crest, immediately north of Lower Township, owns dry sand beach that is used by the public. Seapointe, a private entity, as required by its 1987 CAFRA permit, has made its upland sands available to the public for a “reasonable” fee, approved by the DEP at a level comparable to fees charged by nearby town beaches (in 1987, Cape May City, Avalon, and Stone Harbor beaches). The Coast Guard beach to the south of Atlantis is closed to the public for the better part of the summer season (April 1 through August 15) to protect the endangered piping plover.
“[N]ature and extent of the public demand”:
The Diamond Beach section of Lower Township is not large (three blocks by nine blocks), and parking is limited but available along the area streets. Local residents whose homes are within easy walking distance of Atlantis are members of the plaintiff Association, through which they have expressed their individual concerns about access and use. That there is enormous public interest in the New Jersey shore is well-known; tourism associated with New Jersey’s beaches is a $16 billion annual industry.
“[U]sage of the upland sand land by the owner”:
The more or less rectangular area of dry sand that constitutes the Atlantis beach has been closed to non-members of Atlantis from the summer of 1996 to May 4, 2004. On May 4, the Appellate Division required open access and use by the public to the entirety of the beach area and permitted reasonable and comparable fees to be approved by the DEP on application by Atlantis. As for the period prior to 1996, the general public used the beach without limitation or fee during the ten years between 1986 and 1996 and, it appears, enjoyed the same open access and use prior to 1986 (although the record is sparse on the issue of prior use). The La Vida condominiums, situated directly to the west of Atlantis, were constructed in 1986. By the La Vida CAFRA permit, the developer/owner accepted as binding a condition on development making the homeowner’s association responsible for public access “to the beach,” with adequate signage, for the life of the condominium project. The permit describes the relationship between the La Vida site and the beach as follows:
The site is adjacent, and provides access points for residents and the public
to the ocean beach, which is about 220’ in width at the site.[
See footnote 9
]
The proposed development will have minimal impact on the beach, but as required
under the policy on Dunes (7:7E-3.21), the remaining dunes must be reconstructed, replanted,
and maintained. Provided an acceptable plan is submitted and implemented for dune enhancement
and management, and provided walkovers to the beach are provided as discussed under
the policies on Dunes (3.21) and Public Access to the Waterfront (8.11), and
as required by conditions of this permit, this policy is met.
Although the permit language is not without ambiguity, and the record is not
clear in respect of the relationship between the developer/owner of La Vida and
the owner of Atlantis, see supra at ___ (slip op. at 5 n.1),
it may be inferred from this section of the permit that open access
and use was ceded to the public by La Vida. Most telling, the
permit describes access to a 220-foot strip of upland sand beach, not the
foreshore. It is difficult to imagine that the DEP (or La Vida) anticipated
anything other than public use of that area. That argument has not been
made by any party, however; we, therefore, will not here consider the permit
dispositive on the issue of public use. Suffice it to say that the
Atlantis beach was used by the public for many years and that public
access and, arguably, public use of 220 feet of ocean beach had been
required as a condition of a CAFRA development permit.
See footnote 10
From the summer of 1996 to May 4, 2004, Atlantis charged unregulated membership
fees in varying amounts for access to and use of its beach. During
the 2003 season, new members (and members who joined in 2002) paid $700
and received eight beach tags per household. In violation of the La Vida
CAFRA permit, in the summer of 2003 Atlantis removed the public beach access
sign at the western end of the Raleigh Avenue pathway extension and replaced
it with a sign that read “FREE Access to Gate Only.” The gate
was located at the end of the pathway at the bulkhead. Later that
summer, contradictory signs at the gate read “PUBLIC BEACH ACCESS” and “PUBLIC ACCESS
ENDS HERE/MEMBERSHIP AVAILABLE AT GATE.” The La Vida permit, however, required
a landscaped public access pathway from the project site entrance down the center
of Raleigh Avenue, and, according to the EIS and original site plan, a
timber walkway over the bulkhead to the beach.
The permit stated:
Although this accessway is minimal, it is considered adequate due to the small
scale of this project. Public parking has not been lost at this site
. . . and on-street parking is available to the public on surrounding
roads. The proposed pathway and walkover will provide reasonable access to the beach,
provided public access signs (available from the [DEP]) are conspicuously located at the
end of Raleigh Avenue pavement. Therefore, as a condition of this permit, within
30 days of issuance, submit for review and approval a site plan specifically
showing the proposed location and detail of the public walkover structure, and the
proposed location of public access signage (a l' x 2' metal sign available
from the [DEP] on a standard metal signpost supplied by applicant), and construct
the accessway improvements in accordance with the approved plan prior to occupancy of
the structure. Maintenance and/or reconstruction of this walkway shall be the responsibility of
the Homeowner’s Association for the life of this project.
On the one hand, guards hired by Atlantis have asked non-members to leave
the beach, and violators have been prosecuted by Atlantis in municipal court. On
the other hand, the DEP has issued notices of violation both to La
Vida and to Atlantis because of the signage infractions, because a section of
the dunes was destroyed by the Beach Club, and because structures were erected
on the beach without CAFRA approval.
The private beach property held by Atlantis is an area of undeveloped upland
sand and dunes at the end of a street in a town that
does not have public beaches. The owner, after years of public access and
use, and despite a condition in the La Vida permit providing for access
and, arguably use, decided in 1996 to engage in a commercial enterprise --
a private beach club -- that kept the public from the beach. Atlantis
recognizes that as a “place of public accommodation,” N.J.S.A. 10:5-5l, under the Law
Against Discrimination, N.J.S.A. 10:5-1 to -42, it must provide membership opportunities to the
general public without regard to race, creed, or color, Clover Hill Swimming Club
v. Goldsboro,
47 N.J. 25, 33-35 (1966). See N.J.A.C. 7:7E-8:11(b)(5) (requiring “establishments .
. . [that] control access to tidal waters [to] comply with the Law
Against Discrimination”). The Beach Club nonetheless asserts that it will lose one of
the “sticks” in its bundle of property rights if it cannot charge whatever
the market will bear, and, in setting fees for membership, decide who can
come onto its property and use its beach and other services (lifeguards, trash
removal, organized activities, etc.). But exclusivity of use, in the context here, has
long been subject to the strictures of the public trust doctrine.
In sum, based on the circumstances in this case and on application of
the Matthews factors, we hold that the Atlantis upland sands must be available
for use by the general public under the public trust doctrine. In so
holding we highlight the longstanding public access to and use of the beach,
the La Vida Cafra permit condition, the documented public demand, the lack of
publicly-owned beaches in Lower Township, and the type of use by the current
owner as a business enterprise. We also adopt the construct put forward by
the Appellate Division in connection with an appropriate fee structure for use of
the beach by the public. That issue, however, requires further discussion.
As noted by the Appellate Division, Atlantis is willing to “extend[], without fee, its lifeguard services to members of the public who use the ocean but do not remain on its property.” Raleigh Ave., supra, 370 N.J. Super. at 189. Although Atlantis claims that the DEP lacks jurisdiction to approve any fees charged by the Beach Club for its other services, the panel rejected that claim:
CAFRA was enacted by the Legislature in 1973. In re Egg Harbor Assocs.,
94 N.J. 358, 362 (1983). Although CAFRA is primarily an environmental protection statute,
“the powers delegated to DEP extend well beyond protection of the natural environment.”
Id. at 364. Specifically, CAFRA delegates powers to the DEP and requires it
to adopt rules and regulations governing land use within the coastal zone “for
the general welfare.” Ibid. The [L]egislature amended CAFRA in 1993, significantly expanding its
jurisdiction. In re Protest of Coastal Permit Program Rules,
354 N.J. Super. 293,
310 (App. Div. 2002).
More specifically, CAFRA regulates activities in the coastal zone by requiring developers/property owners to obtain a permit from the DEP before undertaking “the construction, relocation, or enlargement of any building or structure and all site preparation therefore, the grading, excavation or filling on beaches or dunes, . . . includ[ing] residential development, commercial development, industrial development, and public development.” N.J.S.A. 13:19-3; see Protest of Coastal Permit Program Rules, supra, 354 N.J. Super. at 310 (citing N.J.S.A. 13:19-5, 19-5.2, 19-5.3).
The DEP exercises its statutory authority under CAFRA through the Coastal Permit Program Rules, N.J.A.C. 7:7-1.1 to
-10.6, and the Coastal Zone Management Rules, N.J.A.C. 7:7E-1.1 to -8.22; see Protest of Coastal Permit Program Rules, supra, 354 N.J. Super. at 312. The Coastal Permit Program Rules directly address permitting requirements for “[a]ny development located on a beach or dune.” N.J.A.C. 7:7-2.1(a)(1). Such development, which consists of dune walk-over and boardwalk structures, is regulated by N.J.A.C. 7:7E-3A.1 to -3A.5; see N.J.A.C. 7:7E-3A.5 (providing standards for construction of boardwalks) and N.J.A.C. 7:7E-3A.4 (providing standards for dune creation and maintenance). Pertinent to this case, “[d]une creation and maintenance includes the . . . maintenance and clearing of beach access pathways less than eight feet in width, and the construction or repair of approved dune walkover structures.” N.J.A.C. 7:7E-3A.4(a).
We agree with the Appellate Division that the boardwalk pathway over the dunes to the Atlantis beach qualifies as a development, thereby triggering the DEP’s CAFRA jurisdiction over related use of the beach and ocean. See Raleigh Ave., supra, 370 N.J. Super. at 191. We find jurisdiction also in the DEP’s general “power to promote the health, safety, and welfare of the public.” In re Egg Harbor Assocs., supra, 94 N.J. at 372. We hold that the broad scope of the DEP’s authority includes jurisdiction to review fees proposed by Atlantis for use of its beach. We expect that the DEP will use N.J.A.C. 7:7E-8.11(b)4, which limits fees at publicly-owned beaches to an amount “required to operate and maintain the facility” as a guide, and that fees will not be approved if they operate to “[l]imit access by placing an unreasonable economic burden on the public.” Raleigh Ave., supra, 370 N.J. Super. at 193. Finally, we approve the approach taken by the Appellate Division wherein the panel recognized that Atlantis, as a private entity, should be allowed to include expenses actually incurred for reasonable management services (in addition to reimbursement for other costs) in the fee calculation. Ibid. We add only that DEP-approved fees are unrelated to the independent and inherent right of Atlantis to provide cabanas for rent, See footnote 11 at a rate determined by the Beach Club and after obtaining a permit to construct or place such buildings on its property, or to engage in other similar business enterprises for profit, e.g., beach chair rentals, food concessions, etc.
For the reasons expressed in this opinion, the decision of the Appellate Division is affirmed.
JUSTICES LONG, LaVECCHIA, ZAZZALI and ALBIN join in CHIEF JUSTICE PORITZ’s opinion. JUSTICE WALLACE filed a separate dissenting opinion in which JUSTICE RIVERA-SOTO joins.
SUPREME COURT OF NEW JERSEY
A- 40 September Term 2004
RALEIGH AVENUE BEACH ASSOCIATION,
Plaintiff-Respondent,
v.
ATLANTIS BEACH CLUB, INC. f/k/a CLUB ATLANTIS ENTERPRISE,
Defendant-Appellant,
and
SEAPOINTE VILLAGE ASSOCIATION and LOWER TOWNSHIP POLICE DEPARTMENT,
Defendants,
and
THE STATE OF NEW JERSEY,
Defendant-Respondent.
ATLANTIS BEACH CLUB, INC.,
Plaintiff-Appellant,
v.
TONY LABROSCIANO, individually and on behalf of
those similarly situated and TOWNSHIP OF LOWER,
Defendants,
and
THE STATE OF NEW JERSEY,
Defendant-Respondent.
JUSTICE WALLACE, JR., dissenting.
I would reverse and reinstate the judgment of the trial court granting access
to the ocean and an easement across the private sand area owned by
the Atlantic Beach Club to access the beach at Seapointe. However, because a
three-foot-wide strip would not easily allow for an adult and child to walk
within that limited area, I would expand the horizontal access across defendant’s property
to a ten-foot-wide strip above the high water mark.
As the majority opinion makes clear, this Court has not previously defined the rights that the public has to privately- owned beaches. Because “it has been long established that the individual States have the authority to define the limits of the lands held in public trust and to recognize private rights in such lands as they see fit[,]” Phillips Petroleum Co. v. Mississippi, 484 U.S. 469, 475, 108 S. Ct. 791, 794-95, 98 L. Ed.2d 877 (1988), the lands subject to the public trust doctrine are to be determined by each State.
New Jersey was the first state to recognize and apply the public trust doctrine:
The public trust doctrine is the legal principle that the submerged lands and waters below mean highwater mark are owned by the state government in trust for public uses such as transportation and fishing. In 1821 the New Jersey Supreme Court was the first in the United States to verify its application in the New World, in Arnold v. Mundy[, 6 N.J.L. 1 (1821)]; in 1842 the U.S. Supreme Court reaffirmed that court’s ruling in Martin v. Waddell[‘s Lessee, 41 U.S. 367, 16 Pet. 367, 10 L. Ed. 997 (1842)]. Both came about because of conflicts over rights to oyster grounds in the Raritan River and Bay . . . . The outcome was recognition of the state’s ownership as trustee for the people of the state. Subsequently, the doctrine has played important roles in waterfront development, uses and management of . . . wetlands, and public access to riverfronts and beaches.
[Encyclopedia of New Jersey 665-66 (Maxine N. Lurie & Marc Mappen eds., 2004).]
We have interpreted the public trust doctrine to require broad public access to
those lands that are held in public trust. Borough of Neptune City v.
Borough of Avon-by-the-Sea,
61 N.J. 296, 308-09 (1972) (noting that public trust doctrine
dictates that when municipality owns upland sand, beach and ocean must be available
on equal terms to entire public); Van Ness v. Borough of Deal,
78 N.J. 174, 179-80 (1978) (noting that public trust doctrine requires that public have
use and enjoyment of beaches owned by municipality). In Neptune City, supra, we
recognized that “[t]he public trust doctrine . . . should be molded and
extended to meet changing conditions and needs of the public it was created
to benefit.” 61 N.J. at 309.
We addressed for the first time the extent of the public’s interest in privately-owned dry sand beaches in Matthews v. Bay Head Improvement Ass’n, 95 N.J. 306, cert. denied, sub nom. Bay Head Improvement Ass’n v. Matthews, 469 U.S. 821, 105 S. Ct. 93, 83 L. Ed.2d 39 (1984). The key issue in that case was whether the public has the right of access to tidal lands through privately-owned dry sands. Id. at 312. The municipality did not own any of the dry land. Ibid. Because the Bay Head Improvement Association (Improvement Association) either owned or leased the beachfront parcels so that its members had access to Bay Head’s one-and-one-quarter mile beachfront, the public could not access the ocean through the dry sand. Id. at 314-15. The plaintiffs filed suit seeking the right of access to the beaches in Bay Head as public trust lands, and the right to use private property fronting on the ocean incidental to the public’s right under the public trust doctrine. Id. at 312-13. The trial court granted summary judgment in favor of the defendant and dismissed the complaint. Id. at 313. The Appellate Division affirmed with one judge dissenting. The plaintiff appealed as of right, Rule 2:2-1(a), and we granted the plaintiff’s petition for certification. Ibid.
Initially, we reviewed the development of the public trust doctrine. In describing the public’s right of entry to the water, we explained that “[t]he test is whether those means are reasonably satisfactory so that the public’s right to use the beachfront can be satisfied.” Id. at 325. We found that the public cannot reasonably enjoy the ocean unless there is also available the use of the dry sand to rest and relax. Ibid. We concluded that “where use of dry sand is essential or reasonably necessary for enjoyment of the ocean, the doctrine warrants the public’s use of the upland dry sand area subject to an accommodation of the interests of the owner.” Ibid. (footnote omitted). We emphasized that each particular circumstance will determine “[p]recisely what privately-owned upland sand area will be available and required to satisfy the public’s rights under the public trust doctrine[.]” Id. at 326. In striking a fair balance between the rights of the public and the interests of the private owner, we listed the following factors that should be considered: (1) the location of the dry sand in relation to the foreshore; (2) the extent and availability of publicly-owned beaches; (3) the nature and extent of the public demand; and (4) the owner’s usage of the dry sand area. Ibid.
In applying those factors, we first noted that the Improvement Association was a quasi-public organization whose activities “paralleled those of a municipality.” Id. at 330. Next, we found that there was no publicly-owned beach and that the Improvement Association’s limited membership to the residents prevented the public from enjoy the beach and ocean. Id. at 331. Consequently, we concluded that the record demonstrated “that a right of access to the beach . . . as well as the right to use the Association’s upland dry sand[]” area was required. Id. at 333.
Thus, in Matthews, the entirety of the beach was privately-owned, but by a quasi-public organization. Even though we held that those circumstances dictated that the public have reasonable access to the ocean and the use of privately-owned dry sand beach, we recognized that each case must be decided “upon the specific facts in controversy.” Ibid.
This case requires us to apply the Matthews test in evaluating the competing interests of the public to reasonable access and use of the ocean and dry beach against the interests of the private landowner to use and enjoy its land. The first factor of the Matthews test, the location of the dry sand area in relation to the foreshore, weighs in favor of plaintiff. The dry sand area of the Beach Club is directly adjacen