Private Beaches Must Allow Access

[johnnymk]

Published in the Asbury Park Press 07/27/05

The state Supreme Court on Tuesday upheld an appeals court ruling that the public has a right to use portions of a private beach for sunbathing, and that the state can regulate what fees can be charged for that right.

With two dissenting votes, the court ruled Atlantis Beach Club Inc. in Lower Township, Cape May County, could not bar people from using its beach without paying memberships, which amount to $700 for eight beach tags. Because Atlantis constructed a wooden walkway over the dunes, the club fell within guidelines that triggered the state Department of Environmental Protection's jurisdiction over beach fees. The DEP set fees at $55 for the season, $40 monthly, $15 weekly and $3 daily.

The court confirmed the state's argument that the doctrine of public trust — a concept relating to the ownership, protection and use of essential natural and cultural resources — applies equally to private beaches, said Stefanie Brand, an assistant attorney general.

The case originated in 2002 when the Raleigh Avenue Beach Association filed a complaint against the club, claiming violation of the public trust doctrine.

Sophie Bubis, a 82-year-old Loch Arbour resident who has been fighting a beach-access battle with waterfront property owner Jack Kassin, welcomed Tuesday's ruling as "terrific" news. But she wondered if it would allow people to sit on the beach.

"You can't enjoy the beach if you are not sitting," said Bubis, whose case is expected to be heard in court soon. "If I want to see trees and trunks, I would go west."

CRAB hails ruling

Ralph Coscia, president of the Point Pleasant Beach-based Citizens' Right to Access Beaches, said he hopes the decision will send a message to other private beach owners: Just because you pay taxes on the property doesn't mean the public is not allowed to cross that beach.

"This decision is just another notch in the belt to help us and to also help some of these homeowners to understand here are some restrictions on your privacy," Coscia said.

Coscia said the case also affirmed that the DEP has some powers over fees. The citizens group may next focus on determining what a reasonable fee for beach access should be and then making sure that those private beach owners are charging no more than that amount, Coscia said.

For Raleigh Avenue property owner Carmen Axmann of Blackwood, the decision was a long time coming. Axmann purchased beach tags from Seapointe Village, another privately owned beach adjacent to Atlantis. The DEP has regulated Seapointe's fees for years.

"We were going to buy eight tags from Atlantis for $55 each, but they wouldn't take a check," Axmann said. "They would for the $700."

With the ruling, she and her tenants can cut through the Atlantis Beach to Seapointe. "Before the case went to court, we had to walk seven blocks to the Seapointe beach," Axmann said.

Representatives for Atlantis did not return calls for comment.

"We think this is the end of the case," said Stuart J. Lieberman, who represented the Raleigh Beach association. "It's time for hardball tactics to end. I think reasonable minds have to prevail."

Sees statewide impact

Environmental groups and at least one legislator applauded Tuesday's decision.

Tim Dillingham of the American Littoral Society, a Sandy Hook-based environmental group, said the ruling will fundamentally change the way the public has access to the Jersey Shore.

He said many beaches, particularly on Long Beach Island and north, are private. He believes the Supreme Court ruling "gives groups like the Littoral Society legal ammo" to fight for public access requirements for those beaches. He added the decision should spur the state to better integrate facilities such as public parking and restrooms into plans for beach reconstruction projects.

"It's a strong legal foundation for the state to advance public use of the shoreline," Dillingham said.

Some 26 percent of New Jersey's 127-mile coastline is controlled by private owners, said Assembly Deputy Majority Leader Neil M. Cohen, D-Union, a longtime advocate for free beach access.

"This decision may not reverse the precedent of private beach ownership in this state, but it certainly sends the message that private beach owners may not gouge the public or abuse the privilege of owning waterfront property," Cohen said.

Axmann said the Atlantis is still charging $700 a year for membership to its club, or $10,000 for a lifetime easement. In exchange, members can rent chairs and cabanas and buy food from vendors, which are supposedly off limits to nonmembers. "They give you the right to spend more money," said Axmann. "I think it would be better to clear this up. It shouldn't be that complicated to go to the beach."

Brand said Atlantis can still make money off its land by charging people for exclusive use of such things as cabanas or by providing a swimming pool and changing area as at Seapointe Village.

[Merlin]

Amazing that they can get away with holding a beach hostage. I'm all for property rights but it seems to me that beaches are really a community good.

[DarkFury]

Sun of a beach.... :heh:

[TruckStuff]

Well its good to see socialism alive and well in this country. :rolleyes: A private corporation spends its own money to build access to on otherwise inaccessible beach and the government comes in and says "Thank you very much for building this, and by the way, its no longer yours". WTF??

[johnnymk]

Well its good to see socialism alive and well in this country. :rolleyes: A private corporation spends its own money to build access to on otherwise inaccessible beach and the government comes in and says "Thank you very much for building this, and by the way, its no longer yours". WTF??

Normally, I would agree with you. But I don't recall that there are inaccessible beaches in N.J., especially in South Jersey. There are few rugged areas along the coast compared to California. The walkway is probably just for convenience.

And after a hurricane, I am sure that these members would be the first to cry out to the Federal Government to replenish any resulting damages and to the loss of sand.

But I am wondering who will pay for the trash removal that vistors will leave after sunbathing there.

[Grimm]

Well its good to see socialism alive and well in this country. :rolleyes: A private corporation spends its own money to build access to on otherwise inaccessible beach and the government comes in and says "Thank you very much for building this, and by the way, its no longer yours". WTF??
Ummmm... in case you weren't paying attention, they wanted to cross from one side of the beach to the other because it was a shorter walk. The beach was already accessable.
If you want to keep your beach private you have to say within certain regulations, they did not.

[Merlin]

I like the California model much better where the public has access to beaches.

[ufcrusher]

There is no question that the public has access rights to the waterfront. You cannot fence off your beach area down to the waterline but you could theoretically do it right until the waterline. It seemed to me that people want to USE other people private land. The test usually has been the high water mark was the limit of public domain, which honestly doesnt really give people anywhere to sit. These people think that the ENTIRE beach should be theirs to use. Greedy sons of guns.

If you paid a ton of money for beach front property with your own private beach, you wouldnt want John Q Public walking on your property. Its trespassing no question and intrudes on your privacy. If you dont see the logic in this, you are either daft or just jealous that someone else owns the property.

[Merlin]

If you paid a ton of money for beach front property with your own private beach, you wouldnt want John Q Public walking on your property. Its trespassing no question and intrudes on your privacy. If you dont see the logic in this, you are either daft or just jealous that someone else owns the property.
It is not jealousy but rather a question of what should belong to the community. To me it would be like a private firm buying the Grand Canyon. Our shorelines are a national treasure and as such should be accessible. Many parts of this country have this land set aside as public parks - see most of California - and I personally think that is a good thing.

[ufcrusher]

The public has a legal right of access to the beach and officially owns up to the high tide mark.....they can walk and enjoy these areas. They can even sit on the sand up to but not past the high tide mark. Its a natural control on the number of visitors, prevents errosion from people, and helps control trash/pollution in these areas.
For example, nesting sea turtles go above the high tide mark to lay their eggs. Since people cannot trespass on private property above the high tide mark, in effect the turtle eggs are better protected.

In my experience areas of beach that are privately owned are generally in much better condition than traditonal public beaches. While I understand why in an idealized world no one should own the beach, this world is far from ideal.

I should probably state that I am concerned not with these beach combines that try to make money from allowing access to their clubs, but rather to private owners.

Lets say Merlins magic wand back massager hits it big in the adult industries. Suddenly, flush with more money that any man other than Warren Buffet deserves, he decides to buy Oprahs private beach house in Boyton Beach. (Nice place BTW) Ten million dollars lighter, but exceedingly happy with the fact that he can run naked from his back door into the water along his own beach, Merlin runs out at 10pm. Straight into a mob of people standing on his property trying to get a look at Oprah. Rattled by this fact, you contact your attorney who tells you that due to the current state of fighting about public access to the beach, its a grey area and you have to deal with the constant mob of book lovers. (Apparently Oprah actually loves misinformation conspriarcies and released her old address the day after she moved and an old picture of her in front of the house)

I honestly do not think it is fair to the owners. Its an issue of privacy and safety. That simple.

And another little food for thought, what would the status of a man made beach with the intercoastal? Its a public waterway...but the fact is that beach wouldnt have been there without the owner installing it. (Some of the larger lots bordering inlets have had these installed as well as Mangrove areas so that they have a natural swimming area .)

[molecularfire]

I don't know much about the laws concerning ownership of beach front property but IMO a person should have the right to determine what happens to the land that he/she owns. I like the idea of a high tide mark as a general rule of thumb and IMO cities and states shouldn't sell land past the high tide mark. That said, if a state doesn't think that people should be able to restrict access to beach property then they shouldn't put that land up for sale. IMO, look at where the property line ends and that's where they lose the power to determine what people do on that land. As for building routes through public land... if it isn't your land then unless you have a specific deal with the city or state to build there you never had a right to build that route therefore have no right to restrict people from using it. If you own the land, then you should be able to restrict who goes through it.

[Merlin]

Here is another story from this week's Economist that is very similiar to this topic.

Should paddlers be allowed to float through private land?

AS THE co-owner of one of Colorado's largest dude ranches, Brad Roberts is annoyed. “Trespassers” regularly float down the Taylor river, which runs through a mile of his property, disturbing his fishermen and scaring the fish. On other parts of the river, his guests like to go rafting themselves. But earlier this month the trespassers, otherwise known as river-rafters, struck two fishermen in the water. A personal-injury lawsuit could be brewing. “I'm going to stop them,” says Mr Roberts, “because I have no other choice.”

The paddlers tell a different story. “They felt the fishermen made no attempt to move and in fact lunged at our boat,” says Matt Brown of Scenic River Tours, the rafting company (who did not witness the incident himself). The sheriff is investigating. The rafters say they also contend with signs, threats and boulders put across the river. These improve the habitat for trout, but not for paddlers.


Whatever the rights and wrongs on the Taylor, plainly little love is lost between some rafters and landowners in the state. The issue is property. Virtually all Colorado's “floatable” rivers run through a patchwork of government and private land. In most other states, rafters are allowed the run of the rivers. But Colorado law is unclear. Landowners plainly own the banks and bed of the river, but rights to the water are fiercely disputed.

In 1979 the Colorado state Supreme Court found that the public “has no right to the use of waters overlying private lands for recreational purposes without the consent of the owner” and convicted three rafters of criminal trespass on private land. But in 1983 the attorney-general, citing a 1977 action by the legislature, stated in a non-binding opinion that floating on rivers through private property while staying off the banks or beds “does not constitute trespass within the provisions of the criminal code”.

To muddy the waters further, all this leaves open the question of civil (as opposed to criminal) trespass. Can rafters be pursued for civil damages when they cross the property line? On the Lake Fork of the Gunnison river, not far from the Taylor drama, one rafting company was hit with a civil trespass suit in 2001, but went out of business before the courts could resolve it. (A fence now runs across the water on the Lake Fork.) And what about all the times that rafters get stuck on the rocks? Mr Roberts grumbles that his crew had to rescue a raft of trespassers only last week.

The issue bubbles up all over Colorado. On the Arkansas river, America's most popular rafting spot with more than 200,000 paddlers each year, landowners are “becoming more protective or assertive about their property rights”, says Greg Felt of ArkAnglers, a fly-fishing outfit. He attributes the tensions to the rising number of float-fishers on the river; some landowners, fishermen themselves, may be keen to protect their fish stocks.

Both sides raise points about liability. From the rafters' perspective, stringing fences or other obstacles across the river could cause injury. Landowners worry about what happens if a rafter (who has probably signed liability waivers with the rafting company) gets hurt on their property. Lawmakers, the courts, or the people (with a ballot initiative) need to resolve this water fight—perhaps when they get back from their summer on the rivers.

[InfiniteNothing]

Seems like everything would be solved if state quit selling land (or promptly revoke all land) that is for public use.