N.J. Admin. Code § 7:7-16.9
Current through Register Vol. 56, No. 8, April 15, 2024
As the trustee of the public rights to natural resources, including tidal waterways and their shores, it is the duty of the State not only to allow and protect the public's right to use them, but also to ensure that there is adequate access to these natural resources. As the State entity managing public access along the shore, the Department has an obligation to ensure that this occurs. Access ensured by the Public Trust Doctrine can be classified into different types, including linear/lateral access, perpendicular access, and visual access.
Reasonable, convenient and safe conditions at or around public access areas and public accessways often affect whether the public will be able to reach and use tidal waterways and their shores. Such site conditions include informative signage marking public accessways, the absence of threatening or misleading signage, adequate facilities (such as restrooms and fish cleaning tables) within a reasonable distance of tidal waterways and their shores and sufficient parking located near public accessways. Additionally, special measures, such as ramps installed in accordance with the Americans with Disabilities Act, can be taken to ensure that coastal lands and waters are accessible by all members of the public.
Development can block tidal waters from public view and/or make physical access to tidal waterways and their shores difficult or impossible. Tidal shore areas located in residential areas or within private beach areas are sometimes fenced, blocked or otherwise obstructed, further complicating access to these sites. In addition, municipalities have at times sold portions of the public beaches and vacated public streets and street ends to private owners. The private ownership of land immediately inland from tidal waterways and their shores can limit public access to tidal waterways and their shores. This leads to limited access to and enjoyment of public resources by citizens who have rights of access and use recognized and protected by the Public Trust Doctrine. Furthermore, public funds have been used to support protection and maintenance of these resources. Barriers to access also negatively affect tourism, which is one of the top revenue producing industries in New Jersey.
The developed waterfront, due to its past industrial utilization and long history of development, has been largely closed to the public, limiting their ability to exercise their public trust rights. In an effort to encourage public access, the Department intends to promote a continuous linear network of open space along the shore of all tidal waters that may be used for fishing, walking, jogging, bicycling, kayaking, sitting, viewing and similar recreational activities. The path will be continuous but may detour around existing or proposed industry due to risk of injury from existing or proposed hazardous operations, or substantial existing and permanent obstructions. These linear walkways will connect future and existing waterfront parks and open space areas. The goal of the rule is to assemble a system, through acquisitions and easements, that will provide continuous linkages and access along the waterfront, enabling the State to adhere to its responsibilities to safeguard public rights of access to and use of all tidal waterways and tidal waterfront areas in New Jersey. Where easements are secured from landowners for public access purposes, the New Jersey Landowner Liability Act (2A:42A-2 et seq.) offers limited protection from the liability they would normally face under the common law.
In addition to the historic legal rights retained by the public to tidal areas, public funds are invested in numerous ways to protect these public resources and their adjacent lands. The lands and waters subject to public trust rights receive many State and Federal dollars which have been invested in beach replenishment, shore protection, road projects, water quality and monitoring programs, and solid waste monitoring. In part as a result of this investment, the public has the right to use these resources. State funds are also used to acquire and develop lands for parks and recreation through the Department's Green Acres Program. These programs are financed not just by the communities within which these lands and waters subject to public trust rights are located, but by residents Statewide. Additionally, residents Statewide contribute to fund various Federal programs that protect and enhance lands and waters subject to public trust rights. The rule ensures that all residents who contribute to the protection of these lands and waters are able to exercise their rights to access and use the lands and waters. Further, they are consistent with Federal programs which require projects utilizing Federal funds to provide public access upon receipt of funds and will ensure that increases in public access apply to lands and waters subject to public trust rights Statewide.
The Public Trust Doctrine is an example of common law authority that is continually developing through individual Court cases. In addition to cases involving physical barriers to access, there have been instances where municipalities and local property owner associations have attempted to limit use of recreational beaches to their citizens and members through methods designed to exclude outsiders. In the majority of these cases, New Jersey courts have ruled that these actions violate the Public Trust Doctrine because lands that should be available for the general public's recreational use were being appropriated for the benefit of a select few.
New Jersey Supreme Court cases including Borough of Neptune City v. Borough of Avon-by-the-Sea, 61 N.J. 296 (1972) and Van Ness v. Borough of Deal, 78 N.J. 174 (1978) held that municipalities could not discriminate between residents and non-residents using municipally owned beaches through differential fees or by setting aside separate areas for each. The decision in the case Matthews v. Bay Head Improvement Association, 95 N.J. 306 (1984) recognized that, under the Public Trust Doctrine, not only does the public have the right to use the land below the mean high water mark, but also they have a right to use a portion of the upland dry sand area, on quasi-public beaches, ". . .where use of dry sand is essential or reasonably necessary for enjoyment of the ocean, the doctrine warrants the public's use of the upland dry sand area subject to an accommodation of the interests of the owner."
Most recently, the Court's ruling in Raleigh Avenue Beach Association v. Atlantis Beach Club, Inc., et al., 185 N.J. 40 (2005) used the criteria established in the Matthews case, and recognized that this principle also applies to the upland dry sand of a wholly privately owned and operated beach. The decision also confirms that the Department has the authority to regulate fees charged for use of beaches under CAFRA. The decisions in these cases guide the Department in upholding the Public Trust Doctrine and providing adequate public access. Other such cases include Arnold v. Mundy, 6 N.J.L. 1, 3 (Sup. Ct. 1821); Bell v. Gough, 23 N.J.L. 624 (E. & A. 1852); Martin v. Waddell's Lessee, 41 U.S. 367, 10 L.Ed. 997 (1842); Shively v. Bowlby, 152 U.S. 1, 14 S.Ct. 548, 38 L.Ed. 331 (1894); Slocum v. Borough of Belmar, 238 N.J.Super. 179, 185 (Law Div. 1989).
N.J. Admin. Code § 7:7-16.9