In much of this country, the shoreline has a growing amount of privately owned beaches. And let's face it, waterfront seating is always the most expensive. Maybe we gravitate towards water because we are all made of it.
The amount of usable beachfront property is limited and for this reason it is not uncommon for beachfront property to rise in price disproportionately to inland property.
As the quest to privatize our beaches continues, there becomes a growing gap between those who are rich and can't afford oceanfront property, and everyone else who wants access to the ocean but with increasing frequency is being locked out.
For this reason, the New Jersey Supreme Court decision in the Raleigh Avenue Beach Association case is very important. At issue in this case was the right of a private beach owner to charge $700 for a season beach pass. People who live in the area generally own their homes as retirement homes or as vacation homes.
In any case, everyone moved to the community to enjoy the ocean. For many years, access to the private beach was free. When it climbed to $200 people did not complain. But when it rose to $700, a lawyer (candidly, this lawyer) was hired and the fight began.
Recently, the New Jersey Supreme Court held that the private beach was obligated to allow the general public in. Moreover, the $700 fee was held to be illegal because it effectively precluded the general public from using the beach.
Instead, a more reasonable beach fee had to be adopted which took into account the cost of providing life guard and related services. The State Department of Environmental Protection has already assessed that at $55 a season, a far cry from $700.
Why is this important to everyone in the United States? It is important because the New Jersey Supreme Court is generally well regarded in this country. Often, what happens in New Jersey is a strong indication of what might happen down the road through the rest of the United States.
The case is important in light of increasing development pressures along our short lines. As development continues, the gap between those with access to our beaches and the rest of us widens -- the have and the have nots.
The Raleigh Avenue Beach Association case makes clear that even purely privately owned beaches may not be able to exclude the general public. At least in New Jersey, and perhaps ultimately outside New Jersey as well, a case-by-case analysis will have to be performed to assess, among other things, the availability of public beaches in the general area and the effect that providing public access will have on the ownership interests of the beach owner.
The legal authority for the Raleigh Beach Association case is an ancient doctrine called the"public trust doctrine." Under the public trust doctrine, the public has a right to use and enjoy natural resources such as the ocean. This right cannot be taken away even in instances where it is necessary to cross private property in order to enjoy the ocean. And in certain instances, the public even may use and the private sand beach as well.
The doctrine relates back to ancient Roman times when fishermen relied upon private property next to the ocean on which to cast their nets. In more contemporary times, the focus has been less on fishing and more on the right to use and enjoy the beach for recreation purposes. But the concept is the same: those who own private property that adjoins the sea may have an implied easement for public use within their title. This means that while they might believe that they have exclusive use and dominion over their property, in fact they may have to provide public use and enjoyment as a result of the application of the ancient public trust doctrine.
In time we will learn whether the public trust doctrine will be applied in the same manner through out the country. I certainly hope that this does happen. The ocean is a scarce resource that belongs to all of us. It cannot be monopolized by the elite to the detriment of the rest of us.
