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Lieberman Blecher & Sinkevich is successful in a much disputed beach access case

May 21, 2004

Ruling expands access to beaches

By RICHARD DEGENER
Staff Writer, (609) 463-6711

LOWER TOWNSHIP – An appellate court, in a decision hailed by the state as a major victory for public beach access, ruled Thursday that a group of Diamond Beach homeowners have the right to cross the sands of a private beach club.

The judges’ ruling also put the state Department of Environmental Protection in charge of determining the club’s beach-tag prices.

Previous rulings gave the Raleigh Avenue Beach Association access rights to cross the dry sand to get to the wet sand at a strand owned by the Atlantis Beach Club. A lower court ruling even gave the Raleigh Avenue residents a 3-foot strip of dry sand above the wet sand.

The unanimous ruling by three Superior Court Appellate Division judges Thursday gives the homeowners access rights to all the dry sand at the Atlantis Beach Club, meaning they can walk anywhere on the privately owned beach.

“The public shall enjoy the right to use all of the dry sand and complete horizontal access to the subject property, including the ocean,” the ruling states.

The DEP, which filed a motion in the case after it was sued by both sides, called it a major victory for the public.

DEP Commissioner Bradley Campbell said the ruling supports the Public Trust Doctrine, a law that dates to ancient times and guarantees the public access to certain lands.

“It’s a significant victory for pubic access to our beaches and the Public Trust Doctrine. We’re pleased the courts allowed greater access than previously. I think the court recognized, to be meaningful, public access has to mean more than a 3-foot path to the water,” Campbell said.

The decision was even more than one Raleigh Avenue homeowner hoped for. Carmen Axmann joined about 200 other people in the association to win reasonable beach fees.

Atlantis Beach Club was charging families $700 per summer to use the beach, or selling them lifetime easements for $10,000, prices, which have gone up this year to $900 and $15,000. A single beach tag for one person sells for $300.

“I think it’s a huge win for us and the state. This affects all other private beaches. This will set a precedent all over the coast,” Axmann said.

The ruling does not allow the public to use the beach for extended periods of time; it allows only access to other areas. But in a decision much more important to homeowners like Axmann, the judges put the DEP in charge of deciding the beach-tag prices.

The ruling gives the agency until June 10 and says the tags must include daily, weekly, monthly and seasonal prices.

While most shore towns charge $20 or less for seasonal tags, Diamond Beach homeowners have said they would accept something higher, but it should not be hundreds or thousands of dollars. Campbell said the DEP would look for fees “that are commensurate with the costs.”

The ruling addresses fees: “The amount charged shall be reasonable and comparable to other beach-tag charges in the region, recognizing that (Atlantis Beach Club) is a private corporation; the fees established shall reflect an amount sufficient to cover costs of operation, which may include a reasonable amount for administrative services,” the ruling states.

Atlantis Beach Club must provide showers, lifeguards and beach cleaning if it is going to charge fees, the judges ruled.

The ruling was termed an “interim order” pending the filing of a formal full opinion, but Campbell said he expects no major changes in the final order. The record is important since the case could end up being heard by the state Supreme Court.

Attorneys for Atlantis Beach Club could not be reached for comment Thursday. They considered September’s lower court ruling by Superior Court Judge Steven Perskie a partial victory. It did not allow full access to the dry sand and did not require daily beach tags, something the Raleigh Avenue residents have been fighting for.

Stuart Lieberman, attorney for the Raleigh Avenue Beach Association, called the ruling “a major affirmation of the Public Trust Doctrine.”

“It’s full beach access. Judge Perskie gave us 3 feet,” Lieberman said.

The Public Trust Doctrine is apparently still being defined as it pertains to modern times at the New Jersey shore. The doctrine began with Roman Emperor Justinian almost 15 centuries ago.

The “Institutes of Justinian” guaranteed people the right to the seashore and other public areas. The doctrine was strengthened in 1215 in England with the signing of the Magna Carta. It came to New Jersey in the 17th century when King George II granted charters for East Jersey and West Jersey to loyal court allies John Berkeley and George Cateret.

While more concerned about navigation, fishing and hunting rights in the past, the old doctrine has been used by environmental groups to push beach-access issues.

The Sierra Club was one of the groups that filed briefs in this case. Tim Dillingham, of the Sierra Club, called Thursday’s ruling “very big” in defining how the doctrine relates to beaches.

“The question is, where does the Public Trust Doctrine allow the public on beaches? Perskie said only 3 feet above the high water. This gives the public all the dry sand and the ocean,” Dillingham said.

To e-mail Richard Degener at The Press:

[email protected]

Copyright 2004 © The Atlantic City Press

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