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JimG

NJ beach access rights - goes to State Sup Court.

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i was surprised i didn't see this topic. maybe i missed it. One to watch.

 

http://www.nj.com/search/index.ssf?/...starledger?nnj

 

 

Top court hears arguments on public's beach access

Thursday, January 20, 2005

BY ROBERT SCHWANEBERG

Star-Ledger Staff

In a case that pits the rights of private property owners against the public's enjoyment of the ocean, the New Jersey Supreme Court heard arguments yesterday on how much of the dry sand above high tide is open to any beachgoer.

 

A trial judge said 3 feet. But a three-judge appeals court disagreed and ordered the Atlantis Beach Club in Lower Township, Cape May County, to allow anyone willing to buy a $3 daily pass to use all of its dry sand, which stretches 150 feet from high tide to the dunes.

 

The beach club, which wants to reserve its sand for members who buy a $700-a-year family membership, contends that ruling violates its constitutionally protected property rights.

 

"If you can't say to someone, 'Move off my private property,' you've lost one of your rights," Robert Gilson, a Morristown lawyer representing the beach club, told the justices.

 

Assistant Attorney General Stefanie Brand argued that the appeals court correctly protected the rights of ocean bathers in a township that has no public beaches.

 

"The ownership of beachfront property is different," Brand said, because, under a doctrine that goes back to Roman times, the public has always had a right to use the ocean and a portion of the beach above it.

 

Just how big that portion is has never been clearly settled in New Jersey. The justices, when they reach a decision, could determine whether members of the public have a right to put down their blankets and beach chairs on the sand in front of someone else's privately owned Shore house.

 

The court left that question unanswered in 1984 when it ordered the Bay Head Improvement Association, a quasi-public entity that acted like a municipality by hiring 40 lifeguards and other employees, to open its 1 1/4 miles of beach to nonresidents.

 

Chief Justice Deborah Poritz said that case "gave a signal" that all private beach property might be open to public use.

 

Gilson said the public's right to use the ocean does not extend that far.

 

"The public's right is to go into that water and enjoy their property. When they come out, they're invading private property," Gilson said.

 

He said the beach club is willing to allow the public to cross its sand, for free, to reach the ocean and to walk along a 3-foot-wide strip of sand above the high tide line.

 

Stuart Lieberman, the lawyer for a group of Lower Township residents challenging the beach club's high fees, called that concession "a late-breaking development" that addressed one of the major reasons his clients went to court. But he argued that 3 feet of dry sand is not enough.

 

"Is that large enough for a folding chair?" Justice Barry Albin asked Gilson.

 

"No," Gilson replied, adding that someone who only wants to swim does not need a folding chair. He argued that if the club has to allow anyone to set up a beach chair on its sand, then so does everyone else who owns beachfront property.

 

Some justices and lawyers questioned whether the court must go that far to decide the case.

 

Justice Roberto Rivera-Soto noted that, unlike the owner of a typical beachfront home, the Atlantis Beach Club is a commercial venture willing to sell memberships.

 

"Aren't we only arguing about how much?" he asked.

 

Poritz suggested that allowing the state Department of Environmental Protection to set beach fees was similar to state regulation of utility rates.

 

Andrew Provence, a lawyer for the American Littoral Society, told the justices that some beach property owners "have engaged in shameful tactics" such as erecting fences and "No Trespassing" signs and "hiring security guards to act as bouncers." He urged the justices to uphold the state's right to protect the public from "exorbitant beach fees."

 

 

Robert Schwaneberg covers legal issues. He can be reached at rschwaneberg@starledger.com or (609) 989-0324

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"The ownership of beachfront property is different," Brand said, because, under a doctrine that goes back to Roman times, the public has always had a right to use the ocean and a portion of the beach above it.

 

<snip>

 

Gilson said the public's right to use the ocean does not extend that far.

 

"The public's right is to go into that water and enjoy their property. When they come out, they're invading private property," Gilson said.

 

He said the beach club is willing to allow the public to cross its sand, for free, to reach the ocean and to walk along a 3-foot-wide strip of sand above the high tide line.

 

Here's a question - if the public has this right to access said sand - what right did someone have to sell that sand in the first place?

 

And if you court finds that the public has been denied access to public property that was never supposed to be sold in the first place, does the public have a right to sue the commercial entity for illegally depriving them of that access for decades?

 

TimS

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Since our family's house is very close to the area in question, I have seen the tactics of these people. Deplorable. I want to point out that when that piece of beach was first zoned off, the beach was relatively narrow. Over the years, the Wildwood beaches have been sanding in at a frightening pace, and the beach is now much, much wider. Where does their property line start and finish? Do they get to claim as their own land beach that was not there when they bought the property? My position (weak, yes) is that their property rights start and finish at the original dimensions of the beach when they move in. The portion of the beach that has expanded since they moved in is not theirs, and belongs to the public. We should charge members of the beach club a fee to access our ocean.

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I'll need to give it a reread, but I think the Public Trust Doctrine effects property to the "historic" high tide line.

 

Of course the lawyers can make a fortune arguing the term "historic"

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Of course the lawyers can make a fortune arguing the term "historic"

 

Lawyer can make a fortune arguing about arguing wink.gif

 

TimS

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Here's a question - if the public has this right to access said sand - what right did someone have to sell that sand in the first place?

 

TimS

 

Well Tim, you might have to take that one up with the State of NJ, considering that that's who sold the land, took the money, and signed the deed in 1907.

 

Believe me friends, as I know the parties involved very well, this one isn't close to over.

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Well Tim, you might have to take that one up with the State of NJ, considering that that's who sold the land, took the money, and signed the deed in 1907.

 

Good...thanks...I wasn't planning on taking it up with anyone smile.gif It's was a "what if" question. Cause if the courts determine that publice property begins 10 or 20ft from the high tide line, isn't that the court essentially telling NJ that it had no right to sell the land 10 or 20ft from the high tide line in the first place?

 

Just because NJ sold something doesn't necessarily it was theirs to sell - ultimately, isn't that what this argument comes down to? And in those 1907 sales, what was the eastern most boundary as stated in the deed?

 

TimS

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Just because NJ sold something doesn't necessarily it was theirs to sell - ultimately, isn't that what this argument comes down to? And in those 1907 sales, what was the eastern most boundary as stated in the deed?

 

TimS

 

In the many lawsuits brought over the years there has not been one court that had the guts to render a solid judgement concering those 1907 sales and the publics right to access. They prefer to try and please everyone involved by negotiating a settlement that some how or another we the general public come out on the short end of the stick

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In the many lawsuits brought over the years there has not been one court that had the guts to render a solid judgement concering those 1907 sales and the publics right to access.

 

There's gonna come a time when some judge in some court somewhere is gonna have to make that tough call and define the boundaries of surf side "public" property.

 

Actually...if you think about it, it'll probably never happen. Why would lawyers want to reach a potentially permanent conclusion to an issue that assures them lengthy and costly court battles? It's like drug companies wanting to cure cancer or oil companies wanting to develop an engine that runs on water wink.gif

 

TimS

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So what if the courts determine that public property begins 10 or 20ft from the high tide line . If there is not adequate free parking available,(ie no parking signs), the courts could rule the entire beach is public land and it would not help us one ounce. Where we do not have access & parking rights,we should not allow our tax dollars be used for storm damage recovery etc.

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