Eminent Domain and the Public Trust Doctrine

"In an era of economic policies that are producing an ever-larger group of the super-rich, those who are wealthier than the rest of us have a responsibility to manage their properties at least partly in the public interest." - Jonathan Weber, founder and editor of NewWest.Net
The New Jersey Supreme Court has reaffirmed its long standing support of the public trust doctrine guaranteeing the public access to the beach in Raleigh Avenue Beach Association v. Atlantic Beach Club, 185 NJ 40 (2005). Download the opinion. New Jersey was the first state to recognize and apply the public trust doctrine, which Justice Wallace described in his dissent:
"The public trust doctrine is the legal principal that the submerged lands and waters below mean highwater mark are owned by the state government in trust for public uses such as transportation and fishing. In 1821 the N.J. Supreme Court was the first in the United States to verify its application to the New World, in Arnold v. Mundy, 6 N.J.L. 1 (1821); in 1842 the U.S. Supreme Court reaffirmed that court's ruling in Martin v. Waddell, 41 U.S. 367 (1842).

Both came about because of conflicts over rights to oyster grounds in the Raritan River and Bay...The outcome was recognition of the state's ownership as trustee for the people of the state. Subsequently, the doctrine has played important roles in waterfront development, uses and management of wetlands, and public access to riverfronts and beaches." Raleigh Avenue Supra at page 63.

Matthews v. Bayhead Improvement Association , 95 N.J. 306 (1984) and Borough of Neptune City v. Borough of Avon-by-the-Sea , 61 N.J. 296 (1972) were two major cases whereby the Supreme Court applied the public trust doctrine to the public's rights to tidal lands for recreational uses - bathing, sunning, and shore activities. This was a major departure from the earlier cases which focused on preservation of natural resources for navigation and commerce.

Implicit in the more recent cases, Neptune City, Matthews, and now Raleigh Avenue Beach Association is the public's right to access to the tidal lands. Access is deemed to be both horizontal (along the waterfront) and vertical (across upland areas to reach the waterfront). The vertical access is necessary and implicit in the horizontal otherwise the right to use the beach between the high water line and the low water line is meaningless.

This brings us to dilemma of the upland owners, who must provide access: Is the imposition of access across the upland owner's property a "taking" for which compensation must be provided? And if the answer is yes, by whom?

Eminent domain regulatory takings were discussed in our blog of June 1, 2005 on the decision in Lingle v. Chevron.The standard for a taking to occur is "a denial of all beneficial use and enjoyment of the property." Presumably, the N.J. Department of Environmental Protection is imposing the access easement consistent with its regulatory functions and the decisions of the N.J. Supreme Court referenced above.

We do not think these access easements give rise to a taking by eminent domain for which the private upland owner would be owed compensation. The public clearly, and the N.J. courts have long held, has an interest in the tidelands and these lands are not owned by the adjacent upland owner. The public's right to access these lands can only come about where "reasonable access" is provided across the adjoining upland. To be sure, the upland owner is inconvenienced and will lose some privacy and exclusive right to the beach in front of their property. However, this does not rise to the level of a taking given the standard of "denial of all beneficial use and enjoyment of the property."

The opinion by Justice Zazzali in Bubis v. Kassin (A-44-04) decided August 10, 2005, discusses a related issue: The right of the adjoining owner to the ocean view and access, which were obstructed by the upland owner's construction of a sand berm with trees along the property line. The court concluded the berm was a fence and, due to its 14-foot height, violated an 1887 restrictive covenant which sought to preserve the view and the shore's recreational assets. Although this decision was premised on the definition of a fence and the 1887 restrictive covenant, the court could have invoked the public trust doctrine and extended it further to the public's right not only to access the beach, but to view the beach. Download the opinion.

There has been a long-held bias in New Jersey by beachfront owners against having the public access the beach and use the beach in proximity to their homes. This has resulted in a kind of class warfare. Beachfront is expensive and only the very wealthy can afford to buy beachfront homes. Yet, the public trust doctrine says that the tideland belongs to all of us, and the courts have now said the upland owners must provide reasonable access for the public to use the tideland.

In A Class War Runs Through It (New York Times, September 6, 2005) Johnathan Weber discusses Montana's 20-year old stream access law, which declares that the state's rivers and streams are public property up to the highwater mark.

"The law, among the strongest in the nation, has survived numerous legal challenges and become a source of pride for many Montanans, though it is fiercely opposed by property rights advocates."

It is not difficult to imagine that the State of New Jersey, in some future litigation, will extend the public trust doctrine to its freshwater lakes and rivers. ###

While we were only thinking of this issue as a "dune with a view," California is looking at things in reverse! Read the news release issued by the Pacific Legal Foundation below:

NEWS RELEASE, September 27, 2005


PLF Asks Appeals Court To Rein in California Coastal Commission Policy That Puts Constitutional Rights Out to Sea

San Luis Obispo, CA; September 27, 2005: Pacific Legal Foundation has asked a California Court of Appeal to overturn a decision by a San Luis Obispo judge who ruled that the "rights" of boaters, kayakers, and surfers to view the California coastline free from homes were more important than the property rights of Californians.

California property owner Dennis Schneider is the first person to challenge a new California Coastal Commission policy that prohibits the building or modification of homes along the California coast to "protect views" from the Pacific Ocean.

In 2000, Schneider was granted a permit from local officials to build a single-family home and barn on the 40 acres he owns in San Luis Obispo County. But the California Coastal Commission appealed the county's decision�to itself�and, not surprisingly, rejected the permit. Instead, the commission ordered Schneider to reduce the size of his home and move it into a ravine�even though geologic experts told the commission the ravine was unsafe due to the threat of erosion.

Mr. Schneider took the commission to court, but in a stunning ruling issued in June, a judge ruled the Coastal Commission's authority under the Coastal Act extends to "offshore views." Although the judge likened the bureaucratic hassles Mr. Schneider has faced during the permit process to "being nibbled to death by ducks," he nevertheless held: "It is clear to the Court that the beauty of a sunrise from a vantage point offshore is afforded the same protection as a sunset seen from land."

Pacific Legal Foundation, which has acted as a watchdog against the notoriously power-hungry Coastal Commission for three decades, immediately took up Mr. Schneider's case on appeal.

"The Coastal Commission is demanding that Californians sacrifice their constitutionally protected property rights to the esthetic preferences of random strangers," said Larry Salzman, an attorney with Pacific Legal Foundation who is representing Mr. Schneider.

"This is one of the commission's most hostile acts against Californians who want to live near the beach," Salzman said. "It's an unprecedented power grab that would allow the commission to reject any and all new building along the California coast."

"What's next�banning boating on the Pacific so that beachgoers have a pristine view of the sea?" he said.

About Pacific Legal Foundation
Founded in 1973, Pacific Legal Foundation is the nation's oldest and largest public interest legal organization dedicated to property rights protection, limited government, and individual rights. PLF has defended the rights of coastal property owners and worked to reform the California Coastal Commission for 30 years. PLF's landmark United States Supreme Court victory, Nollan v. California Coastal Commission, 483 U.S. 825, 837 (1987), radically reformed the commission when the Supreme Court ruled its permit process was an "out-and-out plan of extortion." PLF's Coastal Land Rights Project is dedicated exclusively to monitoring the commission and representing coastal landowners. ###