Courts rule against oceanfront property owners, say public owns beach created in replenishment projects

This aerial image from March, 2010, shows the shrinking beach in Harvey Cedars on Long Beach Island.

By RICHARD DEGENER Press of A.C.Staff Writer | Thur, Sept. 30, 2010

The New Jersey Supreme Court’s recent ruling that additional beach created by government-funded projects is owned by the public, and not oceanfront property owners, has implications in many shore towns.

The unanimous ruling Sept. 21 by the state’s highest court, stemming from a case in Long Branch, Monmouth County, closely followed a ruling by the U.S. Supreme Court earlier this year.

Cape May City Solicitor Tony Monzo has been tracking the case partly because the city has privately owned beaches and relies on beach replenishment projects funded mostly by the federal and state governments to maintain the strand.

“This could impact beach replenishment projects on the coast, especially in Cape May where we have one coming up,” Monzo said.

The U.S. Army Corps of Engineers and the state Department of Environmental Protection fund most of the costs for such projects.

The local share of the upcoming project, which includes pumping 320,000 cubic yards of sand from The Cove Beach in Cape May to Saint Peter’s Beach in Cape May Point, will only be 8.75 percent of overall costs expected to exceed $5 million. Bids for the project will be opened Oct. 7.

The federal and state governments, however, typically expect local governments to either buy privately owned beaches or get easements to them. But the value of the beaches and the easements could be higher if the landowner takes ownership of the new sand being pumped in.

Monzo said there is still some privately owned beaches in the area due to get sand this winter on the west side of town. There also are several privately owned beaches in the center of town, for which the city has easements.

A bigger issue, according to Monzo, could be the Beach Club of Cape May on the far eastern side of town. The city has attempted to negotiate easements in the past with the private beach club, but without success.

The upcoming project does not add sand at the club, but previous replenishment projects at the U.S. Coast Guard base increased the size of that beach.

The improved area becomes a public beach, Monzo said. The court distinguished between the natural accumulation of sand and a sudden increase due to beach replenishment.

The court ruled that newly placed sand falls within the Public Trust Doctrine, an ancient document that gives the public access to tidal areas.

The ruling also could allow greater public access.

Gordon N. Litwin, an attorney representing the American Littoral Society, which intervened in the case, said replenishment creates a beach open to the public in front of privately owned beaches.

“The sand added is Public Trust land. It increases the public beach at private beaches. It probably affects 127 miles of coastline between Sandy Hook and Cape May,” Litwin said.

The key to such cases is the mean high water mark, which is where the ocean ends at high tide and the dry sand begins. The line is based on an average high tide during the previous 18.6 years.

In Long Branch, Boardwalk merchants Jui Yung Liu, who died in 2002, and his wife, Elizabeth Liu, lost their property during a redevelopment project in 2001. Eminent domain was used to take the property and the Lius were paid $900,000. They sought $2,855,000.

They argued in court that it was not just-compensation, mainly because the value did not reflect another 225-foot-wide section of beach added by a government replenishment project valued at $175,000.

Their 1977 deed said the property, which included restaurants and other businesses, went to the mean high water mark. The lower courts ruled they could not get an enhanced value because public agencies spent public funds to increase the size of the beach.

The N.J. high court, in a unanimous ruling last week, declined to add the value of the replenishment. The U.S. Supreme Court made a similar ruling in a Florida case in June.

“The Florida case had very similar underpinnings,” Litwin said.

Seeking more information, Litwin said the justices asked the American Littoral Society, Public Advocate of New Jersey, and state Attorney General’s Office to file briefs in the case.

The case is not expected to have an impact on private beach clubs, including several in the Diamond Beach section of Lower Township, which do not get beach replenishment. They have faced their own Public Trust Doctrine issues in the past.

“Any place you have a nourished beach, that’s land subject to this case,” Litwin said.

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