Jersey Shore Beach Access Battle Has Precedent Dating Back 2,000 Years

POINT PLEASANT BEACH, NJ — Who owns the beach? Who has the right to say who can be on it? The battle over beach access has been fought for decades in New Jersey.

The latest fights, between the state Department of Environmental Protection and Jenkinson’s Pavilion and the NJDEP and the Ocean Grove Camp Meeting Association, are just another chapter in the argument that goes back to ancient times.

In Ocean Grove, the Camp Meeting Association says its closure — for three hours on Sunday mornings — is a religious observance, and as such should supersede public access. The association contends it is being singled out for closing stair access for the summer Sundays — 15 Sundays, 45 hours out of the year — and says the beach is accessible at the north and south ends.

In Point Pleasant Beach, Jenkinson’s has chained and locked all of its beach access points. The company, which owns nearly all of the oceanfront beach in the borough, has not answered questions on the matter. It is facing a lawsuit claiming the company failed to warn people of the seriousness of the danger of rip currents and blaming Jenkinson’s for a man’s drowning in 2020.

The NJDEP has told both organizations that the closures violate their agreements with the state — agreements they made when they received permits for construction on their properties. The Camp Meeting Association received a violation notice on Sept. 14. On Tuesday, Jenkinson's Pavilion was warned its chains and locks are a violation and that it must remove them.

"The Permittee cannot limit vertical or horizontal public access to any dry sand area covered under this permit nor interfere with the public's right to free use of the dry sand for intermittent recreational purposes connected with the ocean and wet sand," the state warned in letters to both.

That right to public access is called the Public Trust Doctrine, which has its roots in Roman civil law and English Common Law, according to the NJDEP website.

“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,” the DEP website quotes the Roman civil law as saying. “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.”

When the 13 original colonies, including New Jersey, were created, the public trust doctrine was maintained.

“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,” the site says. After the American Revolution, those royal public access rights were turned over to the states.

The Public Trust Doctrine has been tested in court in New Jersey repeatedly, both against local governments and private entities, with much of the litigation connected to everyone’s favorite fee: beach tags.

Beach tags first were introduced as a way to limit who could get on the beach. The first town to use them, according to an NJ.com report, was Bradley Beach in 1929. The borough’s goal was to keep the beaches “seclusive for our residents if the property owners expect to make advantageous rentals in the future,” the report said, quoting Frank C. Borden Jr., who was mayor at the time.

While beach fees were codified into state law in 1955, allowing towns to charge to cover beach maintenance costs, they have been intertwined with beach access ever since, leading to much of the litigation.

In 1972, a state court ruled Avon-by-the-Sea in Monmouth County could not charge higher beach fees for non-residents, after Avon was sued by Neptune City, saying the public trust doctrine “dictates that the beach and the ocean waters must be open to all on equal terms and without preference.”

In 1978, the state sued Deal and forced it to stop blocking off part of the beach near the borough’s Deal Casino, which had been set aside for Deal property owners and residents only, again citing the Public Trust Doctrine, saying the cordoned-off restricted area was “illegal and discriminatory.”

In 1984, the private Bay Head Homeowners Association lost its bid to limit beach access when a judge ruled the nonprofit organization that maintains and operates the beaches in the borough could not limit access only to Bay Head residents and guests, after a Point Pleasant man sued the town.

Litigation also has put limits on beach fees, requiring they be set at “reasonable” levels for recovering costs. A 1989 ruling in a lawsuit against Belmar found its fees were unreasonable — the borough was charging $6 for daily badges at the time, well above the $2 charged in most towns — and discriminatory to the public at large.

Beach access fights have continued in recent years. Sea Bright beach clubs were forced to change their policies and expand beach available to the public to 150 feet from the 15 feet they had been allowing, a Red Bank Green report said.

A Monmouth University report from 2018 on the Public Trust Doctrine and how it has been applied in New Jersey does say “there are circumstances under which public access may be restricted or denied. These include restrictions that are necessary to protect public health and safety, and for which municipalities, through the exercise of their police powers, can adopt ordinances to address such circumstances.”

“For example, an ordinance could designate certain areas for bathing as distinct from those where surfing and fishing is allowed, or prevent swimming and other activities during rough seas, such as during or after a hurricane, when the lives of swimmers and surfers would be endangered,” the Monmouth report said.

The only restriction most towns have used during the recent rip current threats has been a ban on swimming. While Toms River and Seaside Heights threatened they would ticket people who insisted on going into the ocean despite being told to stay out, they did not close the beaches to access for those who wanted to walk or sit on them.