879 A.2d 112 (N.J. 2005)
In 1907, the State of New Jersey issued a Riparian Grant encompassing submerged land that later became Block 730.02, Lot 1.02 in Lower Township, Cape May County.1 Atlantis Beach Club, Inc. is the successor in title to that property, which consists of dry sand beach extending roughly 342 feet from a bulkhead along the western boundary to the mean high water line, together with protected dunes.2 The property lies in the Diamond Beach neighborhood of Lower Township.3 This residential area spans approximately three blocks by nine blocks and contains the only Atlantic Ocean beach in the township.4 Lower Township has no municipally owned public beaches.5
In 1986, the Department of Environmental Protection issued a CAFRA permit authorizing construction of the La Vida del Mar Condominiums immediately west of the Atlantis bulkhead.6 The permit required a public access pathway down the center of Raleigh Avenue, a timber walkway over the bulkhead to the beach, and maintenance of signs marking the access point for the life of the project.7 In 1987, a CAFRA permit for the neighboring Seapointe Village development to the north required the beach in front of Seapointe to remain open to the public at daily, weekly, and seasonal rates subject to DEP approval.8
Until the summer of 1996, the Atlantis beach remained open to the general public without charge or restriction.9 Beginning in 1996, Atlantis converted the property into a private beach club, charging seasonal membership fees that reached $700 for eight beach tags per household in 2003 and offering lifetime access easements for $10,000.10 The club posted signs stating that non-members attempting to use the property would be subject to prosecution.11 It employed security personnel to exclude individuals without valid tags from the dry sand area.12
On June 22, 2002, a member of the Raleigh Avenue Beach Association received a trespassing summons while crossing the Atlantis property.13 Atlantis filed suit seeking to enjoin public access and use, and the Association filed a separate action alleging violation of public rights; the two actions were consolidated.14 In June 2003, the DEP issued an administrative order finding that Atlantis had violated CAFRA by excavating dunes and erecting structures without required permits.15
After a bench trial, the trial court on September 19, 2003, held that the public was entitled to a three-foot-wide horizontal strip of dry sand immediately landward of the mean high water line plus a vertical path through the dunes, but could not be charged a fee for such access.16 The Appellate Division on June 3, 2004, expanded public rights to the entire dry sand area and permitted Atlantis to charge reasonable, DEP-approved fees for services such as lifeguards, trash removal, and showers.17 The Supreme Court granted certification on September 29, 2004.18
Whether the public trust doctrine requires privately owned dry sand beach areas to be open to the general public for recreational use?19
The Public Trust Doctrine is not fixed or static. It must be molded and extended to meet changing conditions and needs of the public it was created to benefit.20 Therefore the doctrine entitles the public to use privately owned dry sand areas for intermittent recreational purposes such as sunbathing, reading, and picnicking when such use is reasonably necessary.21 The determination requires weighing the Matthews factors. The factors are the location of the dry sand area in relation to the foreshore, the extent and availability of publicly owned upland sand area, the nature and extent of the public demand, and the usage of the upland sand land by the owner.22
Yes. The Atlantis property's dry sand beach lies directly adjacent to the foreshore with no barriers or structures creating any division.23 This satisfies the first Matthews factor in favor of public use. There are no municipally owned beaches in Lower Township. The Coast Guard beach is closed for most of the summer to protect an endangered species. Seapointe's access is limited to DEP-approved fees.24 These facts satisfy the second factor in favor of public need. The Diamond Beach neighborhood contains numerous multi-story condominiums whose residents seek beach access. New Jersey shore tourism is a sixteen billion dollar annual industry.25 These facts satisfy the third factor.
Atlantis used the beach openly without limitation or fee from at least 1986 until 1996. It then converted the beach to a private club charging high unregulated fees. It excluded the public with security personnel.26 This satisfies the fourth factor in favor of public use. Therefore the public trust doctrine requires the Atlantis dry sand to be open to the general public for recreational use.27
The public trust doctrine requires privately owned dry sand beach areas to be open to the general public for recreational use under the circumstances presented.28
Related opinions on this issue
Joined by Justice Rivera-soto
Justice Wallace would reverse and reinstate the trial court's judgment granting access to the ocean and a ten-foot-wide strip of dry sand for access to Seapointe.29 He found that the second Matthews factor weighs in favor of defendant because Seapointe allows public access and use of its beach. Thus there is a beach in close proximity that will permit the public to enjoy the beach without interfering with the rights of a private beach owner.30
In his view the balance favors only limited intrusion on private property rights rather than full use of the upland sands. The record 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. He sees no justification to exceed that minor intrusion.31
Whether the Department of Environmental Protection has authority to review and approve fees charged by a private beach club for public use of its upland sand beach?32
CAFRA delegates broad powers to the DEP to regulate land use in the coastal zone for the general welfare. This includes development on beaches and dunes.33 The authority extends to reviewing fees proposed by private owners for use of the beach.34 The review ensures fees do not limit access by placing an unreasonable economic burden on the public. The DEP may still allow reimbursement for reasonable management services.35
Yes. The boardwalk pathway over the dunes to the Atlantis beach qualifies as development. This triggers the DEP's CAFRA jurisdiction over related use of the beach and ocean.36 The DEP's general power to promote the health, safety, and welfare of the public further supports jurisdiction to review fees proposed by Atlantis for use of its beach.37
The DEP is expected to use standards that limit fees to amounts required to operate and maintain the facility. It must disapprove fees that operate to limit access by placing an unreasonable economic burden on the public.38 The DEP may still allow Atlantis to include expenses actually incurred for reasonable management services in the fee calculation.39
The Department of Environmental Protection has authority to review and approve fees charged by a private beach club for public use of its upland sand beach.40