On certification to the Superior Court, Appellate Division, whose opinion is Reported at 370 N.J. Super. 171 (2004).
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
This case raises a question about the right of the public to use a 480-foot wide stretch of upland sand beach in Lower Township, Cape May County, owned and operated as a private club by Atlantis Beach Club, Inc.
Atlantis holds title to beach property that is located in the Diamond Beach neighborhood, a residential area of approximately three blocks by nine blocks. The area contains the only beach in Lower Township facing the Atlantic Ocean. The Atlantis property extends to the mean high water line from a bulkhead running north/south along the western boundary of the property. The distance from the bulkhead to the mean high water line is about 342 feet. Persons using the beach for recreational purposes cross over the bulkhead by walking on a boardwalk pathway that traverses the dunes and curves southward to the beach. The pathway was approved by the New Jersey Department of Environmental Protection (DEP) in a 1986 permit issued pursuant to the Coastal Area Facility Review Act (CAFRA). The dry sand beach area lies beyond the dunes and extends to the mean high water line.
La Vida del Mar Condominiums (La Vida) is a four-story, twenty-four-unit building which stands immediately to the west of the bulkhead along the western boundary of the Atlantis property. Other residential complexes sit to the south and west of La Vida. Seapointe Village is located to the north of La Vida and includes a six-story hotel and more than five hundred residential units. Seapointe occupies the beach property to the north of the Atlantis beach. As a condition of its CAFRA permit, issued to Seapointe when the development was constructed, the Seapointe beach was open to the public. Seapointe sells daily, weekly, and seasonal beach passes at rates approved by the DEP. Public access through Seapointe's beach along the water's edge is free-of-charge. The United States Coast Guard owns the property to the south of the Atlantis beach. That property is closed to the public from April 1 through August 15.
Until 1996, the beach on the Atlantis property was open to the public free-of-charge. Access was required by the La Vida CAFRA permit issue when La Vida was constructed. In the summer of 1996, Atlantis established a private beach club which then began to limit public access to its beach by charging substantial fees. In June 2002, Tony Labrosciano was issued a summons for trespassing when he attempted to leave the wet sand area and walk across the Atlantis beach property to his home.
In July 2002, Atlantis filed an Order to Show Cause and Verified Complaint seeking an injunction to restrain Labrosciano and others from accessing the Atlantis property and a judicial declaration that Atlantis is not required to provide the public with access to or use of any portion of its property or the adjacent ocean. The Raleigh Avenue Beach Association, which consists of residents of the Diamond Beach neighborhood, filed a complaint against Atlantis, the State of New Jersey and others. The Association claimed that Atlantis was in violation of the public trust doctrine. The Association sought free public access through the Atlantis property to the beach and access to a sufficient amount of dry sand above the mean high water line to permit the public to enjoy the beach and beach-related activities. The Association's action was subsequently consolidated with the Atlantis action.
In September 2003, the trial court held that the public was entitled to a right of horizontal access to the ocean by means of a three-foot-wide strip of dry sand and to limited vertical access to the ocean by way of the path from the bulkhead through the dunes on the property. The court stated that the public trust doctrine did not apply to permit the DEP to regulate the use of the beach area. Atlantis was prohibited from charging a fee or otherwise restricting the right of the public to horizontal or vertical ocean access.
The State and the Association appealed. The Appellate Division held that Atlantis could not limit vertical or horizontal public access to its dry sand beach area nor interfere with the public's right to free use of the dry sand for intermittent recreational purposes. Atlantis could charge a fee to members of the public who used its beach for an extended period of time. The opinion also held that Atlantis is required to provide customary lifeguard services for the public. The appellate panel remanded to the DEP the issue of the appropriate fee to be charged for beach use. On remand, Atlantis submitted an application and the DEP issued an interim beach badge schedule setting fees at $3 per day, $15 per week, $40 per month, and $55 per season.
This Court granted Atlantis' petition for certification.
HELD: On application of the factors in Matthews v. Bay Head Improvement Ass'n to the circumstances of this case, the Atlantis upland sands must be available for use by the general public under the public trust doctrine; the broad scope of the DEP's authority includes jurisdiction to review fees proposed by Atlantis for use of its beach; the decision of the Appellate Division is affirmed.
1. The law we are asked to interpret in this case -- the public trust doctrine -- derives from the English common law principle that all of the land covered by tidal waters belongs to the sovereign held in trust for the people to use. In 1984, in Matthews, this Court clearly articulated the concept already implicit in our case law, that reasonable access to the sea is integral to the public trust doctrine. That leaves the question raised in this case: whether use of the dry sand ancillary to use of the ocean for recreation purposes is also implicit in the rights that belong to the public under the doctrine. Matthews states unequivocally that a bather's right in the upland sands is not limited to passage and that reasonable enjoyment of the foreshore and the sea cannot be realized unless some enjoyment of the dry sand area is also allowed. It follows, then, that use of the dry sand has long been a correlate to use of the ocean and is a component part of the rights associated with the public trust doctrine. (pp. 17-20)
2. Matthews established the framework for application of the public trust doctrine to privately-owned upland sand beaches. The Matthews approach begins with the general principle that public use of the upland sands is subject to an accommodation of the interests of the owner, and proceeds by setting forth four criteria for a case-by-case consideration in respect of the appropriate level of accommodations: a) location of the dry sand area in relation to the foreshore, b) extent and availability of publicly-owned upland sand area, c) nature and extent of the public demand, and d) usage of the upland sand land by the owner. (pp. 22)
3. We turn now to an application of the Matthew factors to the circumstances of this case in order to determine what privately-owned upland sand area will be available and required to satisfy the public's rights under the public trust doctrine. Based on the circumstances in this case and on application of the Matthews factors, we hold that the Atlantis upland sands must be available for use by the general public under the public trust doctrine. In so holding we highlight the longstanding public access to and use of the beach, the La Vida CAFRA permit condition, the documented public demand, the lack of publicly-owned beaches in Lower Township, and the type of use by the current owner as a business enterprise. (pp. 23-30)
4. CAFRA regulates activities in the coastal zone by requiring developers/property owners to obtain a permit from the DEP before undertaking the construction, relocation, or enlargement of any building or structure and all site preparation therefore, the grading, excavation or filling on beaches or dunes, including residential development, commercial development, industrial development, and public development. We agree with the Appellate Division that the boardwalk pathway over the dunes to the Atlantis beach qualifies as a development, thereby triggering the DEP's CAFRA jurisdiction over related use of the beach and ocean. We find jurisdiction also in the DEP's general power to promote the health, safety, and welfare of the public. We hold that the broad scope of the DEP's authority includes jurisdiction to review fees proposed by Atlantis for use of its beach. (pp. 31-32)
For the reasons expressed in this opinion, the decision of the Appellate Division is AFFIRMED.
JUSTICE WALLACE, dissenting, in which JUSTICE RIVERA-SOTO joins, would reverse and reinstate the judgment of the trial court but would expand horizontal access to a ten-foot-wide strip above the high water mark.
JUSTICES LONG, LaVECCHIA, ZAZZALI, and ALBIN join in CHIEF JUSTICE PORITZ's opinion. JUSTICE WALLACE filed a separate dissenting opinion in which JUSTICE RIVERA-SOTO joins.
The opinion of the court was delivered by: Chief Justice Poritz
This case raises a question about the right of the public to use a 480-foot wide stretch of upland sand beach in Lower Township, Cape May County, owned by respondent Atlantis Beach Club, Inc., and operated as a private club. We hold today that, in the circumstances presented here, and on application of the factors set forth in Matthews v. Bay Head Improvement Ass'n, 95 N.J. 306, 326, cert. denied sub nom. Bay Head Improvement Ass'n v. Matthews, 469 U.S. 821, 105 S.Ct. 93, 83 L.Ed. 2d 39 (1984), the public trust doctrine requires the Atlantis property to be open to the general public at a reasonable fee for services provided by the owner and approved by the Department of Environmental Protection.
Atlantis Beach Club, Inc. (Atlantis or Beach Club) is the successor in title to a Riparian Grant, dated January 17, 1907, from the State of New Jersey to the Cape May Real Estate Company. The grant encompassed a large area not relevant to this litigation except for certain submerged land that, in 1907, was located within the bed of Turtle Gut Inlet, a body of water that connected to the Atlantic Ocean. Today, the land is described on the Lower Township Municipal Tax Map as Block 730.02, Lot 1.02. No longer submerged, the lot extends to the mean high water line from a bulkhead running north/south along the western boundary of the property. That western boundary lies to the east of an unpaved section of Raleigh Avenue (which runs east/west), whereas the mean high water line serves as the boundary for Lot 1.03, which is entirely submerged beneath the ocean at high tide; Lot 1.02, however, consists of dry sand beach and protected dunes. The distance from the bulkhead (the western boundary of Lot 1.02) to the mean high water line is about 342 feet. Persons using the beach for recreational purposes cross over the bulkhead by walking on a boardwalk pathway that traverses the dunes and curves southward to the beach. The dry sand beach area lies beyond the dunes and extends to the mean high water line.
A pathway runs east/west along the unpaved section of Raleigh Avenue to the approximate midpoint of the bulkhead and then, as described, across the bulkhead and through the dunes. The pathway was approved by the New Jersey Department of Environmental Protection (DEP or Department) in a 1986 permit issued pursuant to the Coastal Area Facility Review Act (CAFRA), N.J.S.A. 13:19-1 to -21. The CAFRA permit related to the construction of the La Vida del Mar Condominiums (La Vida), a four-story, twenty-four-unit condominium structure along Raleigh Avenue, and required as a condition of condominium construction public access "down the center of Raleigh Avenue, . . . and [by means of] a timber walkway over the bulkhead to the beach." The permit also required Department-approved signs marking public access to be "conspicuously located at the end of [the] Raleigh Avenue pavement" and maintained by the condominium homeowners' association for the life of the condominium project.*fn1
As noted, the La Vida building stands immediately to the west of the bulkhead along the western boundary of the Atlantis property. Another four-story multiple unit condominium complex called the La Quinta del Mar sits to the south of La Vida and the path that runs from the end of the pavement on Raleigh Avenue and over the bulkhead. To the west of La Quinta del Mar are the Villa House and La Quinta Towers, both of which contain residential units. Seapointe Village (Seapointe) is located to the north of La Vida and consists of several structures, including a six-story, one-hundred-room hotel, and more than five hundred residential units. Seapointe occupies 63.4 acres, including the beach property to the north of the Atlantis beach.
When the Seapointe property was developed, the DEP, as a condition of its 1987 CAFRA permit, required the beach in front of Seapointe to be open to the public. Under the terms of the permit, Seapointe is allowed to sell daily, weekly, and seasonal beach passes at rates approved by the DEP, although residents can access the area beyond the mean high water line free-of-charge. Public access through Seapointe's beach along the water's edge is also free-of-charge, and beach usage fees, regulations, and operations are subject to continued periodic review and approval by the DEP. Seapointe provides lifeguards on its beach, as well as public restrooms, outdoor showers, and parking facilities. In August 2002 when this litigation began, the rates for use of the Seapointe beach were, per person, $2.50 a day, $10 a week, and $40 a season; however, Seapointe had submitted an application for a fee increase that was pending at that time.
The United States Coast Guard owns the property to the south of the Atlantis beach. That property is closed to the public from April 1 through August 15 to protect the piping plover, an endangered species, during breeding season. Although the Coast Guard beach is unavailable for most of the summer season, the property is open to the public the rest of the year.
Atlantis is located in the Diamond Beach neighborhood, a residential area of approximately three blocks by nine blocks that contains the only beach in Lower Township facing the Atlantic Ocean. In addition to the beach access point on the Atlantis property at the end of Raleigh Avenue, there are two other access points in Diamond Beach north of Atlantis: one at the eastern end of Dune Drive and the other at the eastern end of Memphis Avenue. Access is blocked by condominium buildings located at the terminus of the other streets in the area. According to certifications filed by residents of La Quinta Towers in support of plaintiff Raleigh Avenue Beach Association (Association), the closest free entry to the beach is Dune Drive, a nine-block walk from Raleigh Avenue and a distance of approximately one-half mile. The beach access problem in Lower Township is further compounded by the limited number of parking spaces available in the Diamond Beach neighborhood.
Until 1996, the beach on the Atlantis property was open to the public free-of-charge. In the summer of 1996, however, Atlantis established a private beach club known at the time as Club Atlantis Enterprises. The club limited public access to its beach by charging a fee of $300 for six seasonal beach tags.
As of July 2003, a sign posted on the gate*fn2 at the entrance to the Atlantis beach read: "FREE PUBLIC ACCESS ENDS HERE/MEMBERSHIP AVAILABLE AT GATE." Atlantis's 2003 Rules and Regulations, also posted, provided the following warning:
ANYONE ATTEMPTING TO USE, ENTER UPON OR CROSS OVER CLUB PROPERTY FOR ANY REASON WITHOUT CLUB PERMISSION OR WHO IS NOT IN POSSESSION OF A VALID TAG AND AUTHORIZED TO USE SUCH TAG WILL BE SUBJECT TO PROSECUTION, CIVIL AND OR CRIMINAL[,] TO THE FULLEST EXTENT PERMITTED BY LAW[,] INCLUDING ALL COSTS AND LEGAL FEES INCURRED BY THE CLUB.
Prior to the commencement of this litigation, the membership fee for new members and members who had joined the beach club in 2002 was set at $700 for the 2003 summer season. Members were entitled to eight beach tags per household.*fn3
Atlantis also sold "Access Easements" at $10,000 each, paid in cash.*fn4 Easement holders were required to pay an annual membership fee determined by dividing the actual costs associated with operating the beach club by the total number of members (both easement holders and yearly members) to arrive at the holder's proportionate share. According to a March 14, 2003 letter to members, the payment of membership fees or the purchase of an easement entitled them "to use and enjoy the [club] facilities," which included uniformed private security personnel on club ...