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E-M:/ NJ Beach Case



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Enviro-Mich message from "abrasie" <abrasie@gtbay.org>
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Below is a press release re a similar beach walking case undertaken and
won by a coalition which included the New York/New Jersey Baykeeper.

Anne Brasie
The Watershed Center
Home of Grand Traverse Baykeeper

-----Original Message-----
From: Andy Willner [mailto:andy@nynjbaykeeper.org] 
Sent: Tuesday, August 02, 2005 4:21 PM
To: abrasie; wkamembers@waterkeeper.org
Subject: Re: / MI Supreme Court protects beach walking

Congratulations, must be the season for it, see press release on NJ
beach 
access, NJ Supreme Court decision.  Andy

PRESS RELEASE

For Immediate Release: July 26, 2005

Contact: Ralph Coscia, Citizens Right to Access Beaches, 732 600-0314

Andrew Willner, Debbie Mans, NY/NJ Baykeeper, 732 888 9870

Tim Dillingham, American Littoral Society 732 291 0055

NJ SUPREME COURT UPHOLDS PUBLIC ACCESS TO PRIVATE BEACH



Citizens Right to Access Beaches (CRAB), NY/NJ Baykeeper, and the
American 
Littoral Society applaud the New Jersey Supreme Court's decision,
decided 
July 26, 2005 (Raleigh Avenue Beach Association v. Atlantic Beach Club,
Inc. 
et al., A-40-04), that upholds the Appellate Court decision of June 3,
2004, 
and holding that "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." The Supreme Court ordered a private
beach 
club along Diamond Beach in Lower Township, Cape May County, to provide 
public access to and use of the entire beach and ocean areas under the 
public trust doctrine.

The groups (CRAB, ALS, and Baykeeper) filed amicus or friend of the
court 
briefs in the matter and argued the case before the Supreme Court.
Baykeeper 
and ALS were represented by Andrew Provence and Gordon Litwin of Ansell,

Zaro, Grimm & Aaron, and CRAB was represented by Carter Strickland and
Susan 
Kraham of the Rutgers Environmental Law Clinic.

In the decision, the Supreme Court traced the history of the public
trust 
doctrine to Roman law, and held 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." The Court specifically
rejected 
the claim of the beach club that its property rights included the right
to 
charge whatever it wants for access, holding that "exclusivity of use,
in 
the context here, has long been subject to the strictures of the public 
trust doctrine."

-more-

The Court also reaffirmed that privately-owned beaches are subject to
public 
access and use under the public trust doctrine, an issue that had not
been 
squarely addressed in the Matthews case which concerned a quasi-public
beach 
club with a "symbiotic relationship" with the town. The Court located
the 
appropriate balance between private ownership and historic public trust 
rights by applying the Matthews factors, which look to the location of
the 
dry sand area in relation to the foreshore, the extent and availability
of 
publicly-owned beach areas, the nature and extent of the public demand,
and 
usage of the dry sand area by the owner. These factors justified
allowing 
the public to access and use the entire beach area owned by Atlantis
because 
of the longstanding public access to and use of that beach, a CAFRA
permit 
condition requiring beach access, 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.

The Supreme Court further affirmed DEP's authority to review and approve

fees for private beaches to ensure that they do not erect economic
barriers 
to beach access instead of physical barriers.

Ralph Coscia of CRAB said, "This is great news for the New Jersey
citizens 
and others who visit the Jersey Shore and contribute to its $16 billion 
tourist industry. Now that the Court has made clear that citizens have a

usage right in the entire shore, not just municipal beaches, we
encourage 
everyone to take pride in that unique and beautiful landscape and treat
it 
with as much respect and care as they would their own home."

Andrew Willner, Executive Director of NY/NJ Baykeeper (Raritan Baykeeper

Inc.) said, "The Supreme Court today held what Baykeeper has been
advocating 
for fifteen years - that the public has an unassailable right to access
the 
shoreline for traditional purposes, and that the public never entirely
gives 
up its interest in public trust resources." He continued, "We are ready
to 
challenge the exclusionary tactics of other private beach clubs, 
condominiums, and some municipalities and are turning our eye to the
more 
urbanized north-eastern part of the State for appropriate cases."
"Developers can no longer erect a wall of homes and condominiums along
our 
beaches and dupe buyers by claiming they have an exclusive private
beach," 
said Debbie Mans, Policy Director, Baykeeper. "We urge the State to
enforce 
the public's right to access the shoreline in a systematic way through
its 
regulatory and enforcement authority."

-more-

"Today, the public has greater legal rights to access and use the New
Jersey 
Coast. Private landowners have less than they have asserted in the past.
The 
Supreme Court's decision means that, in most instances, the private 
landowners cannot exclude the public from the shore," said Tim
Dillingham, 
Executive Director of the American Littoral Society. He continued,
"While we 
are elated at this decision, our work is by no means finished. The court
did 
not articulate a bright-line rule-they drew no fixed line in the sand.
The 
public still may have to fight for access beach by beach-but now they
are 
much better armed." Dillingham concluded, "This decision also provides a

strong legal foundation for the State to proactively advance and protect
the 
public's rights."

Background:

Until 1996, the beach on the Atlantis property was open to the public 
free-of-charge. In the summer of 1996, Atlantis established a private
beach 
club that began to limit public access to its beach by charging
subtantial 
fees that grew to $700 for annual for beach badges and $10,000 for a 
so-called lifetime easement to use the beach, and by patrolling the
beach 
with guards to keep out the public. In June 2002, a citizen was issued a

summons for trespassing when he attempted to leave the wet sand and
cross 
the Atlantis beach property. In July of 2002, Atlantis filed an Order to

Show Cause and Verified Complaint seeking an injunction to restrain
citizens 
from accessing the Atlantis property. In September of 2003, the trial
court 
held that the public was only entitled to use a three-foot wide strip of
dry 
sand and only for the purposes of traversing the property. The State and
the 
Association appealed. The Appellate Division held that Atlantic could
not 
limit vertical or horizontal access to its dry sand area nor interfere
with 
the public's right to use of the dry sand for intermittent recreational 
purposes.


# # #

Andrew Willner, Executive Director
NY/NJ BAYKEEPER



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