The public trust doctrine is the common law principle that a state holds tidally flowed lands up to the mean high-water mark in trust for the people. New Jersey’s 2019 Public Access Law affirms that this doctrine is “not fixed or static,” but instead adopts to meet changing conditions and public needs. The law gives the New Jersey Department of Environmental Protection (“DEP”) the duty and authority to protect public access to tidal waters and adjacent shorelines.

Sea Point, a 24-unit waterfront condominium association, applied for a waterfront development permit to reconstruct a deteriorated bulkhead. DEP required that Sea Point submit a public access proposal. Instead, Sea Point offered to fund a nearby access improvement project. DEP rejected the offer and conditioned the permit on Sea Point providing on-site public access. Sea Point appealed.

The Court upheld the condition, finding that the Public Access Law unambiguously requires DEP to review existing public access and require additional access consistent with the public trust doctrine when certain relief is sought. The Court rejected the argument that the four-part Matthews balancing test (used for evaluating the competing interests of the public to reasonable access against the interest of the private landowner) applies, reasoning that the legislature created specific criteria for public access determinations and did not mention the Matthews test. Instead, the Court concluded that the legislature meant for DEP to align any public access it may require of a permit applicant with the public’s right to access tidal waters and adjacent shorelines.

The Court also held that Sea Point’s proposed monetary contribution could not substitute for on-site public access because the statute did not provide for that option. The Court also held that Sea Point’s takings claim was premature until DEP makes a final determination of specific access requirements. Finally, the Court noted that as a statute, the Public Access Law takes precedence over the preexisting Coastal Zone Management rules, and the statute’s provisions are self-executing despite DEP’s delay in adopting implementing regulations.

This decision underscores the strength of New Jersey’s Public Access Law and affirms DEP’s broad authority to require on-site access in connection with waterfront development.