New Jersey Beach Access

• Coastal Area Facility Review Act (N.J.S.A. 13:19-1)
• Public Access to the Waterfront Rule (N.J.A.C. 7:7E-8.11)
• Waterfront Development Law (N.J.S.A. 12:5-3)
• Wetlands Act (N.J.S.A. 13:9A)
• Riparian Lands Statutes, Tidelands Act (N.J.S.A. 12:3)

• Raleigh Avenue Beach Association v. Atlantis Beach Club, Inc., et al. (A-40-04) (2005). This case is discussed below.
• Matthews v. Bay Head Improvement Association, 95 N.J. 306 (1984)
• Van Ness v. Borough of Deal, 78 N.J. 174 (1978)
• Borough of Neptune City v.Borough of Avon-by-the-Sea, 61 N.J. 296 (1972)

• In Point Beach, an attempt by two property owners to wrestle a patch of beach away from public control was stymied by an appeals court decision. John Jay Boylan and Belle Boylan Constantin attempted to sue the borough government for control of the beach next to their Maryland Avenue Beach home based on language in a 1921 deed that created their lot and about 60 others. The Appellate Division in Trenton upheld a lower court decision that allowed the borough government to keep its beach. Using property maps, the court ruled that the Boylans and their neighbors had a hard property line that did not change with the ebb and flow of the tides, and it was never the intent of the subdivider to hand over the property rights to a loosely defined beach. "This is the one area (of shore) that the residents of Point Pleasant Beach own," said Kevin Starkey, the attorney representing the borough. "The court's ruling affirms all the residents own that beach, not just one or two. I think it's very important decision because it upholds that the beach does indeed belong to them." Most of the shoreline in Point Beach is privately owned.
• The New Jersey Supreme Court is considering an issue raised by a one-time Long Branch boardwalk merchant who asserted he, and not the public, owned the portion of the beach behind his property created in a 1999 government beach nourishment project. This case, and a related Florida case heard the same day by the U.S. Supreme Court, could say something important — and definitive — about who owns the land created during publicly funded beach replenishment projects. In the Long Branch case, more than $31 million was spent by the federal government, with help from the state and city, which greatly expanded the amount of beach behind the property owned by Jui Yung Liu and his wife, Elizabeth. The Lius unsuccessfully tried to assert that their property should include an additional 93,393 square feet of upland beach, created as a result of the Army Corps of Engineers project. The Lius were challenging the $900,000 the city paid when in 2001 it condemned the boardwalk property to make way for redevelopment. Liu died in 2002, but the case progressed on behalf of the family with lawyer Peter H. Wegener taking it to Superior Court in 2006, where after a 12-week trial before Judge Robert O'Hagan, the Lius were awarded $1.45 million for the original property only. Wegener appealed in October 2008, with the decision of the Appellate Division of Superior Court going in the city's favor. The Lius would not be paid for the extra beach. "We can perceive no policy justification which would permit defendants to reap such a private monetary benefit from those public efforts," the appeals court found. It was then that Wegener, with City Attorney Paul V. Fernicola as his adversary, took the case to the state Supreme Court, which seems poised to decide who owns the land created by governmental-sponsored beach replenishment projects.

"DEP's enforcement action against Ocean Beach & Bay Club III highlights the public's right to enjoy New Jersey's beaches," said Commissioner Campbell. "DEP has initiated aggressive permitting and enforcement efforts to make private entities aware of their responsibility to provide New Jersey citizens full access to one of the state's most treasured resources, its beaches."

• In Long Branch, where a wealthy homeowner wants to close a public street (Adams Street) that provides beach access, in exchange for giving the town 10 parking spaces and a new, paved and lighted path to the beach nearby.
• At Takanassee Beach, where Takanassee Beach Club is a 5 acre parcel of land consisting of a beach, a lake, and three historic, U.S. Lifesaving Service buildings over 100 years old. It has been privately run for decades but it is slated for development contingent on a CAFRA (Coastal Area Facility Review) permit from the NJ DEP. Local residents, historians, environmentalists and elected officials want the permit denied so the property can be preserved and become a public beach park one day.

The National Ocean Economics Program (NOEP) provides a full range of the most current economic and socio-economic information available on changes and trends along the U.S. coast and in coastal waters. You can download data on jobs and GDP associated with specific types of coastal activities for each coastal state. You also can download data on commercial fishing and landings. The NOEP made public their fully updated Non-Market Valuation Web site in September 2008. The largest database in the world of studies documenting the environmental and recreational values of ocean resources, the Web site now includes 1) an updated methodologies section, 2) frequently asked questions, 3) examples of how Non-Market valuation influences public policy, and 4) an expanded table summarizing valuation estimates from across the United States. The National Ocean Economics Program has now released State of the U.S. Ocean and Coastal Economies - 2009, which presents time-series data compiled over the past 10 years that track economic activities, demographics, natural resource production, non-market values, and federal expenditures in the U.S. coastal zone on land and water. The report states that coastal states account for more than 80 percent of the U.S. economy. The NOEP Web site had this note in mid-2010: "The NOEP is now being hosted by the Monterey Institute of International Studies, with generous funding also provided by the University of Southern California Sea Grant Program. We are currently seeking additional funding to continue NOEP's mission beyond 2010, as well as expand it in new directions and integrate the NOEP with the Monterey Institute’s plans for a greater academic focus on International Marine Policy."

The Web site of Restore America's Estuaries has a report The Economic and Market Value of Coasts and Estuaries: What’s At Stake?. According to the report, U.S. coasts and estuaries that have been protected and managed in a sustainable way are worth billions. Beaches, coastal communities, ports, and fragile bays are economic engines that drive and support large sectors of the national economy. The report focuses on aspects of coasts and estuaries that are most dependent on ecologically healthy conditions. The authors also examined a growing body of research that reveals the economic consequences of environmental change in coastal and estuary ecosystems.

On a warm June day, two local women soak in the sun at what they consider to be their secret oasis, a small plot of beach near the border of Deal and Allenhurst. It is quiet and tucked away from the more popular beaches, which is exactly what draws Tracy Marone, 39, Long Branch, and Susan Sullivan, 44, of Asbury Park. The two said they are grateful to the private property owner - who they insist owns the shore in front of the beach house - for allowing them to use the spot and fear their secret place will be publicized. "We've been coming out here for years," Sullivan said. "It's great here."

But they do not have to thank the property owner. They are exercising their right to use a public resource. State Supreme Court decisions say the public is entitled to the beaches at the mean high water mark, which is the point where the wet sand meets the dry, as well as to some of the dry sand above the line. The problem comes in getting there, according to advocates for public beach access. Private development along the Shore - from beach clubs with lengthy waiting lists to houses and to condominium associations - creates a barrier to the sands held in the public trust.

From northern Monmouth County to the southern tip of Ocean County, obstacles abound:

• When parking hits capacity at the popular Sandy Hook National Recreation Area, beachgoers head south, looking for the next available patch of sand. What they find is a seawall with plenty of stairwells. Some are for the public, but many say: "No trespassing."
  
• With 15 beach clubs from Sea Bright to Long Branch, northern Monmouth County has more private beach clubs than any other area in the state. Most have lengthy waiting lists for membership. So unless you belong, access to the beach in front of them is blocked.
  
• In the Elberon section of Long Branch, the desires of private homeowners and beachgoers often collide. One homeowner was so upset by people parking on his property and littering that he installed a gate in front of a public-access path to a popular fishing spot.
  
• In Point Pleasant Beach, the state is near an agreement with three homeowners associations over beach-access issues that have lingered for years. The five-year agreement still may not please access advocates if they feel beach-badge fees are too high.
  
• Just last week, tempers flared over beach access in Long Beach Township. Some officials said the lack of access in the affluent Loveladies and North Beach sections hurt efforts to get federal funds for beach replenishment.

Signs there warn potential beachgoers not to trespass on private property. Unfortunately, the only way to get to the beach from Long Beach Boulevard - without traversing a long detour - is from such private property. While Mayor James J. Mancini promises that officials are working on two easements onto the beachfront in those sections - though he declined to say where - he emphasized that the township's 11 miles of beaches are accessible to the public in some form or another. "The township of Long Beach offers the greatest length of ocean beach, greatest number of free parking spaces within close proximity to the ocean and more than 150 public accesses to the public beach," Mancini said Friday.

But Beach Haven Mayor Deborah C. Whitcraft, whose borough has unfettered public access, contends that Long Beach Township's beach-access issues are responsible for a delay in the federal government's long-awaited beach-replenishment program on the island. Congress did not include a long-awaited beach-replenishment program for Long Beach Island in the fiscal 2004 budget, stalling the start of a 50-year plan aimed at stabilizing and building up its 18 miles of beach. However, about $100,000 was appropriated this year for 2004 to pay for design and other preliminary engineering work. "The federal government is not going to use public funds, to rebuild a public beach that is not accessible to the public," Whitcraft said. "It's a no-brainer. You provide the public access, you get the public funds."

Line in the Sand
The concept that the public has a right to access and use navigable waters is contained in the Public Trust Doctrine, which dates to English common law, said retired New Jersey Supreme Court Justice Stewart G. Pollock. He now works with Riker, Danzig, Scherer, Hyland & Perretti, a law firm with headquarters in Morristown. Common law is based on judicial decisions, as opposed to law passed by a legislative body, Pollock said. The Public Trust Doctrine - inherited by today's U.S. judicial system - has been used by New Jersey's Supreme Court to determine what rights the public has to the beach, he said.

In the 1984 unanimous ruling in Matthews vs. Bay Head Improvement Association, the court cited the doctrine when it determined that a private entity could not block public access to the beach it maintained in the Ocean County borough. The court ruled that the public also has rights to the dry sand above the mean high water mark, said Pollock, who sat on the court when the decision was made. Although that case is now almost two decades old, the full scope of the public's right to access the beach is still somewhat of a work in progress - determined on a case-by-case basis, Pollock said. "The right (of public beach access) is there, but the complete usage, if you will, remains somewhat undefined in terms of jurisprudence," Pollock said.

Pollock is aware of this point. He acted as the mediator in a dispute between the state, and Point Pleasant Beach borough officials and property owners over access issues about two years ago. As no state law dictates how much or where to place beach access, towns are left to define such terms independently.

Finding a Path
While the public's right to use the beaches exists, finding horizontal access across the sand to the water can be difficult, said William Rosenblatt, the Loch Arbour mayor and a local surfing advocate and beach watchdog. Rosenblatt is co-founder of the Jersey Shore Chapter of Surfrider Foundation. On a tour in June of the beaches from the village to Long Branch, Rosenblatt pointed out a number of obstacles that impede public access to the shore lines. One of the biggest barriers, he said, is private development. "As development just continues to encroach upon the Shore, it makes access for people more and more difficult," he said while driving along Ocean Avenue, past rows of expansive oceanfront houses.

In Deal, the public is welcome to use the municipal beach at Deal Casino for a daily fee, but membership in the club is limited to residents only. On the unguarded beaches, which are popular among local surfers, finding access points can be hit or miss. Some streets leading to the water provide beach access, while others do not, Rosenblatt pointed out on the tour. Those that provide entrances are not marked on Ocean Avenue. "If you were from North Jersey, you would be hard-pressed to find a way to get to the beach," he said.

On some of the streets that provide public access, including a popular surfing beach off of Darlington Avenue, street parking is limited to two hours, he said. However, Rosenblatt points out a distinction between access and usage. While access points should be maintained, it does not mean the municipality should maintain and guard every inch of the beach for swimming. But people should be able to walk on the sand, he said. "Access means you can get to the beach," he said. "Towns do not have to be involved in supervision and maintenance."

Hidden Access
Further down the road in Long Branch, public access points that were once difficult to find in the Elberon section are now clearly marked along Ocean Avenue. In one instance, a property owner gated a public access point to stop beachgoers from parking on his land, located directly north of the access point that is across from Park Avenue. The point is a popular fishing spot, officials have said. City officials forced the owner to take the gate down and erected a sign to mark the 10-foot-wide path as public access.

In another instance, a private property owner at the end of Adams Street landscaped the areas surrounding the access point, making the entrance appear as if it were private property, Rosenblatt said. The city also erected a sign at this location to ensure people knew they were welcome, said City Mayor Adam Schneider. "You can't obstruct a public access point," Schneider said.

Marking public access points in the city became a priority about a year ago after a meeting with a contingent of surfers, fishermen and other beach users, Schneider said. In the middle of June, officials erected 19 signs marking public access points along the city's five miles of oceanfront, said Kevin J. Hayes Sr., city director of building and development.

Public access points have actually increased by more than 50 percent since 1987, when there were only 12 entrances, Hayes said. He said there are another four public access entrances at the oceanfront county-owned Seven Presidents Park.

Public or Private
While erecting signs at public access points satisfies beachgoers, it creates some problems for private property owners in the city's Elberon section, Schneider said. "You've got spots (beach accesses) in town where you have a right-of-way that almost requires you to walk across someone's property," he said. "Regulating that is never going to be easy."

In the southern section of the city, property owners complain of noise at late hours and littering on their property. In one recent instance, a property owner - who Schneider would not identify - showed the mayor how beachgoers left behind the remains of bonfires and empty bottles and drew graffiti on the beaches. "He has no attitude that he owns it (the beach)," Schneider said. "People who use it have to be considerate to the private property owners, who have rights."

This clash of public and private interest is frequently played out on beaches south of Sandy Hook because of two factors, said Derickson W. Bennett, who is on staff at the American Littoral Society in Sandy Hook. The area, which is easily accessible to dense populations in the north, has experienced a great deal of growth and development along the shore lines, said Bennett, who was executive director of the nonprofit coastal conservation organization until April. "There are more people here who want to use the beach and more people who are moving into these towns," he said, explaining how the two factors inevitably lead to conflict.

Climbing the Wall
In Sea Bright, a stretch of unguarded beach in the northern part of the borough - directly south of Sandy Hook - is one of the first beaches visitors hit when turned away from the popular national park, but it is the least likely to be used. It is hard to tell where visitors can access the expanse of beach beyond the seawall, because many of the stairs over the wall are privately owned, Bennett said. Some of the stairs are marked as public access points, but limited parking in that region makes it almost impossible to use, Bennett said. The borough provides free municipal parking, but it is a significant distance from the northern beaches and would require walking through the private beach clubs, he added. But it is not possible to fit parking on the narrow strip of land in the northern part of the borough, which is situated between the Atlantic Ocean and the Shrewsbury River, said Bill Mack, the borough's chief of beach operations. "You can't put land where there isn't any," Mack said. He said the borough works hard to provide public access, including free parking and marking all access points over the wall. He says there are about six public access points in the borough.

The state Department of Transportation stepped in when the borough announced plans to trade a piece of property with a private beach club owner for another piece of property next to borough hall. The state claimed that the property the borough wants to trade was initially purchased for parking to provide public beach access when the borough used federal dollars for beach replenishment. The borough provided plans showing it would gain parking spots with the addition of new land and reconfigurations of existing lots. The land swap has not yet gone through.

Raising Awareness
The Littoral Society is working with the state and other organizations to identify public access points and places where access was promised but not provided, Bennett said. "We aren't going to stop looking," he said. He said it is important for people to be aware of their rights under the Public Trust Doctrine.

Rosenblatt said he would like to see access more clearly marked with reasonable parking provided. His organization has also worked with towns to improve conditions, he said. "I am not concerned that people should have access everywhere," he said. "I think it is reasonable to have marked and identified access areas and reasonable parking."

Meanwhile, sunseekers Tracy Marone and Susan Sullivan are not concerned about parking, access or the steep, rocky climb they made to get to their secret patch of beach at the end of Neptune Avenue. The irony is that they are like many of the property owners along the ocean. They seek solitude, too. "We love it here," Sullivan said.