PUBLIC TRUST DOCTRINE Public Trust Doctrine principles and Private Property Rights Presented by Steven Mairella, Of Counsel Mc. Manimon & Scotland, L. L. C. © 2007 Steven Mairella and M&S, LLC D R A F T
OBLIGATORY DISCLAIMERS: The views and opinions expressed in this presentation are my own. They do not necessarily represent the views or opinions of Mc. Manimon & Scotland, L. L. C. or of the Monmouth University Urban Coast Institute, and are not intended to be, nor should they be relied upon as, a substitute for fact-specific legal advice. Side effects are generally mild and may include drowsiness, nausea, and inability to concentrate. If you experience a [headache] lasting more than four hours, see your doctor. D R A F T
THE PUBLIC TRUST DOCTRINE IN NEW JERSEY – “AN EVOLVING CONCEPT” Origins in “natural law”, ancient Roman law – Justinian Code 1821 – Arnold v. Mundy: Waters and land under water (i. e. , “tidal lands”) belong to all the people of New Jersey for purposes of “passing and re-passing, navigation, fishing, fowling, sustenance, and all other uses of the water and its products. ” “Ancillary use” of dry sand. D R A F T
THE PUBLIC TRUST DOCTRINE IN NEW JERSEY – “AN EVOLVING CONCEPT” 1972 – Borough of Neptune City v. Borough of Avon-by-the-Sea: “Public rights in tidal lands not limited to navigation and fishing but extend to recreationaluses, including , bathing, swimming, and other shore activities ”. “Dry sand” owned by a municipalityand dedicated to public beach purposes must be “open to all on equal terms” D R A F T
THE PUBLIC TRUST DOCTRINE IN NEW JERSEY – “AN EVOLVING CONCEPT”, cont’d 1978 – Van Ness v. Borough of Deal: “…in New Jersey, a proper application of the Public Trust Doctrine requires that municipally owned upland sand area adjacent to the tidal waters must be open to all on equal terms and without preference. ” “Our ruling here … is concerned with municipally owned open beaches. We are not called upon to deal with beaches on which permanent improvements may have been built, or beaches as to which a claim of private ownership is asserted. ” D R A F T
THE PUBLIC TRUST DOCTRINE IN NEW JERSEY – “AN EVOLVING CONCEPT”, cont’d 1984 – Matthews v. Bay Head Improvement Ass’n: Issue: “…[w]hether, ancillary to the public’s right to enjoy the tidal lands, the public has a right to gain access through and to use the dry sand area not owned by a municipality but by a quasi-public body. ” Two aspects (i) “right to cross privately owned dry sand : beaches in order to gain access to the foreshore”; (ii) “right to sunbathe and generally enjoy recreationalactivities as ” enjoyed by the public in municipal beaches. D R A F T
THE PUBLIC TRUST DOCTRINE IN NEW JERSEY – “AN EVOLVING CONCEPT”, cont’d Matthews v. Bay Head Improvement Ass’n cont’d – “…[w]e perceive the public trust doctrine not to be ‘fixed or static’ but one to ‘be molded and extended to meet changingconditionsand needs of the public it was created to benefit”. [citing Avon] – “…[R]ecognizing the increasing demand of our State’s beaches and the dynamic nature of the public trust doctrine we find that the public must be given both , access to and use of privately-owneddry sand areas as reasonably necessary. ” D R A F T
THE PUBLIC TRUST DOCTRINE IN NEW JERSEY – “AN EVOLVING CONCEPT”, cont’d Matthews v. Bay Head Improvement Ass’n. cont’d: “While the public’s rights in private beaches are not coextensive with the rights enjoyedin municipal beaches, private landowners may not in all instances prevent the public from exercising its rights under the public trust doctrine. ” “Precisely what privately-owned upland sand area will be available and required to satisfy the public’s rights under the public trust doctrine will depend on the circumstances. ” D R A F T
THE PUBLIC TRUST DOCTRINE IN NEW JERSEY – “AN EVOLVING CONCEPT”, cont’d Matthews v. Bay Head Improvement Ass’n. cont’d: “Balancing Test” – at least 4 factors to be weighed: Location of the dry sand area in relation to the foreshore Extent and availability of publicly-owned upland sand area Nature and extent of public demand Usage of the upland sand land (sic) by the owner D R A F T
THE PUBLIC TRUST DOCTRINE IN NEW JERSEY – “AN EVOLVING CONCEPT”, cont’d Matthews v. Bay Head Improvement Ass’n. cont’d: “We realize that considerableuncertaintywill continue to surround the questionof the public’s right to cross private land to use a portion of the dry sand. ” … D R A F T
THE BALANCING TEST, AS APPLIED 2005 – Raleigh Ave Beach Ass’n v. Atlantis Beach Club Case involved 480’ wide by 339’ deep stretch of dry sand owned by private beach club Access over private property conceded. Trial court found that use of 3’ wide strip of dry sand adjacent to mean high water mark was sufficient to permit “ancillary use” of dry sand for Public Trust Doctrine purposes. D R A F T
THE BALANCING TEST, AS APPLIED, cont’d 2005 – Raleigh Ave Beach Ass’n v. Atlantis Beach Club, cont’d Supreme Court, applying Matthews factors, reverses, and holds that entiredry sand area must be made available to the public : Dry sand area “easily reached by pedestrians …” “There is no publicly-owned beach area in Lower Township” (though there was an adjacent privately owned beach open to the public) “That there is enormous interest in the New Jersey shore is well known; tourism associated with New Jersey’s beaches is a $16 billion annual industry” “General public used the beach without limitation or fee” prior to 1996; public use required by CAFRA permit issued in 1986. D R A F T
THE BALANCING TEST, AS APPLIED, cont’d Raleigh Ave Beach Ass’n v. Atlantis Beach Club, cont’d Justice Wallace, Jr. , dissenting: Would distinguishes Matthews as involving a “quasipublic”, not truly “private” property owner. Would limit public’s ancillary right to use privatelyowned dry sand area to a 10’ wide strip adjacent to mean high water mark. D R A F T
THE BALANCING TEST, AS APPLIED, cont’d 2007 – Bubis v. Kassin: Trial court level case, currently on appeal. Held, public not entitled to use dry sand area of privately owned beach: Municipally-owned beach directly adjacent to the private property; miles of public beaches are available and in close proximity. Property was former commercial beach club, but not currently operated as such. Public not prohibited from walking on dry sand adjacent to high water mark; 2 nd owner voluntarily allows “overflow” crowds use of a portion of the dry sand during the summer when public beaches are crowded. Public use of property would interfere with and destroy its character and beneficial use to owners. D R A F T
THE BALANCING TEST, AS APPLIED, cont’d Bubis v. Kassin, cont’d – “Pithy quotes” from the trial judge: “The public’s right to use the ocean must be balanced and carefully weighed against the private owner’s property rights. ” “The right of possession, use, and disposition of private property, as well as the landowner’s right to exclude, have traditionally been the most guarded of rights by our courts. ” “…[t]he critical and distinguishing fact in [Raleigh] was that there were no publicly owned or operated beaches in the entire area and very limited access to the foreshore. …” “The fact that the defendant [in Raleigh] operated the property as a business was a significant material factor in the application of the Public Trust Doctrine. ” D R A F T
LEGAL CONCLUSIONS SAND IS NOT THE ONLY THING THAT HAS BEEN ERODING AT NEW JERSEY BEACHES OVER THE YEARS … WHETHER OR NOT YOU CAN EXCLUDE THE PUBLIC FROM YOUR PRIVATELY-OWNED BEACH “DEPENDS ON THE CIRCUMSTANCES” … !? !? WHO OWNS THE PROPERTY AND WHAT IT IS USED FOR SEEM TO BE RELEVANT AS TO WHETHERE IS AN ENFORCIBLE PRIVATE PROPERTY RIGHT … !? !? “PUBLIC NEED” TRUMPS “PRIVATE PROPERTY RIGHTS” … !? !? !? D R A F T
“REAL WORLD IMPLICATIONS” There is no way to accurately predict whether access over your private property or use of your privately-owned beach will be required to be made available to the public…. If public access or use is required, don’t expect to be compensated for it …. . “Hobson’s Choice” - “voluntary” dedication to public access, use as a “condition” of CAFRA permitting… also “evolving”? D R A F T
“REAL WORLD IMPLICATIONS”, cont’d Title insurance companies recognize the uncertainty, and exclude Public Trust Doctrine matters from title insurance coverage: Standard NJ exception language: “Subject to the rights of the public in and to the beach (dry sand area) abutting the Atlantic Ocean, its bays and tributaries for the purpose of access to the water and recreation”. (exception language provided courtesy Stewart Title, Harry Hayes, Esq. ) D R A F T
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