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Regulating Public Access to New Jersey’s Beaches & Coastal Areas

With the State’s 127 miles of Atlantic Ocean coastline, public access to New Jersey’s beaches has long been a hot topic, and not just when the thermometer tops 90 degrees, as is expected along the Jersey Shore this week.  Conflicts between public access rights and private land ownership are at play on the sand (and other coastal areas), and have only intensified in recent years, following a series of lawsuits and attempts to institute a regulatory scheme that would balance these competing interests.  As any real estate professional would tell you, some of the most expensive New Jersey property is found along our shoreline.  Like any other landowner, beachfront property owners expect that with their deed comes the right to control their property, which includes the freedom to keep others out.  In the face of newly proposed beach access regulations, we ask:  How does this expectation fare?

The New Jersey Supreme Court’s decision in Raleigh Avenue Beach Ass’n v. Atlantis Beach Club, Inc., 185 N.J. 40 (2005) prompted the State to adopt comprehensive beach access regulations.  The first attempt at these rules by the Corzine administration was short-lived and ultimately invalidated by the Appellate Division for among other things, attempting to require 24/7 public beach access.  See Avalon v. N.J. Dep’t of Envtl. Prot., 403 N.J. Super. 590 (2008).  In April 2011, the Christie administration proposed an entirely different set of public access rules.  See 43 N.J. Reg. 772(a) (Apr. 4, 2011), and the New Jersey Department of Environmental Protection (“NJDEP”) has recently announced that it expects to finalize these rules.  See 44 N.J. Reg. 614(a) (Mar. 19, 2012).

The primary difference between the Corzine and Christie rules involves the means of implementation.  The newly proposed rules place responsibility for public access with local governments and require municipalities to adopt their own beach access plans (called Municipal Public Access Plans).  Municipalities with an access plan may seek monetary contributions from developers in lieu of requiring them to actually provide on-site public access.  One goal is to use these contributions to provide off-site public access in a manner that may be more meaningful than establishing piecemeal access on isolated properties.  Gone is the 24-hour beach access requirement, as the NJDEP now takes the position that 24/7 access is not required if it is impractical from a risk of injury perspective, or because of a public safety threat unique to particular property.

Most importantly, the proposed rules make clear that public access is not always required.  In many instances, public access is not required under the status quo, and this is unlikely to change.  Where public access was not previously required, maintenance, improvement, and even some expansion proposals will not necessarily prompt a public access requirement.  Thus, most single-family beachfront homes will not have to provide any form of public access.  New residential and commercial developments may or may not have to provide public access depending on their size and other aspects of the development.  Moreover, public access does not always mean direct access to the sand and surf.  It may mean access to a waterfront walkway, pier, dock or other water-dependent amenity.

As the proposed rules take shape through enactment and enforcement, further judicial review of the underlying public access requirements seems likely.  Given the frequency with which beach access issues have made it before the New Jersey Courts, we can expect that the judiciary too
will eventually draw its line in the sand.

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