Bay Head is a narrow strip of land, and a beach runs across its entire length.
Bay Head has 76 separate parcels bordering the beach, and all but 6 are privately owned. These six are owned by the Bay Head Improvement Assoc., a nonprofit whose object is to promote the best interests of Bay Head Borough.
Association own roads that go up to the dry sand, perpendicular to the beach.
Also Association leased upper dry sand are from property owners.
Association supervises beach property during the summer, and hires lifeguards, beach cleaners, etc.
Beach police are stationed at the entrances to the beaches to ensure only Association members and guests enter during the daytime hours.
No one is stopped from occupying the terrain east of the high water mark. Public could gain access by coming from the Borough of Point Pleasant Beach to the north.
Borough of Point Pleasant sued Defendants, asserting that Ds prevented Point Pleasant inhabitants from gaining access to the Atlantic Ocean and the beachfront in Bay Head.
Borough of Point Pleasant stopped pursuing the case, and then the Public Advocate became the primary P.
Complaint amended to add more than 100 individuals who had interests in the properties on the oceanfront in Bay Head as defendants.
Procedural History
Supreme Court held for P on one issue, the public has a right to gain access through dry sand owned by a quasi-public body. However, Court dismissed claims against private landowners.
Issues
Does the public have a right to gain access to public trust tidal land through dry sand area not owned by a municipality but by a quasi-public body?
What about privately-owned upland sand?
Holding/Rule
The public has a right to gain access to public trust tidal land through dry sand owned by a quasi-public body.
What privately-owned upland sand is available for public access will depend on the circumstances. Factors to be considered include:
Location of the dry sand in relation to the foreshore,
Extent and availability of publicly owned upland sand area,
Nature and extent of public demand, and
Usage of upland sand by the owner.
Reasoning
Public trust doctrine says that ownership, dominion, and sovereignty over land flowed by tidal waters, which extend to the mean high water mark, is vested in the State in trust for the people.
Public can fish, swim, do other shore activities on this land/water.
In Avon, we held that the public trust applied to dry sand beach immediately landward of the high water mark.
In order to exercise these rights, the public must have access to municipally-owned dry sand areas as well as the foreshore.
Full enjoyment of the foreshore necessitates some use of the upper sand.
In Borough of Deal, we held that the public's right to use municipally-owned beaches was not dependent on the municipality's dedication of its beaches to use by the general public.
Avon and Deal was specifically limited to beaches owned by a municipality. We now address the extent of the public's interest in privately-owned dry sand beaches.
First, public may have a right to cross privately owned beaches to gain access to the foreshore.
Second, this interest may be of the same type as Avon an Deal- namely, the right to sunbathe and enjoy recreational activities.
Without some means of access the public right to use the foreshore would be meaningless. However, this does not mean the public has an unrestricted right to cross over any property bordering the common property. Public interest is satisfied so long as there is reasonable access to the sea.
The bather's right in the upland sands is not limited to passage. Reasonable enjoyment of the foreshore and the sea cannot be realized unless some enjoyment of the dry sand is also allowed.
People have to rest intermittently while they are swimming.
We see no reason why under the public trust doctrine right to use the upland dry sand area should be limited to municipally-owned property.
Public trust doctrine is not fixed or static, but can be molded to meet changing conditions and needs of the public.
What privately-owned upland sand is available will depend on the circumstances. Factors to be considered include:
Location of the dry sand in relation to the foreshore,
Extent and availability of publicly owned upland sand area,
Nature and extent of public demand, and
Usage of upland sand by the owner.
While the public's rights in private beaches are not co-extensive with the rights enjoyed in municipal beaches, private landowners may not in all instances prevent the public from exercising its rights under the public trust doctrine.
Beaches of Bay Head
D owns the dry sand area at the foot of seven public streets. Also owns the fee in six other upland sand properties, and holds leases to 42 tracts of upland sand area.
Question is whether this land should be open to the public to satisfy the public's rights under the public trust doctrine and whether the Association can restrict membership to Bay Head residents and thereby preclude public use of the dry sand area.
The Association's activities parallel those of a municipality: it is a quasi-public owner.
As such, membership in the Association must be open to the public at large.
However, the privately-owned beachfront property does not need to be opened to the public because there are enough ways for the public to access the beaches using the quasi-public property of the Association.
If the situation changes (i.e., through the revocation of the leases to the Association), access across private lands might become necessary.
