Raleigh Avenue Beach Ass'n v. Atlantis Beach Club, Inc.

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.

I.

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.

*63 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 , 294 A.2d 47 (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 , 393 A.2d 571 (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 , 294 A.2d 47 .

A.

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 , 471 A.2d 355 , cert. denied, 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, 471 A.2d 355 . 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 *64 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 , 471 A.2d 355 . 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 , 471 A.2d 355 . The trial court granted summary judgment in favor of the defendant and dismissed the complaint. Id. at 313 , 471 A. 2d 355 . The Appellate Division affirmed with one judge dissenting. The plaintiff appealed as of right, Rule 2:2-l(a), and we granted the plaintiffs 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 , 471 A.2d 355 . 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 “[precisely what privately-owned upland sand area will be available and required to satisfy the public’s rights under the public trust doctrine[J” Id. at 326 , 471 A. 2d 355 . 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 “paral *65 leled those of a municipality.” Id. at 330 , 471 A.2d 355 . 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 enjoying the beach and ocean. Id. at 331 , 471 A.2d 355 . 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 , 471 A.2d 355 .

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.

B.

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 adjacent to the wet sand and ocean and there are no barriers or structures creating any division between the two areas. Further, there is no direct access to the water except over the Beach Club property. In fact, defendant concedes that access to the ocean may be over its privately-owned property, and that the public has the right to use its property “at and below the mean high water line.”

The second factor, the extent and availability of publicly-owned upland sand area, weighs in favor of defendant. The evidence shows that Seapointe is adjacent to the Beach Club and that Seapointe allows the public access and use of its beach. Thus, there is a beach in close proximity to the Beach Club that will *66 permit the public to enjoy the beach without interfering with the rights of a private beach owner.

The third factor, the nature and extent of public demand, weighs in favor of plaintiff, at least with regard to access. There are a large number of multi-story condominium buildings in the Diamond Beach neighborhood adjacent to the Beach Club property that were constructed on land sold to the developers by one of defendant’s principals. The numerous residents of those buildings seek to use the ocean. Thus, there is a public demand for reasonable access across the Beach Club’s private property.

The final factor is the usage of the upland sand by the owner. Defendant uses its beach as a private-for-profit beach club, and offers two types of memberships, an annual membership and a lifetime easement. In 2003, the annual membership fee was $700 and the lifetime easement fee was $10,000. Defendant provides its members with security, beach maintenance, lifeguards, and some recreational activities. The only improvement on the land is the boardwalk. Therefore, I find that this factor weighs in favor of defendant.

The majority opinion discusses the La Vida CAFRA permit and concludes from its language that “it may be inferred from this section of the permit that open access and use was ceded to the public by La Vida.” Ante at 58, 879 A.2d at 123. It recognizes, however, that none of the parties make this argument and concludes that “we, therefore, will not here consider the permit dispositive on the issue of public use.” Ibid. The majority also notes that the DEP has noticed La Vida and the Beach Club for signage infractions, dune destruction, and improper erection of structures on the beach. Id. at 58, 879 A.2d at 123. Tellingly, the DEP has not issued a notice of violation to the Beach Club for failure to allow the public to use its beach. Irrespective of that, the majority, in part, relies on the La Vida CAFRA permit conditions to conclude that the public trust doctrine should be expanded to make the upland sands of the Beach Club available to the general public. The Court, however, should not consider the *67 La Vida CAFRA permit because of its ambiguous language. Unlike the La Vida permit, the 1987 CAFRA permit for the adjacent Seapointe property development made clear that the beach in front of Seapointe was required to be open to the public. Most importantly, because the parties did not brief this issue, I do not consider the conditions of the La Vida CAFRA permit in my discussion.

In balancing the above factors, it is obvious that the greater weight favors access to the ocean and the use of the water below the mean high water mark. Defendant recognizes and concedes that plaintiff has a right of access over its land and the use of the ocean. However, because there is an adjacent beach to defendant’s private property that is available to the public, I find no need to apply the public trust doctrine beyond access to the ocean and access to a reasonable area across defendant’s property to the adjacent Seapointe. In my view, that strikes a proper balance between the public trust doctrine, which requires reasonable access and use of the ocean and beaches, and a private owner’s right to use its private property as it deems fit. The record here amply supports the conclusion that access to the water and to Seapointe over defendant’s privately-owned beachfront will reasonably satisfy the public need at this time. I see no justification to exceed that minor intrusion.

II.

I agree with the position of the State before the trial court that the three-foot access across defendant’s land to Seapointe was insufficient and that the public was entitled to unrestricted use of a reasonable area of dry sand, “which [the State] considers to be an area at least 10 feet wide above the mean high water line.” In my view, ten feet is a reasonable area for a family to safely traverse defendant’s property to reach Seapointe without excessively impinging on defendant’s property rights. Moreover, for those members of the public who elect to use the beach and ocean at that location, the ten-foot area will also give them limited use of *68 the beach. Under the circumstances of this case, that is the only-reasonable accommodation that we should require to enforce the public trust doctrine.

Justice RIVERA-SOTO joins in this opinion.

For affirmance—Chief Justice PORITZ, Justices LONG, LaVECCHIA, ZAZZALI, and ALBIN—5.

For reversal and reinstatement—Justices WALLACE and RIVERA-SOTO—2.