New Jersey Administrative Code › Title 7 - ENVIRONMENTAL PROTECTION › Chapter 7 - COASTAL PERMIT PROGRAM RULES › Subchapter 9 - SPECIAL AREAS › Section 7:7-9.48 - Lands and waters subject to public trust rights

Current through Register Vol. 56, No. 14, July 15, 2024
(a) Lands and waters subject to public trust
				rights are tidal waterways and their shores, including both lands now or
				formerly below the mean high water line, and shores above the mean high water
				line. Tidal waterways and their shores are subject to the Public Trust Doctrine
				and are held in trust by the State for the benefit of all the people, allowing
				the public to fully enjoy these lands and waters for a variety of public uses.
				Public trust rights include public access which is the ability of the public to
				pass physically and visually to, from and along the ocean shore and other
				waterfronts subject to public trust rights and to use these lands and waters
				for activities such as navigation, fishing and recreational activities
				including, but not limited to, swimming, sunbathing, surfing, sport diving,
				bird watching, walking, and boating. Public trust rights also include the right
				to perpendicular and linear access.
(b) Public access to lands and waters subject
				to public trust rights shall be provided in accordance with the public access
				rule, 7:7-16.9. Development that does not
				comply with
				7:7-16.9, Public access, is
				discouraged in lands and waters subject to public trust rights.
(c) Rationale: The public's rights of access
				to and use of tidal waterways and their shores, including the ocean, bays, and
				tidal rivers, in the United States predate the founding of this country. These
				rights are based in the common law rule of the Public Trust Doctrine. First
				codified by the Roman Emperor Justinian around 500 AD as part of Roman civil
				law, the Public Trust Doctrine establishes the public's right to full use of
				the seashore as declared in the following quotation from Book II of the
				Institutes of Justinian:
"By the law of nature these things are common to all
				  mankind-the air, running water, the sea, and consequently the shores of the
				  sea. No one, therefore, is forbidden to approach the seashore, provided that he
				  respects habitations, monuments, and the buildings, which are not, like the
				  sea, subject only to the law of nations."
Influenced by Roman civil law, the tenets of public trust
				  were maintained through English Common Law and adopted by the original 13
				  colonies, each in their own form. The grants that form the basis of the titles
				  to private property in New Jersey never conveyed those public trust rights,
				  which were reserved to the Crown. Following the American Revolution, the royal
				  rights to tidal waterways and their shores were vested in the 13 new states,
				  then each subsequent state, and have remained a part of law and public policy
				  into the present time. Tidal waterways and their shores always were, and
				  remain, subject to and impressed with these public trust rights. See
Arnold v. Mundy
, 6
N.J.L.
1 (1821);
Borough of Neptune v. Borough of Avon-by-the-Sea
, 61
N.J.
296 (1972);
Hyland v. Borough of
				  Allenhurst
, 78
N.J.
190 (1978);
Matthews v.
				  Bay Head Improvement Association
, 95
N.J.
306 (1984);
Slocum v. Borough of Belmar
, 238
N.J.Super
.
				  179 (Law Div. 1989);
National Ass'n of Homebuilders v. State, Dept. of
				  Envt'l Protect.
, 64
F.Supp.2d
354 (D.N.J. 1999);
Raleigh Ave. Beach Ass'n v. Atlantis Beach Club, Inc.
, 185
N.J.
40 (2005). See also
Illinois Central R.R. v.
				  Illinois
, 146
U.S.
387 (1892);
Karam v.
				  NJDEP
, 308
N.J. Super
. 225, 240 (App. Div. 1998),
aff'd
, 157
N.J.
187 (1999),
cert.
				  denied
, 528
U.S.
814 (1999).
The Public Trust Doctrine serves as an extremely important
				  legal principle that helps to maintain public access to and use of tidal
				  waterways and their shores in New Jersey for the benefit of all the people.
				  Further, it establishes the right of the public to fully utilize these lands
				  and waters for a variety of public uses. While the original purpose of the
				  Public Trust Doctrine was to assure public access for navigation, commerce and
				  fishing, in the past two centuries, State and Federal courts recognized that
				  modern uses of tidal waterways and their shores are also protected by the
				  Public Trust Doctrine. See, for example,
Phillips Petroleum Co. v.
				  Mississippi
, 484
U.S.
469 (1988). In New Jersey, the
				  Public Trust Doctrine expressly recognizes and protects natural resources as
				  well as public recreational uses such as swimming, sunbathing, fishing,
				  surfing, sport diving, bird watching, walking and boating along the various
				  tidal waterways and their shores.
The Public Trust Doctrine is an example of common law
				  authority that is continually developing through individual court cases. The
				  first published court case in New Jersey to discuss the Public Trust Doctrine
				  was in 1821. See
Arnold v. Mundy
, 6
N.J.L.
1
				  (1821). Within the past three decades, several New Jersey court decisions have
				  clarified the public rights of access to and use of areas above the mean high
				  water line as needed for access to and use of tidal waterways and their shores,
				  under the Public Trust Doctrine. See, for example,
Arnold v.
				  Mundy
, 6
N.J.L.
1 (1821);
Borough of Neptune
				  v. Borough of Avon-by-the-Sea
, 61
N.J.
296 (1972);
Hyland v. Borough of Allenhurst
, 78
N.J.
190
				  (1978);
Matthews v. Bay Head Improvement Association
, 95
N.J.
306 (1984);
Slocum v. Borough of Belmar
,
				  238
N.J. Super
. 179 (Law Div. 1989);
National Ass'n of
				  Homebuilders v. State, Dept. of Envt'l Protect.
, 64
F.Supp.2d
354 (D.N.J. 1999);
Raleigh Ave. Beach Ass'n v. Atlantis Beach
				  Club, Inc.
, 185
N.J.
40 (2005).
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.
Development and other measures can adversely affect tidal
				  waterways and their shores as well as access to and use of those lands. One
				  example of adversely affecting tidal waterways and their shores would be the
				  development of a building that "shadows" a public beach. The proximity of the
				  building serves to diminish the quality of the experience of the beachgoer,
				  encouraging them to go elsewhere. Development that adversely affects or limits
				  public access to tidal waterways and their shores includes building over
				  traditional accessways, putting up threatening signs, eliminating public
				  parking, and physically blocking access with fences or equipment.
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
				  residents 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. The decision in
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.
Id
. at 325. "(. . . 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.") The New Jersey Supreme Court recognized that this
				  principle also applies to exclusively private beaches, in
Raleigh
				  Avenue Beach Association v. Atlantis Beach Club, Inc.
et al, 185
N.J.
40 (2005).