PUBLIC TRUST DOCTRINE
Public Trust Doctrine principles and
Private Property Rights
Presented by
Steven Mairella, Of Counsel
McManimon & 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 McManimon &
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 recreational uses,
including bathing, swimming, and other shore
activities”.
“Dry sand” owned by a municipality and 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 recreational activities”
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
changing conditions and 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-owned dry 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 enjoyed in 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 considerable uncertainty will continue
to surround the question of the public’s right to cross
private land and 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 entire dry 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; 2nd 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 WHETHER THERE 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