A Red-Letter Day for Beach Access

One might not think that February 2, a date in the dead of winter, would have anything to do with access to New Jersey’s beaches.  But on this date in 1984, the Supreme Court decided Matthews v. Bay Head Improvement Ass’n, 95 N.J. 306 (1984).  The Court’s 6-0 opinion, written by Justice Schreiber, discussed the public trust doctrine, which “acknowledges that the 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.”  The question in Matthews was “whether, ancillary to the public’s right to enjoy the tidal lands, the public has a right to gain access through and to use the dry sand area not owned by a municipality but by a quasi-public body.”  The Court answered in the affirmative.

The parties had cross-moved for summary judgment at the trial level, and the motion of the defendants was granted.  The Appellate Division affirmed by a 2-1 vote.  Plaintiffs appealed as of right, but also filed a petition for certification, which the Court granted.

In discussing the public trust doctrine, Justice Schreiber, who was quite the judicial historian, harked back to the Roman emperor Justinian, and to an early New Jersey decision, Arnold v. Mundy, 6 N.J.L. 1 (Sup. 1821).  But the most relevant precedent was more recent.  Borough of Neptune City v. Borough of Avon-by-the-Sea, 61 N.J. 296 (1972), “held that the public trust applied to the municipally-owned dry sand beach immediately landward of the high water mark.”  Another key case was Van Ness v. Borough of Deal, 78 N.J. 174 (1978).  That case said that the public’s right to use municipally-owned beaches was not dependent on municipal dedication of the beach for public use.

But those two cases dealt with public beaches.  Bay Head’s beach was not owned by the municipality.

Instead, the beach area was owned by the defendants, including the Association and individual property owners who owned the land that abuts the beach.  The Association managed the beach itself.  During the summer beach season, from the hours of 10 A.M.-5:30 P.M., only Association members could access the beach, and only Bay Head residents and their guests could become Association members.  Local hotels, motels, and inns could get beach badges for their guests.  The Association stationed “beach police” at the entrances to the beaches (at the end of public streets) to ensure that no non-members of the Association set foot on the beach, other than fishermen, who had limited access.  Off-season, and in-season from 5:30 P.M.-10 A.M., the public could use the beach.

After citing various authorities, including a dissenting opinion in an 1821 English case, and noting that beaches are “a unique resource and are irreplaceable,” Justice Schreiber concluded that there was no reason to limit the public trust doctrine to municipally-owned property.  Though a  private owner’s interest in the upland sand area differed from that of a municipality, “where use of dry sand is essential or reasonably necessary for enjoyment of the ocean,” the public trust doctrine applied just as it did to municipally-owned beaches.  The doctrine was not “fixed or static,” but was to be “molded and extended to meet changing conditions and the needs of the public it was created to benefit.”

Justice Schreiber noted the “increasing demand for our State’s beaches,” and applied the public trust doctrine to help meet that demand.  The Court ruled that the Association’s membership and its beach must be open to the public.  The Court did not go so far as to say that “all the privately-owned beachfront property likewise must be opened to the public,” as the Public Advocate had urged.

At the time, this decision was the subject of some controversy.  In the 33 years since, it has become a part of the landscape.