State of the Beach/State Reports/NJ/Beach Access
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According to New Jersey's 2001 Assessment, the public trust doctrine, which was enunciated by the New Jersey Supreme Court in several decisions, requires that tidal water bodies be accessible to the general public for navigation, fishing, and recreation. The Court also recognized the "increasing demand for our State's beach and the dynamic nature of the public trust doctrine" and found that the public must be given both access to and use of privately owned dry sand areas as is reasonably necessary to use the tidal water bodies. In order to facilitate and enhance public access to the Public Trust lands, the New Jersey Department of Environmental Protection (DEP) is considering the development of written guidelines and/or agreements with local municipalities to describe the limits of accessible tidal areas consistent with New Jersey case law.
In general, the public/private property line at the beach is the mean high water line.
The following laws or regulations guide coastal access policies in New Jersey:
- Coastal Area Facility Review Act (N.J.S.A. 13:19-1)
- Amended Public Access Rules (Adopted amendments: N.J.A.C. 7:7-1.3, 7.5 through 7.14, 7.17, 7.18, 7.24, 7.26 and 7.29; and 7E-1.8, 3.22, 3.23, 3.43, 3.48, 3.50, 7.2 through 7.4, 7.7, 7.11, 8.11 and 8.12; Adopted repeals: N.J.A.C. 7:7E-8A and 7:7E Appendix 6)
- 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)
In the wake of Superstorm Sandy (October 2012), State Senator Michael J. Doherty and Senate President Stephen M. Sweeney introduced legislation that would require municipalities that accept state or federal aid to rebuild storm-damaged beaches to provide beach access and beach restroom facilities to the public free of charge. The proposal didn’t sit well with Senators representing coastal areas like Joe Rullo from hard-hit Ocean County. Rullo said the state senators have no legal right to propose such legislation.
In August 2010 the Department of Environmental Protection unveiled draft proposed rules for "enhanced public access" to the state's coastal and other tidal waters. These rules would give beach towns more flexibility in complying with state beach access requirements (less prescriptive requirements on parking, number of bathrooms, beach hours), but there is concern that the "flexibility" and reliance on voluntary compliance may lead to reduced public access at some locations.
On December 28, 2010 the results of a Rutgers-Eagleton Center for Public Interest poll concerning beach access were announced. More than eight out of ten New Jerseyans agree that when the government funds beach replenishment in shore towns that have limited beach access, they should be required to improve visitor access. In all, 82.1 percent of adults support an improved access requirement, 10.6 percent oppose it, and 7.3 percent are unsure. The poll was conducted earlier in December on behalf of the Jersey Shore Chapter of the Surfrider Foundation.
This issue received further press in March 2011 (see Advocates Worry State Will Limit Public Beach Access). The proposed rules were published on April 4, 2011.
A good article War at the Jersey shore over who rules the beaches regarding the beach access rules dispute in New Jersey appeared in Bloomberg Businessweek on June 27, 2011.
The revised beach access rules (Public Access Rule) were approved on October 3, 2012 and will go into effect on November 5, 2012. Department of Environmental Protection Commissioner Bob Martin says the new rules maintain existing public access, while granting more power to local communities to write their own access plans, subject to state approval. Environmental groups and beach access advocates continue to be concerned that the leeway given to local communities will result in restrictions to public access and a shortage of amenities such as restrooms and parking areas. The rules apply to 231 municipalities in Monmouth, Ocean, Atlantic, and Cape May counties. They can be viewed at the "Amended Public Access Rules" link above.
There have have been several important court rulings regarding coastal access:
- 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)
Two additional New Jersey beach access cases went before courts in December 2009:
- 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 considered 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, represented important — and definitive — rulings regarding 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. In September 2010 the New Jersey Supreme Court ruled that dry beach produced by a government-funded beach replenishment program is not the property of the upland owners (City of Long Branch v. Jui Yung Liu, 2010 N.J. LEXIS 910 (N.J. Sept. 21, 2010)). The court ruled that the expanded dry beach fell within the public trust doctrine and, therefore, the owners were not entitled to compensation for that land in eminent domain proceedings.
In January 2010 a legal dispute between several Sea Bright private beach clubs and the state was settled with an agreement which “significantly expands the amount of beach open to the general public." The settlement obliged five of the businesses — Chapel Beach Club, Surfrider Beach Club, Sands Beach Club, Water’s Edge Beach Club and Ship Ahoy Beach Club — to contribute $30,000 each to fund public-access improvements, while the Driftwood Beach Club was to contribute $20,000 and give the state a tract of oceanfront property in nearby Monmouth Beach. Additionally, Sea Bright will spend $556,000 to provide public-access amenities within the borough that are related to providing public access to the beach. The new agreement expands one signed in 1993 that established a 15-foot “limited-use public corridor” in front of the clubs’ beaches. Instead, a “full public use” area encompassing at least 50 percent of the beach, up to a maximum of 150 feet, will be established. In September 2012, a state appellate panel ruled that Sea Bright Beach Club had benefited from a beach replenishment project paid for with millions in taxpayer money and so should not restrict its beach from non-members. Sea Bright Beach Club was one of nine private clubs in the borough part of a long-standing lawsuit that the state filed in 2006. It was the only club that had not settled or dismissed its case with the state over the years.
On November 6, 2006, the DEP published in the New Jersey Register a proposal that would repeal the existing Public access to the waterfront rule and replace it with a new Public trust rights rule. The proposed new rule strengthens the Department's existing public access requirements and sets forth specific requirements for Shore Protection Program and Green Acres funding. In addition, a new special area rule, Lands and waters subject to public trust rights, is proposed to protect tidal waterways and their shores and ensure public access to these lands is provided. Various coordinating amendments to the coastal permitting requirements of the Coastal Permit Program rules are also proposed. The comment period on this proposal ended January 5, 2007.
The Department has also posted a new Public Access Web page. This Web page contains a map of public access points along the Atlantic Ocean from Monmouth County to Cape May County along with information on beach facilities; a handbook to the Public Trust Doctrine; and highlights of the proposed new rule.
The New Jersey Supreme Court heard arguments in January 2005 in a beach access case pitting the Atlantis Beach Club in Lower Township, Cape May County against the state of New Jersey, the American Littoral Society, and others. The decision was anticipated to determine whether members of the public have a right to access the beach in front of someone else's privately owned Shore house. The court left that question unanswered in 1984 when it ordered Bay Head Improvement Association, a quasi-public entity that acted like a municipality by hiring 40 lifeguards and other employees, to open 1-1/4 miles of beach to nonresidents. On July 26, 2005, the New Jersey Supreme Court reached a decision in the Atlantis Beach Club case by affirming an Appeals Court ruling requiring private beach owners to allow reasonably priced public 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," said Assembly Deputy Majority Leader Neil M. Cohen, D-Union. The Atlantis decision is the first New Jersey case upholding public access and use of a privately-owned beach under the Public Trust Doctrine. This is a big victory for the beach-going public.
In August 2005 the Department of Environmental Protection fined Ocean Beach & Bay Club III of Dover Township $12,500 for refusing public access to the beach area adjacent to its property. The club is required, under its state permit, to allow members of the public access to the beach after charging a reasonable fee for services provided such as trash removal, lifeguard services and bathroom facilities.
"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."
An article "N.J. Fights to Open Up the Beaches" by Jacqueline Urgo summarizing current beach access issues in New Jersey appeared in the Philadelphia Inquirer on October 3, 2006. The article says that New Jersey's attorney general filed a lawsuit on September 22, 2006 that seeks to reform 1993 agreements between the state and Sea Bright's beach clubs to reflect current law. The state seeks to force the borough to honor commitments to operate properties as public beaches.
The state takes steps to minimize the environmental impacts of coastal access by prohibiting access across dunes, restricting beach driving and ORV use, protecting nesting areas, providing designated accessways, and by educational signage.
The Green Acres Program (includes Blue Acres) is described at http://www.state.nj.us/dep/greenacres/
This program serves as the real estate agent for the DEP, acquiring land - much of which has been offered for sale by property owners - that becomes part of the system of state parks, forests, natural areas, and wildlife management areas. Green Acres works with the DEP's divisions of Parks and Forestry, Fish and Wildlife and the New Jersey Natural Lands Trust to determine which lands should be preserved. Green Acres does not own the land it acquires; instead land is assigned to the divisions for management.
State Acquisition Project Areas are listed and described at: http://www.state.nj.us/dep/greenacres/currentstate.html
In September 2005 it was announced that the DEP Green Acres Program and Ocean Township had jointly purchased 89 acres in Waretown for $2.25 million, preserving over 1,000 feet of waterfront area, providing additional protection for the Barnegat Bay watershed, and increasing public access along New Jersey's coast.
Additional information on access policies and acquisition programs is given in New Jersey's 2001 Assessment.
According to Pogue P. and Lee V., 1999, "Providing Public Access to the Shore: The Role of Coastal Zone Management Programs," Coastal Management 27:219-237, the amount of publicly owned shoreline in New Jersey is unknown, so is the number of public access sites, and correspondingly the number of public access sites per mile of shoreline. The majority of dry sand beach areas are municipally managed and available to the public for a fee.
An article in the Asbury Park Press on July 27, 2005 quoted Assembly Deputy Majority Leader Neil M. Cohen as saying that 26 percent of New Jersey's 127-mile coastline is privately owned.
The Department of Environmental Protection, through its coastal permitting and beach fill programs, requires accessways every quarter mile as a condition of project approval. Many coastal access points are found at street ends which are typically less than or equal to 1/4 mile apart.
As mentioned above, the Department has posted a new Public Access Web page. This Web page contains a clickable map of public access points along the Atlantic Ocean from Monmouth County to Cape May County along with information on beach facilities and highlights of the proposed new rule.
Beach access points are also now available via the http://www.njbeaches.org Website, which links back to this site (keep clicking on the map to zoom in).
In May 2009 New Jersey Public Advocate Ronald K. Chen released the 4th annual New Jersey Beach Guide. The guide included information about daily, weekly and seasonal fees, accessibility for individuals with disabilities, parking, rest rooms, lifeguard coverage and beach locations. Also included were "New Jersey Beaches at a Glance" and "New Jersey's Least and Most Expensive Beaches." Unfortunately, the Beach Guide no longer seems to be available online. Some of the information formerly available in the New Jersey Beach Guide can now be found on an alphabetical beach-by-beach basis for 64 beaches at visitnj.com's All Beaches Web page.
Many New Jersey towns require the public to purchase "beach tags" or "beach badges" in order to access their beaches. In May 2011 an article at nj.com stated that more than one third of N.J. beach towns that require beach badges were increasing their summer rates. Sea Isle City has a unique practice of suspending beach fees on Wednesdays. One of the few towns that does not charge for beach badges is Wildwood, but they are considering ending that practice. Wildwood is considering a referendum in which voters would be asked whether the city should start charging for beach badges. Oh, and if you go to Margate, don't even think about not purchasing a beach badge.
There is also some beach-by-beach access and cost information for 46 beaches in the Jersey Shore Beach Guide published at NJ.com.
The Virtual New Jersey Shore Jersey Shore Beachguide is also a source of information on communities with beach access. Surfing is included in its list of activities.
There is now an official New Jersey State Parks and Forest Guide app.
The quantity and quality of access is tracked every five years as part of the Section 309 Assessment and Strategy. According to the 2001 Assessment, the DEP recognized the need to develop and maintain information regarding the location, number, type, and extent of existing public access areas along the coast. The importance of this issue was reflected in its ranking as a high priority.
A survey of access sites was conducted by the American Littoral Society (ALS) as a product of a 1998 Local Coastal Grant. The ALS concluded the study and submitted the final product in a spreadsheet format - they did not submit the digital data, and therefore it was not in a form that could be "easily and efficiently" converted into a GIS format, or replicated as a document or brochure. DEP also has some older products, such as a list of handicapped accessible sites (1995), and various other documents produced in conjunction with their Estuary Programs (Barnegat Bay and Delaware Bay), Fish and Wildlife and Parks and Forestry Programs. The NJ Marine Science Consortium also recently released a Guide to Eco-Tourism for Central NJ. Some of the coastal counties also have access guides - Monmouth County Planning Board produced a "public access guide" (1995) as well as characterizations of various segments of the county. Cape May County has a Cape May County Beach Accessibility Guide which was updated in 2012.
Coastal access data is stored by several agencies. Fish & Wildlife has data on boat ramps, fishing and wildlife viewing areas; Parks & Forestry has data on parks, trails and boat ramps; the Coastal Management Office has information on accessways for bathing beaches; and Green Acres has an open space inventory. Fish & Wildlife's viewing guide is online at: http://www.state.nj.us/dep/fgw/watchabl.htm
According to the 2001 Assessment, there are 99,861 acres of parkland in Atlantic, Cape May, Monmouth, and Ocean counties.
The New Jersey Division of Parks and Forestry has a Parks and Forests Index. Here you can search by park name, region (via a map), or activity (although surfing is not listed) and get a nice summary of park information including directions.
In April 2012 a beach path in the Loveladies section of Long Beach township opened, highlighting the newest public accessway in a two-mile-long section of exclusive beach homes. The 6-foot-wide, 600-foot-long walking path is located along the unpaved Station Avenue, a dead-end street. The path is the fifth public accessway in Loveladies,
An interesting beach access issue has arisen on Long Beach Island. A $71 million sand replenishment project is planned along the 17-mile island. The state Department of Environmental Protection has insisted that beach access points be provided every quarter mile along the beach as a condition of granting approval for the project. This is to ensure that the public can enjoy the widened beaches that their tax dollars helped pay for. However, many property owners are balking at granting easements for beach access, which is stalling the project.
Citizens Right to Access Beaches (C.R.A.B.) was formed in August of 1996. They are dedicated to educating the public on its rights to use and enjoy the beaches for a variety of recreational pursuits. Originally CRAB's focus was on the problems encountered when the town of Point Pleasant Beach rezoned the beachfront at the southern end of town allowing for residential development in an area that for many years was used as a public beach. Developers quickly sub-divided the area and declared the beachfront private ... for the exclusive use of the future homeowners. Beacon Beach, a beloved family beach enjoyed by thousands of beachgoers, was one of the beaches lost to the public as a result of the rezoning. Concerned about future loss of public beach access, CRAB has turned its efforts to educating the public of its rights according to the public trust doctrine.
Two other current beach access issues are:
- 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.
Beach Attendance Records
The state only maintains beach attendance records for the Parks & Forestry operated state beach, Island Beach State Park.
Economic Evaluation of Beaches
Research conducted by the Richard Stockton Coastal Research Center indicated that 22 percent of the 32 billion dollars spent on tourism related recreational activities is generated from direct beach or waterfront activities.
"New Jersey's 127 miles of white sand beaches are an integral component of our overall tourism economy", said Nancy Byrne, executive director of the New Jersey Office of Travel & Tourism. "As the state's most famous attraction, visitors and residents alike flock to the Jersey Shore, generating revenues for boardwalk amusements, restaurants, hotels and countless retail businesses that depend on a healthy beach environment."
Reports produced in 2006 and 2007 by Dr. Robert Costanza and others at the Gund Institute, as well as staff members at New Jersey Department of Environmental Protection valued beaches like Sandy Hook and Sea Girt, with their environmentally essential sand dunes, to be worth about $42,000 per acre. The reports valued the New Jersey coastal shelf at $1,299 per acre.
The state has performed an evaluation to determine how municipalities are utilizing the beach fees they charge to the public.
Overall state tourism contributes about $32 billion to the state’s economy, generating about 430,000 jobs. Tourism revenue exceeded $30 billion in 2005, with 70 percent generated by coastal communities, according to a report issued in July 2008 by the Center for Integrative Environmental Research at the University of Maryland.
NOAA's Coastal Services Center (CSC) has written a discussion of the recreational value of beaches, in the context of beach fill projects. In 2009 CSC released Introduction to Economics for Coastal Managers, a basic introduction to economic ideas and methods that can be applied to coastal resource management. The economic concepts provided in this introduction are illustrated through several case studies. Other CSC publications can be found here.
The following two websites provide information on the economic value of coasts and the ocean throughout the country.
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 website in September 2008. The largest database in the world of studies documenting the environmental and recreational values of ocean resources, the website 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. NOEP has now released State of the U.S. Ocean and Coastal Economies 2014, which points out that there is an imbalance between the economic importance of coasts and coastal oceans and the federal support for stewardship of these resources. According to the report, coastal states supply over 81 percent of American jobs and contribute $13 trillion to the economy, or 84 percent of GDP. More on this here. The National Ocean Economics Program previously 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 Center for the Blue Economy (CBE) at the Monterey Institute of International Studies now houses the National Ocean Economics Program (NOEP).
The website of Restore America's Estuaries has a report The Economic Value of Coasts and Estuaries. 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.
A report A Review and Summary of Human Use Mapping in the Marine and Coastal Zone was published in December 2010. This report was prepared by ERG for NOAA's Coastal Services Center. The report evaluated different methods and approaches to measure human uses of the coastal and marine environment. The uses were divided into 1) military and industrial uses, 2) consumptive uses (e.g., fishing) and 3) non-consumptive activities (e.g., swimming, surfing, kayaking).
For additional general discussion of the economic impacts of beaches, please see the article Economic Impact of Beaches.
Perception of Supply and Demand
According to the 2001 Assessment, New Jersey's coastal water and adjacent shorelines are a valuable but limited public resource. Existing development often blocks the waters from public view and/or makes physical access to the waterfront difficult or impossible. In addition, private ownership of land immediately inland of publicly owned tidelands often limits public access to those lands and the water that flows over them. There clearly is not enough coastal access, beach parking or public transportation to the beach to meet current demand, let alone projected future demand.
While it is the fourth smallest state in the country, New Jersey, with approximately 1,135 people per sq. mi., has the highest population density of any of the 50 states. With the entire population living within 50 miles of the coastline, in addition to the region being a major tourist destination for two of the largest metropolitan areas in the country (New York City and Philadelphia), demand for public access is extremely high. As significant residential development continues to occur in the southern coastal counties and redevelopment of urban coastal areas takes place statewide, some traditional accessways are being restricted or even lost, while demand for access continues to increase. Further, it is expected that demand for access along the oceanfront beaches will continue to increase as more and more people move to coastal areas. NJ, through the DEP, will continue to address this demand through its permitting and beach fill processes which seek to expand access as development continues. Public acquisition of property through the Green Acres and Coastal Blue Acres Programs should also assist in meeting access objectives in the future.
A general lack of information regarding locations, numbers, extent, and descriptions of existing public access areas makes it difficult to meet the programmatic objective. The DEP lacks both current, accurate information regarding the location and extent of public access areas, and long-term monitoring of conditions at these locations. An up-to-date, detailed inventory and description of access areas throughout the coastal area would certainly assist the coastal program in meeting its objective.
The loss of open space and the loss and degradation of important natural and historic resources continue at a rapid pace in New Jersey. Many suburban and rural communities are continuing to experience the pressures of sprawl development. In some areas of the state, more than 90% of lands are already developed, and open spaces are extremely limited. In other areas, there are many acres of open land; some is forested, some is wetlands, some is farmed and some of it is protected as open space. However, most of the open lands in New Jersey are not protected. Whether farmland or forest lands, more acres are developed into other uses each year than are set aside for open space preservation. Many of the state's historic resources continue to be lost due to lack of adequate resources to protect and preserve them.
The preservation of open space protects land from future development, but far more importantly, preservation efforts provide the foundation for maintaining healthy ecosystems and sustainable communities in New Jersey. Moreover, the land is often preserved for the use and enjoyment of all New Jersey residents and visitors to the state. In urban settings, parks are important to the quality of life for city neighborhoods. The strength of New Jersey's tourism industry depends in large part upon New Jersey's unique and beautiful natural and historic resources. The department strives to both protect and interpret these natural and historic resources, and to provide outdoor recreation opportunities, facilities, public access to state lands and waters, and education programs in a variety of settings. These needs have not been adequately addressed over the last decade and must be met if the public is to receive the full benefits of open space and historic resource preservation.
Following is an informative article on Beach Access that appeared in the Asbury Park Press in August 2003.
Beach Access: You Can't Get There From Here
By Alison Waldman, Asbury Park Press, August 3, 2003
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 AccessMeanwhile, 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.
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.
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."
Public Education Program
Department of Environmental Protection (DEP) Commissioner Bradley M. Campbell announced in April 2005 the first in a series of workshops being offered to local and county officials to explain public access issues along the shorelines of New Jersey’s oceans, bays and coastal rivers. The workshops focused on the Public Trust Doctrine and provide practical steps to promote access to the state’s coastal resources.
“These workshops will strengthen protection of and access to New Jersey’s waters and shoreline for residents and visitors alike,” said Commissioner Campbell. “The people of New Jersey will continue to have adequate access to New Jersey’s natural treasures as a basic right afforded to all under the Public Trust Doctrine.”
NJCMP staff developed a handbook entitled Coastal Public Access in New Jersey: The Public Trust Doctrine and Practical Steps to Enhance Public Access, to supplement the information provided at the workshops. The handbook is intended for use as a reference tool for coastal managers at the municipal level, providing information on public access issues as well as steps for protecting and improving local public access.
The state also uses books, brochures and signs to educate the public about beach access.
NJ State Park Service
- NJDEP, Open Space Strategic Plan
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