DIAMOND BEACH, NJ - Before losing a two-year court fight
in May, a private beach club on the Atlantic Ocean here wanted
to charge $15,000 for a lifetime membership or $700 for eight
badges to get on the beach this summer. But a three-judge
appeals court threw out those fees, ruling that exclusive
oceanfront clubs with high rates violated New Jersey's public
trust doctrine.
The court opened the little 480-foot beach in Cape May County,
the Atlantis Beach Club, to all members of the public for
what it called "reasonable" fees. The state's environmental
department set the fees last month at $55 for the season,
$40 for a month, $15 for a week or $3 for a day.
The club's president and co-owner, Robert Ciampitti, is incensed
at both the ruling and state-imposed fees, saying they do
not cover the club's property taxes and other costs of operation,
let alone provide a profit. He has appealed the ruling to
the State Supreme Court and threatened to close the beach
unless the state increases the fees.
Environmentalists and other advocates of "open beaches"
in New Jersey, however, are elated. They say the ruling, if
left undisturbed by the State Supreme Court, will provide
a powerful legal tool for future court fights against exorbitant
charges by beach clubs and private beach owners who try to
keep the public from the ocean waters and sand in front of
their dunes and homes.
"The coast is becoming increasingly privatized,"
said Tim Dillingham, executive director of the American Littoral
Society, an environmental organization, which joined the court
fight against the club that a group of Atlantis's neighbors
started in 2002. "We are seeing a race along the New
Jersey coast to lock up access to the beaches and privatize
great lengths of it."
In 1977, a state survey found that about 26 percent of the
Atlantic coastline in New Jersey was privately owned. The
state's Department of Environmental Protection says it does
not have a more recent breakdown of public-private ownership.
But "open-beach" groups and environmental organizations
said they thought the share of private ownership and restrictions
on beach access for the public has increased in recent years
as bigger homes and condominiums filled lots off beaches or
replaced the hotels, clubs and bungalows of earlier generations.
"With these very expensive houses, people have a sense
of entitlement to exclusivity," Mr. Dillingham said.
The court's decision in May is the first major one in 20
years in New Jersey dealing with the public trust doctrine,
a concept created centuries ago in Roman law that opened the
ocean and tidal land to all for fishing and navigation.
In 1984, the New Jersey Supreme Court expanded the doctrine
on the state's 126-mile Atlantic shoreline, saying swimmers,
boaters, fishermen and others were entitled to access to the
ocean's waters and tidally washed beaches, whether publicly
or privately owned. It also said they were entitled to use
"some" part of the dry sand on private beaches to
sunbathe, rest or relax.
The appeals court ruling in May went further, saying the
public was entitled to use all the dry sand at Atlantis. It
also dismissed Atlantis's proposed fees as exclusionary and
said they discriminated against individuals and small families,
and it derided the owner's notion he was entitled to make
a profit from his property on the Atlantic.
An assistant state attorney general, Stephen Brower, said
his office planned to use the Atlantis ruling as additional
legal precedent in a current court fight against a beachfront
homeowners group in Point Pleasant Beach. The state has accused
it of barring the public from the dry sand on its beaches.
In addition, he said, the state has started investigating
complaints that developers of new oceanfront homes in Sea
Bright and Monmouth Beach have tried to restrict beach access.
Perhaps the nastiest and longest-running beach-access fight
on the coast has helped to block a $50 million project by
the Army Corps of Engineers on Long Beach Island, a popular
tourist haven in Ocean County. The plan was to rebuild all
16 miles of beaches on the island by pumping sand to them
from offshore. The corps requires public access and use of
both dry and wet sand on beaches that are rebuilt with federal
money.
Some towns on the island offer plenty of access. But in the
communities of North Beach and Loveladies, signs by driveways
leading to grand beach homes say the beaches are private,
and access is barred.
State officials say they are negotiating with homeowners
for guarantees allowing public use of private beaches and
perpendicular access from the roads every quarter mile. They
say they hope to finish that work by fall.
The project has also been delayed by the federal government's
failure to provide its full 65 percent share of the beach-rebuilding
project. State officials say they hope some federal money
will be available soon, so pumping can start before winter.
Some officials on Long Beach Island say some of its beaches
are seriously eroded now and will remain vulnerable to coastal
storms until they are rebuilt.
Atlantis's neighbors say they started the court fight two
years ago because of excessive fees and the club's refusal
to allow them to use its entry boardwalk to reach a neighboring,
less costly beach in front of a condominium complex, Seapoint
Village. After a protest march in 2002 and the arrest of one
opponent for trespassing, the neighbors banded together as
the Raleigh Avenue Beach Association sued Atlantis, charging
it had violated the public trust doctrine.
The group is pleased with its court victory. "The public
trust doctrine was not something that we just made up,"
said a spokeswoman, Carmen Axmann. "It was there when
Atlantis acquired the property, is still there, and, for the
public's sake, will be around in the future."
The group's lawyer, Stuart Lieberman, noted, "With all
the development pressure in coastal New Jersey, this is an
increasingly significant issue."
Mr. Ciampitti's lawyer, Gerald J. Corcoran, has asked the
state Supreme Court to review the ruling. He said, "I
don't believe the public trust doctrine requires private property
owners to make a privately-owned beach totally available to
the public and blocks charging fees negotiated between a club
owner and members."
In an interview, Mr. Ciampitti said he thought the decision
improperly took private property without compensation. Heargued
that the United States was "premised on being able to
make a profit."
But in the unanimous decision, the court said, "The
notion that lands are to be held in public trust, protected
and regulated for the common use and benefit, is incompatible
with the concept of profit."
Despite their court victory, some members of the Raleigh
group who once went to Atlantis's beach say they will not
return because of what they called past excessive charges,
curt guards and sour relations. Instead, they said, they'll
go to free municipal beaches nearby or the beach at the Seapoint
condominium next to Atlantis.
"It's the principle of the thing," said one, Ed
Shirk.
Chuck Slugg said he saw fees to get on the beach rise to
$700 a year from $300 by the end of a five-year agreement.
"We will not give them any more money," his wife,
Mary Jane Slugg, said of Atlantis. |