A discussion paper prepared as part of a series of focus
groups on the topic of the
scheduled
for January 2003
Prepared by the Urban Harbors
Institute
of the University of Massachusetts
Boston
under contract with the New Jersey Coastal Zone Management Program
Public access is specifically identified as one of the key
priorities of the Coastal Zone Management Act (CZMA) of 1972. In its
Declaration of Policy, it states:
“The Congress
finds and declares that it is the national policy…to encourage and assist the
states to exercise effectively their responsibilities in the coastal zone
through the development and implementation of management programs to achieve
wise use of the land and water resources of the coastal zone, giving full
consideration to ecological, cultural, historic, and esthetic values as well as
the needs for compatible economic development, which programs should at least provide for -- public access to the coasts for recreation
purposes” (§1452. Section 303(2)(E)).
More importantly, the Act
enables states to develop their own coastal zone management programs and to
receive federal funding with which to implement them. There are a number of
criteria that such plans must include before they can receive federal approval.
One of these is:
“The management program
includes each of the following required program elements: A definition of the
term "beach" and a planning process for the protection of, and access to, public beaches and other public
coastal areas of environmental, recreational, historical, esthetic,
ecological, or cultural value” (§1455. Section 306 (d)(2)(G)).
To comply with this, the New Jersey Coastal Zone Management
Program (1980) has as one of its “Basic Coastal Policies” the requirement that it should:
“Promote public
access to the waterfront through linear walkways and at least one waterfront
park in each waterfront municipality”.
The Origins of the Public Trust Doctrine
The right of the public to access the coast or waterfront is largely
based on the principle of the public trust doctrine. This first appeared in
Roman civil law around 550 AD, when it was decreed that “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”. Medieval English common law incorporated
the same idea when, while recognizing that most lands were owned by a person or
entity, it was also recognized that the ownership of “tidelands” (i.e. those
lands that lie below the mean high tide line) resided with the King. In this
way, under common law the rights of the public were inalienable and could not
be transferred from the crown to private ownership. This is the basis of the
public trust doctrine.
This same concept was
incorporated into the American legal system so that the tidelands were held in
public trust for “fishing, fowling and navigation”. Traditionally, the physical
jurisdiction of public trust lands includes all lands below the mean high tide line and out to 3
nautical miles offshore. These are sometimes referred to as “flowed” lands.
These lands are held in trust by the state and it is therefore the state’s duty
to protect the public’s right to use these lands. Over time, the doctrine has
evolved through US case law and at present, the physical jurisdictional
boundaries to which it can be applied vary from state to state. In some states,
the landward boundary is the traditional mean high tide line, while others only
recognize lands below the mean low tide line. Particularly where the coast is
beach lined, other states have extended the boundaries to include the area
landward of the mean high tide line up to the vegetation line. This is
sometimes called the “dry-sand” beach. The extension of the boundaries to
include the dry-sand areas is clearly of benefit to the public as it increases
the beach area to which it has access. In New Jersey, the courts have ruled
that “where use of dry sand is essential or reasonably necessary for the
enjoyment of the ocean, the doctrine warrants the public’s use of the upland
dry sand area subject to an accommodation of the interests of the owner” (Matthews v. Bay Head Improvement Association,
95 N.J.306, 312, 471 A.2d 355 [1984]). However, it is
difficult to determine what is “reasonably necessary”. Further confusion arises
from the fact that, due to the tidal cycle, the waterline cannot easily be used
to determine where a boundary lies. In May 2001, the New Jersey Attorney
General warned five homeowner associations with private beaches that they had to
allow public access to 10 feet of dry sand. This may represent a practical
solution; the public has the right of access to 10 feet of sand above where the
sea is wetting the sand, regardless of where the tide is in its cycle.
When the coast is mentioned in New Jersey, what most readily comes to mind is the Atlantic coastline from Monmouth County south to Cape May. However, the public trust doctrine specifically addresses lands that are, or historically have been, below the mean high tide line and these extend much further than this and include the back bays, Delaware Bay and the urban northeast coast. Furthermore, as tides can reach far up rivers and streams, these areas are also covered by the public trust doctrine and include the Delaware, Passaic, Raritan and Hackensack rivers up to the head of the tide, as well as all more minor rivers that are affected by the tides. Therefore the physical boundaries of the public trust doctrine extend far beyond what might be traditionally thought of as the New Jersey coast. Basically, wherever land is, or has been below the mean high tide line, it is public trust land and as such, the public’s right to use these resources is protected by the doctrine.
In
much the same way as the physical boundaries vary, so too do the definitions of
the activities that the public have the right to engage in. What was originally
the right simply to “fish, fowl or navigate” has successfully been interpreted
to mean more general uses of the natural resources held in trust. For example,
in 1821 the New Jersey Supreme Court ruled that the doctrine ensured the
public’s right to use the tidelands “for the purposes of passing and repassing,
navigation, fishing, fowling, sustenance and all other uses of the water and its products” (Arnold v Mundy. 6 N.J.L. 1, 12 [1821]). The use of the public trust
lands also includes less direct uses, such as right to enjoy the aesthetic
beauty of the waterfront and bird watching.
Public Access and the Public Trust Doctrine in New
Jersey
The
public trust doctrine protects the rights of the people to engage in certain
activities on the waterfront In 1984, it was ruled that “[t]he public’s
right to use the tidal lands and water encompasses navigation, fishing and other recreational uses, including bathing,
swimming and other shore activities” (Matthews
v. Bay Head Improvement Association, 95 N.J.306, 312, 471 A.2d 355 [1984]).
In order to do so, they must clearly be able to access these areas. As the
waterfront is held in trust by the state, it can be argued that the state must
therefore also ensure that there are sufficient public access points so that
the people can enjoy their rights.
The demand for waterfront property is high and much of this land is under private ownership. This can lead to conflict between property owners and the general public. When purchasing a waterfront parcel of land, the owner will have property rights that extend, most commonly, to the mean high tide line. The public trust doctrine ensures that the land seaward of this line remains the property of the public but is held in trust by the state. Therefore, the public has right of access along the waterfront below the mean high tide line. This is often called “linear” or “horizontal” access. However, property owners frequently do not want the public to use what they see as their private waterfront. If the property lies on filled land that has previously been below the historic mean high tide line, then the public may be entitled access to all of the property. The situation can be further exacerbated by the fact that, it can be argued, the state should also ensure sufficient access points between nearby public right-of-ways and the waterfront. This is often termed “perpendicular” or “vertical” access.
Conflicts often occur when it comes to the public accessing property that is under private ownership, especially when such access is enforced by the state. Some property owners feel that a state rule that forces them to allow the public access across their property is unconstitutional as it contravenes the Fifth Amendment. The final phrase of which states:
“…..nor shall private property be taken for public use,
without just compensation”.
Therefore, if
private owners are forced to grant access to the public, then they should
receive compensation from the government. If they receive no compensation than
this represents what is called a “taking”, as defined by the Constitution.
However, proponents of the public trust doctrine argue that those lands that lie below the
historic high tide line are owned by the public but held in trust by the state
for the benefit of the people. Therefore the waterfront property owner has no
rights to such tidelands. This interpretation has been upheld by New Jersey
courts, an example of which occurred regarding the Hudson River waterfront. Due to state rules, all developers who received permits to develop
the waterfront along the Hudson River were required to construct and maintain a
30-foot wide, public waterfront walkway. The National Association of Home Builders
and its New Jersey Association claimed that the requirement, without due
compensation, amounted to a “taking”. In August 1999, Federal District Judge
Garrett E. Brown Jr. ruled that almost 90 percent of the land on which the
walkway was to be constructed was filled land and had previously been below the
mean high tide line of the Hudson River. Therefore, the land was public trust
land and the state was within its police powers to require the walkway
construction and maintenance (National Association of Home
Builders of the United States and New Jersey Builders Association v. State of New Jersey
Department of Environmental Protection and Robert C. Shinn, Jr., Commissioner
of the Department of Environmental Protection. No. CIV.A.98 2514 (GEB). [1999]).
Another
court decision that had major ramifications on public access to the waterfront
in New Jersey was Matthews v. Bay Head Improvement Association (Matthews v. Bay Head Improvement
Association, 95 N.J. 306 [1984]). Prior to this ruling, in New Jersey the
landward physical boundary of public trust lands was understood to be the mean
high tide line. This was similar to the situation in many other states. However
in February 1984, in a dispute about public access to a beach, the Supreme
Court of New Jersey ruled that the landward boundary of public trust lands
included the “dry-sand” beach. The court stated that the decision was not based
on jurisdiction theories, such as prescriptive easements or customary law, but
rather on the fact that in reality, the public must be able to use the dry-sand
area of a beach in order to enjoy the wet-sand area. In the ruling, the court
stated:
"[A]rchaic judicial responses are not an answer
to a modern social problem. Rather, we perceive the public trust doctrine not
to be fixed or static, but one to be molded and extended to meet changing
conditions and needs of the public it was created to benefit”.
This
and subsequent rulings have concluded that the public has the right of access
not only to the wet-beach, but also to the dry-beach areas, even if they are
privately owned. However, this raises a further public access issue, that of
perpendicular access. If public access points, running between nearby public
right-of-ways and the waterfront are too widely spaced, then the intervening
stretches of coastline become de facto
private beaches, due to public access being generally impractical. Such areas
become the private domain of the nearby waterfront property owners. To prevent
this, it would be necessary for the state to establish a greater number
of perpendicular access points so that the public can reach the more isolated
public trust lands. The
New Jersey Coastal Zone Management Rules state that access must be designed to encourage the public to take advantage
of the waterfront.
Although
minimizing the physical distance between perpendicular access points can go a
long way to ensuring that stretches of the waterfront are not inaccessible to
the public, there are a number of other ways that access can be restricted. A
report entitled “The State of the Coast” by the American Littoral Society,
Clean Ocean Action and Save Barnegat Bay provides a good example. Along a
1.3-mile stretch of beach in Sea Bright in Monmouth County there are three
ladders that lead over the seawall and onto the beach. These provide ample
perpendicular access to the waterfront, so that no areas of the beach are so
isolated from an access point that the public will not generally reach them.
However, the public’s access to the beach is limited in another way; there are
only parking spaces for approximately six cars and there is no parking
available on the side streets. In this case, while the physical access to the
waterfront is provided, the lack of other facilities means that this access is
of little use to the general public and clearly does not encourage the public
to use the waterfront. The New Jersey Coastal Zone Management Rules state:
“Public access must be
clearly marked, provide parking where appropriate, be designed to encourage the
public to take advantage of the waterfront setting and must be barrier free
where practicable” (7:7E-8.11(b)(3)); and,
“Public access, including
parking where appropriate, shall be provided to publicly funded shore
protection structures and to waterfronts created by public projects unless such
access would create a safety hazard to the user” (7:7E-8.11(b)(6)).
A lack of support
infrastructure such as parking spaces, restrooms, concession stands etc. means
that those members of the public who do not live or rent property in the
vicinity are at a disadvantage when it comes to enjoying their right to access
those stretches of the waterfront. At present, there is limited information
available to the public regarding public access points, parking availability,
facilities and any fees that might be required. This lack of information can
make planning a trip to the beach more difficult and therefore discourage such
behavior.
Waterfront Access Fees
The
public trust doctrine can also be applied to prohibit discrimination against
particular segments of the public from accessing the shoreline. As discussed
above, such discrimination can manifest itself simply as a lack of facilities.
Especially at beach locations, a lack of parking spaces can mean that only
those who can walk to the beach have real access, and those who do not live in
the vicinity are effectively excluded.
Another
from of discrimination that has emerged in New Jersey courts is the charging of
fees to access beaches. It is common practice for local municipalities along the
New Jersey coast to charge access fees for use of their beaches. These are
justified to cover the costs of supplying lifeguards, trash collection etc..
However, in the past it was common that non-residents were charged
significantly more than residents. An article in the Philadelphia Inquirer in
June 2002 addresses this issue. It states that while some towns “put out a
giant welcome mat to the world” by providing ample parking and restrooms etc.
while charging minimal access fees, other towns provide almost no
infrastructure yet charge high daily fees. The higher fees not only
discriminate against non-residents who might only be using the beach for a few
days but it also discriminates against lower income people. The use of the
beach becomes a luxury that can only be enjoyed by the wealthy. This hardly
lives up to the philosophy that is expounded by the public trust doctrine.
At
present, regulation allows municipalities to charge non-residents a higher fee
for access to marinas and other facilities from which the public can
launch a boat, as stated in the Coastal Zone Management Rules:
“A fee for access,
including parking where appropriate, to or use of publicly owned waterfront
facilities shall be no greater than that which is required to operate and maintain
the facility and must not discriminate between residents and non-residents
except that municipalities may set a fee schedule that charges up to twice as
much to non-residents for use of marinas and boat launching facilities for
which local funding provided 50 percent or more of the costs”
(7:7E-8.11(b)(4)).
However,
this does not support differential fees that specifically target non-residents
for higher fees to access a beach. The New Jersey Supreme Court has ruled that
it is unconstitutional for municipalities to charge non-residents a higher
beach access fee than residents (Hyland v
Borough of Allenhurst, 78 N.J. 190 [1978]). Access to the shoreline was
deemed to be a right that was equally held by everyone and not preferentially
by residents. However, discrimination against non-residents can be achieved in
practice by charging a high cost for a daily pass relative to a seasonal pass.
For many people, high access fees or limited facilities are as much of a
hindrance to public access as the lack of a physical access points.
Visual Access
As
previously discussed, the public trust doctrine has been legally interpreted to
support many, less tangible forms of public access, such as the right to enjoy
the aesthetic beauty of the waterfront. The popularity of waterfronts as
residential areas and vacation spots attests to the fact that, in general, the
public finds such areas to be aesthetically pleasing. There are probably many
reasons why we have such an affinity for such areas, but waterfronts provide
the public with a place where there is a largely unrestricted view and where
they feel that they can relax. Physical access to the waterfront is the ideal
situation, but for many, visual access is the next best thing. While visual
access to the water is not necessarily high on the agenda of all state
governments, such access is as important as the physical access to these areas.
And to those who, for whatever reasons, cannot physically access the
waterfront, the ability to enjoy the view of the water is of prime importance.
Another
aspect of visual access is the view of the waterfront from the water. For those who use the water, the view of the
shoreline is an important aspect of their enjoyment. Especially in urban areas,
the waterfront can often represent a cultural resource that provides a snapshot
of how the waterfront used to be. These cultural landscapes are a valuable
resource and maintaining them for the public’s visual enjoyment is as much a
part of the public trust doctrine as their right to physical access such areas.
The
importance of visual access is illustrated by the fact that the first of the
New Jersey Coastal Zone Management Rules that addresses public access states:
“Public
access to the waterfront is the ability of all members of the community at large
to pass physically and visually to, from and along the ocean shore and other
waterfronts” (7:7E-8.11(a)).
Environmental Protection
The
public trust doctrine and its applicability to public access is increasingly
being used as a tool to address coastal pollution. Traditionally, the public
trust doctrine means that the state holds in trust the right for the public to
“fish, fowl and navigate” in the flowed lands. More recently, this has been
interpreted to mean the trust is, “to preserve and continually assure the
public’s ability to fully use and enjoy public trust lands, waters and
resources for certain public uses” (Idaho
Forest Industries, Inc. v. Hayden Lake Watershed Improvement District, 733
P.2d 733, Idaho 512 [1987]). Therefore, if these resources are damaged through
the actions of another “party”, then this is a breach of the doctrine.
Furthermore, if the state, as the trustee, does not ensure that the other
“party” implement remediation measures then the state itself has failed in its
duties as a trustee. The ramifications of this use of the public trust doctrine
are enormous. For example the Hudson-Raritan estuary is considered to be public
trust lands and, as such, the governments of New York and New Jersey hold them
in trust for the public and are therefore liable for the state of this estuary.
It is argued that it is their duty to ensure that pollution from the numerous
industries on this water body is cleaned up so that it does not impinge upon
the public’s right to access and enjoy the resources. If either state fails to
fulfil its duty then it is legally liable. Largely, such arguments have yet to
be supported by case law. However, there is potential for these arguments to be
upheld and, as such, the public trust doctrine may prove to be an extremely
powerful tool for environmental advocacy groups and the general public.
The
requirement that property owners provide a linear open space along the
waterfront in the form of a walkway can also help to reduce the amount of
pollution entering a waterway. Such a walkway acts as a buffer between the
source of pollution and the water and can therefore reduce the amount of
non-point source pollution. This may help to preserve the natural resources
that the public trust doctrine protects. Similarly, the trees that are planted
on such walkways provide shade and a valuable habitat for animals and plants.
Therefore the public trust doctrine may be used as a tool to ensure that
remediation efforts can be enforced and can also, through public access requirement,
reduce the amount of non-point source pollution entering waterways.
Public Access in Federal and State Programs
As discussed above, the issue of public access is a fundamental
priority of the Federal Coastal Zone Management Act (CZMA) that states:
“The Congress finds and
declares that it is the national policy…to encourage and assist the states to
exercise effectively their responsibilities in the coastal zone through the
development and implementation of management programs to achieve wise use of the
land and water resources of the coastal zone, giving full consideration to
ecological, cultural, historic, and esthetic values as well as the needs for
compatible economic development, which programs should at least provide for -- public access to the coasts for recreation
purposes” (§1452. Section 303(2)(E));
The CZMA enabled states to
develop their own coastal zone management programs and to receive federal
funding with which to implement them. There are a number of criteria that such
plans have to include before they can receive federal approval. One of these
is:
“The management program
includes each of the following required program elements: A definition of the
term "beach" and a planning process for the protection of, and access to, public beaches and other public
coastal areas of environmental, recreational, historical, esthetic,
ecological, or cultural value” (§1455. Section 306 (d)(2)(G)).
When it was approved in 1980, the New Jersey Coastal Zone
Management Program stated that a “Basic Coastal Policy” was to:
“Promote public
access to the waterfront through linear walkways and at least one waterfront
park in each waterfront municipality.”
Over time, changes in the Coastal Zone Management Rules have led
to changes in the “Basic Coastal Policies” so that the one pertaining to public
access now reads (changes are in bold):
“Promote public
access to the waterfront through protection
and creation of meaningful access points and linear walkways and at least
one waterfront park in each waterfront municipality.”
And that this should be achieved by enhancing the value of the
waterfront to the surrounding communities by:
· discouraging new highways and high-rise
buildings adjacent to the waterfront;
· providing pedestrian bridges over existing
highways;
· publicly purchasing waterfront properties;
and,
· obtaining easements for public access over
other properties.
Section 309 Assessments and Strategies
Section 309 of the CZMA is the Coastal Zone Enhancement Program.
It is intended to encourage each state to make improvements to their state
coastal zone management program. These improvements must focus on one of nine
key issues that are regarded as being of national significance -- aquaculture,
coastal hazards, coastal wetlands, cumulative and secondary impacts, energy and
government facility siting, marine debris, ocean resources, special area
management planning, and public access.
As part of this grant program, each coastal state must carry out a periodic
assessment (309 Assessment). These provide a comprehensive review of a state
coastal zone management program and help to identify specific needs or
problems, and assess the general effectiveness of the program. This occurs with
public involvement and comment, which means that it can be a contentious
process. It is then possible to identify methods to improve the program and
implement specific activities. These activities may include: developing or
revising state or local statutes, regulations or ordinances that relate to
public access; developing or improving state processes related to accessing
funding sources and acquisition and maintenance programs; improving
coordination between agencies and other stakeholder groups; and developing
studies, inventories and outreach material. Periodically, each state is
required to develop a 5-year strategy (309 Strategy) that identifies the
priority issues and plans to improve the way that the program addresses the
nine key issues.
The most recent review of the New Jersey Coastal Zone Management
Plan was completed in July 2001. Prior to this, assessments had occurred in
1992 and 1997. In both of the previous assessments, the need to address public
access issues was judged as being of “medium” importance. In the latest
assessment it has been elevated to “high”.
Section 309 assessments identify four programmatic objectives
relating to public access:
·
improve public access
through regulatory, statutory, and legal systems;
·
acquire, improve, and
maintain public access sites to meet current and future demand through the use
of innovative funding and acquisition techniques;
·
develop or enhance a
Coastal Public Access Management Plan, which takes into account the provision
of public access to all users of coastal areas of recreational, historical,
aesthetic, ecological, and cultural value; and,
· minimize potential adverse impacts of public access on coastal
resources and private property rights through appropriate protection measures.
In the 2001
assessment and strategy, it is clear that due to limited staff and resources,
the Coastal Zone Management Program (CZMP) has had limited success in
addressing the issue of public access. After the 1997 assessment, it was noted
that while much of New Jersey’s ocean frontage is open to the public, there
exists a very incomplete understanding of the access resources. In 2001, the
CZMP acknowledged that this was still the case. This knowledge gap makes it
difficult to assess the current state of public access, or the location or type
of access problems that exist. The CZMP also acknowledges that past coastal
permits will have to be reviewed in order to ensure that any public access
enhancements that might have been required were actually implemented. In order
to address these problems a database is being compiled, a new method for
tracking public access stipulations in permits is being developed and the
Department is considering developing outreach materials to disseminate the
information. Furthermore, in order to enhance inter-agency cooperation, new
Memoranda of Understanding (MOUs) will have to drawn up.
Once these efforts have been successful, it is felt that, as the
CZMP often relies on permit conditions to address compliance with public access
rules, long-term inspections and enforcement of these conditions is critical if
the state is to meet its programmatic objectives.
In the meantime, without a database it is difficult to assess
where the most serious public access issues exist and, therefore how to address
them. In such a situation, the stakeholders who are either directly or
indirectly affected by these issues provide an equally valuable source of
information. The current assessment focuses on what can be done in the future
to better deal with these issues and this will require meaningful participation
of all stakeholders and for government to work closely with local communities.
What are the Issues that need to be
Addressed?
The series of focus groups that are scheduled for January are
aimed at initiating the process of stakeholder participation. In this way, they
should establish meaningful dialog and help the CZMP focus on what are
generally felt to be the most pressing public access issues while the
aforementioned database, MOUs and permit tracking systems are developed.
The 309 assessment and public comment associated with it, as well
as a series of interviews conducted by the Urban Harbors Institute, have
identified a number of public access issue and problems that exist in New
Jersey. However, this list is unlikely to exhaustive and these issues may not
be relevant in certain areas or as significant in one area as compared with
another. Which issues should or should not be prioritized is one of the
outcomes for which this series of focus groups have been planned. When the
priority issues are identified, then it will be possible to identify the
methods for addressing them.
Generally, the public access issues that arise in urban waterfront
areas and those that occur on coastline that have beaches differ to some
degree. Generally, issues that have been raised include:
General Issues
·
Coastal Zone Management Program and its
role in public access –
Should the CZMP take a more active / public role in promoting public access? And if so, how?
·
Stakeholder participation – Does the CZMP involve stakeholders
sufficiently in the decision making process? If not, how could things be
improved?
·
Building on success – The Hudson River Walkway is often cited
as an example of where public access in an urban waterfront has been
successfully achieved through enforcement of the Coastal Zone Management Rules.
If this is so, could similar rules be developed for other areas such as the
Raritan, Delaware, and Hackensack Rivers? Would the public support such an
approach?
·
Using public access as a tool –
Would there be support for using public access as a tool to achieve other
goals, such as the use of open space set backs to increase value of properties
along waterfront? Or for public access requirements to result in non-point
source pollution abatement? How effective is the provision of walkways etc. at
reducing non-point source pollution?
·
Lack of information and outreach material – The CZMP acknowledges that it is
lacking information on public access resources. This makes it difficult to
pinpoint where there may be problems. They are implementing a program to
rectify this situation, however this will take time. Therefore, what is the
best way to identify and address public access issues while the information is
being gathered?
·
Inability to track permit requirements – The CZMP acknowledges that it has had
little success in tracking and enforcing the public access requirements that
have been part of the CAFRA permitting process. The ability to do so is being
developed and CZMP sees its role as largely enforcing such requirements in the
future. Will this approach be successful in increasing public access to the
waterfront?
·
Boat launch facilities – Are there sufficient boat ramp and boat
launch facilities that are open to the public? The latest 309 assessment lists
58 public boat ramps and another 111 that, although private, are accessible to the
public. Some of the public feedback on the 309 Assessment seems to suggest that
boat launch facilities are sufficient. However, this may not hold true for all
areas of the state or in the future.
·
Problems with land acquisition programs – Limited coordination between land
acquisition programs means that opportunities to acquire some properties are
likely to be missed. How can the system be improved?
·
Conflicting use of the waterfront – As use of the waterfront is increasing, so too are
the conflicts between different users. What is the best way to address this
problem and have approaches such as the establishment of Personal Watercraft
exclusion zones been successful in preventing conflict between user groups? The
subject of conflicting use of the waterfront is a difficult issue as some
people may feel that, for example, ports and waterfront industrial uses
conflict with the public’s right to use the waterfront. However, other sections
of the population clearly enjoy the industrial activity and derive pleasure
from simply watching what is going on. What is important is that there are
multiple uses of the resources and that where one activity predominates,
efforts are made to ensure that others can also enjoy the resources. For
example, while an area may be largely involved in port activities, the
provision of viewing points would allow the public to watch the activities
while keeping then safe from potential hazards. Zoning and the promotion of
water-dependent uses of the waterfront can also achieve the multiple use of
resources.
Issues Specific to Beach Coastlines
·
Beach nourishment without sufficient
access – While the
Coastal Zone Management rules stipulate that where shore protection is publicly
funded or where waterfronts are created using public funds then, as long as it
is safe, the public access should be made available to these areas. This is
often felt not to be the case. It has been suggested that when tax dollar
funded beach nourishment is implemented as a storm damage prevention measure,
public access requirements are often overlooked. Is there a conflict between
those that view beach nourishment simply as a storm protection practice and
those that view it as a means to increase coastal recreational resources?
·
Beach nourishment programs and increased
access – It has been
suggested that a number of municipalities have refused to participate in the
beach nourishment program due to fear that this would lead to greater public
use of the municipal beaches due to the requirements to enhance public access. Is
this an issue?
·
Storm protection measures and visual
access – Some storm
damage protection measures decrease the visual access or aesthetic beauty of
the waterfront and this can cause conflict. For example, the creation of dunes
can be an effective shoreline protection method. However, for those who own
property behind where the dunes are being created, this will impair their
visual access to the tidelands. Is this a common issue and how could it be
addressed?
·
Levying beach access fees – The levying of beach access fees may
discourage lower income people from enjoying the beach. Municipalities need to
be able to raise funds to provide the services associated with a beach.
However, as access fees increase, the use of the beach becomes more and more of
a luxury that many people may not be able to afford. How should this be
addressed?
·
Daily beach access fees – It is claimed that high rates for daily
beach access passes, as opposed to seasonal passes, discourage non-residents
from utilizing beaches. For example, in Spring Lake it is reported that a
weekday pass costs $8 per person while a season pass that entitles the buyer to
unlimited beach visits between Memorial Day and Labor Day costs only $45. While
beach access is to be encouraged, how are municipalities to ensure that their
beaches do not become so crowded that it drives out the local users?
·
Lack of support infrastructure – The lack of parking spaces or other
support facilities puts non-residents at a disadvantage when it comes to
accessing the beach. Is this common and how should be addressed?
Issues Specific to Urban Waterfronts
·
Development and visual access to the
waterfront – For some
areas, strict permit requirements exist that regulate the type and height of
waterfront development and therefore can be used to ensure visual access.
However, it is reported that in other areas, such rules do not exist, are not
enforced or are simply flouted. How can visual access be protected or enhanced
without stifling development?
Tools Used to Address Public Access Issues
A number of key cases have already been through the New Jersey
courts and these provide important case law that can be used in addressing
public access issues. However, which of the suite of tools available to address
public access issues would be most successful remains a matter of debate.
Regulatory Programs
Regulatory
Programs, such as CAFRA, the Waterfront Development Act, and the Coastal
Zone Management Rules, can provide powerful tools for ensuring that public
access and open space are incorporated in waterfront development plans. These
rules can be very specific in the details that are stipulated. This can be seen
with the rules that determine the development and public access to two
waterfront areas of New Jersey that are specifically addressed in the state’s
Coastal Zone Management Rules.
The Hudson River Waterfront Area is regulated by rule 7:7E-3.48.
This rule clearly lays out the type of development that is acceptable and
ensures that public access and open spaces are not only incorporated into the
development plan, but that they are also implemented and maintained. The
maximum heights of buildings, and the type and length of public access to piers
etc. are all regulated through this rule. One specific stipulation of the rule
relates to the Hudson Waterfront Walkway:
“All waterfront
development along the Hudson River shall develop, maintain and manage a section
of the Hudson Waterfront Walkway coincident with the shoreline of the
development property. The developer shall, by appropriate instrument of
conveyance, create a conservation restriction in favor of the Department. The
conservation restriction shall define the physical parameters of the walkway
and the allowable uses, address the maintenance and management duties and
identify the responsible party“ (7:7E-3.48(e)).
This rule was challenged in the courts by the National Association
of Home Builders of the United States and the New Jersey Builders Association
who claimed that the walkway requirement amounted to a taking of their property.
In a very significant ruling, the Federal District Judge rejected their claim.
He ruled that 90 percent of the land on which the walkway had been, or was to
be, built was public trust land, as it was formally flowed tidelands. The
remaining 10 percent were lands where it was deemed necessary for the public to
have access in order to enjoy the tidelands.
Waterfront development is also tightly regulated through the
Coastal Zone Management Rules in Atlantic City. Along the Hudson River the
issue relates more to ensuring public access to public trust lands through
waterfront walkways. However, in Atlantic City it is more to do with ensuring
and encouraging free and easy public access to the Boardwalk, piers and the
dry-beach areas below the piers.
Throughout the world, the development of waterfront casinos and
hotels etc. has led to waterfront and beach access being limited to the patrons
of such establishments. In order to prevent such a situation, rule
7:7E-3.49(c)(8)(iv) states:
“The public
open space shall have unrestricted access, at no cost, and shall not be limited
to the patrons of the commercial or hotel facilities”.
The Atlantic City Coastal Zone Management Rule is particularly
detailed with regards to beach access, the location of facilities such are
restrooms and the size and design of public open spaces that are incorporated
into development plans;
“The development
shall provide a means for pedestrians to walk along the dry beach under the
pier from one side to the other, except where the beach is so narrow as to
preclude such passage” (7:7E-3.49(c)(8)(i)); and,
“Public
restroom, showers and changing areas shall be provided on the pier, immediately
adjacent to the Boardwalk and the stairs from the beach on either side of the
pier. Alternatively, the public restroom, showers and changing areas my be
located immediately adjacent to the Boardwalk provided these facilities are:
(1) owned and maintained by the pier owner and, (2) located no further than 200
linear feet from the pier” (7:7E-3.49(c)(8)(vii)); and,
“Publicly
accessible open space, including lighted public seating and viewing and, where
appropriate, fishing areas, shall be provided at the seaward end of the pier at
the level of the deck surface of the Boardwalk. The publicly accessible open space
shall occupy the entire width of the pier (parallel to the ocean shoreline in a
northeast-southwest direction) for a distance of 50 feet landward from the end
of the pier. The area between 30 and 50 feet inland from the end of the pier
may be occupied by outdoor dining and food concessions and be partially
enclosed, through the use of awnings, canopies, and windbreaks. No other
structures shall be placed in this area” (7:7E-3.49(c)(8)(iii)).
The use of the Coastal Zone Management Rules have proven to be a
powerful tool to ensuring public access within certain areas of the New Jersey
waterfront. Therefore it would be possible to add to the rules so that detailed
development criteria, such as those that exist for the Hudson River and
Atlantic City could be extended to cover the rest of the New Jersey coastal
zone. However, the present rules apply specifically for developed urban
waterfronts and the issues that exist in other areas may be less easy to
quantify or qualify. There is also a suite of other tools that have been used
to alleviate coastal access problems without resorting to re-writing the state
regulations.
Zoning and other municipal land use
controls
Municipal governments have a variety of
authorities to control the way land is used and developed. Zoning
is the exercise of the government’s police power to protect the health, safety,
and general welfare of the public. With zoning ordinances, municipalities
control the uses made of private property and the density and dimensions of
development. Municipalities have increasingly used these review and approval
authorities over proposed development to incorporate public access or open
space into the final project. The ability to do so is in some ways limited by
statute and by constitutional protections such as those pertaining to private
landowners’ property rights.
Acquisition Programs
Public
acquisition of coastal property for parks and open space is the most direct way
to increase the amount of coastal property accessible to the public. Coastal
property may be acquired through outright purchase, gift, eminent domain, or
purchase or gift of an access easement (or other less-than-fee interests) on
private property. The principal barrier to public acquisition of coastal
property is its often prohibitively high cost due to intense market demand.
Funds for acquisition of parkland and open space are available through the
federal, state, and municipal governments as well as a host of nonprofit land
conservation organizations. While coastal property may be rated highly
desirable in state and local open space acquisition plans, its high cost
relative to other properties often influences funding decisions.
There are funds available for acquisition programs. For example, in June 1999 Governor Christie Whitman signed the Garden State Preservation Trust Act. This dedicates $98 million per year for 10 years for preservation efforts. The funding can be used for acquiring and preserving open space and sites of historic interest. However, it is important to identify what monies are specifically available to address public access issues and how much is earmarked for the coastline. In New Jersey, the answer is “not much”. Therefore it is necessary to look to other sources. One possible source is municipal funds. If local governments could be required to allocate some of their funding to providing public access resources, this could provide a valuable tool for addressing such issues. The Coastal Zone Management Rules already state that where municipal funds are used for storm damage prevention programs, then public access must be provided:
“Public access, including parking where appropriate, shall be provided to publicly funded shore protection structures and to waterfronts created by public projects unless such access would create a safety hazard to the user. Physical barriers or local regulations which unreasonably interfere with access to, along or across a structure are prohibited” (7:7E-8.11(b)(6)).
In order to make more municipal funds available, the state could require that when municipal funds are used for any habitat restoration program or for a beach nourishment program that aims to increase recreational resources, then public access should also have to be provided. However, municipalities may resist such a move and it has already been reported that some municipalities are reticent to spend funds on shore protection structures as they feel that the public access requirements would lead to over crowding on the municipal beaches.
An
alternative to outright acquisition of property is acquisition of a public
access easement on private property. An
easement or conservation restriction is a partial interest in real property and
therefore less expensive to acquire than the full title.
The New Jersey
Coastal Zone Management rules define a “conservation restriction” as:
"[A] restriction, easement,
covenant, or condition, in any deed, will or other instrument, other than a
lease, executed by or on behalf of the owner of the land, appropriate to
retaining land or water areas predominantly in their natural state, scenic or
open or wooded condition, or for conservation of soil or wildlife, or for
outdoor recreation or park use, or as suitable habitat for fish or wildlife, …”
(7:7E-1.3 (c)).
As is encompassed in the above definition, an easement can be either an affirmative easement which gives the owner of the easement certain defined rights on another’s property, such as the right to pass over the property, or a negative easement which allows the owner of the easement to prohibit certain activities on another’s property, such as alteration of the land or vegetation.
Water Dependent Uses
The
Coastal Zone Management Rules define “water dependent” as:
“[D]evelopment that cannot physically
function without direct access to the body of water along which it is
proposed. Uses, or portions of uses,
that can function on sites not adjacent to the water are not considered water
dependent regardless of the economic advantages that may be gained from a
waterfront location. Maritime activity,
commercial fishing, public waterfront recreation and marinas are examples of
water dependent uses, but only the portion of the development requiring direct
access to the water is water dependent.
The test for water dependency shall assess both the need of the proposed
use for access to the water and the capacity of the proposed water body to
satisfy the requirements and absorb the impacts of the proposed use”
(7:7E-1.3(c)).
The definition of water dependent use includes docks, piers, marina activities, boat repairs, industries such as fish processing plants and other commercial fishing operations, port activities, and water-oriented recreation. They do not include housing, hotels, restaurants, warehouses, most manufacturing facilities, boat sales, automobile junk yards, and non-water oriented recreation such as roller rinks and racquetball courts.
Various states have
regulations that encourage that waterfronts are only developed for water
dependent uses, however the aims of such regulations vary. They may be to ensure
that the areas available for waterfront industries remain available and are not
developed as condominiums. However, another goal is often to maintain or
enhance public access resources. If this is the goal of such rules, then they
can stipulate that new waterfront developments provide amenities such as
walkways, parks, fishing piers and viewing points. Government agencies may
require property owners to convey a public access easement as a condition of
development, but only to mitigate the development’s adverse impacts on public
access, either alone or in conjunction with the cumulative effect of other
development in the same area (Marine Law Institute’s “Managing the Shoreline
for Water Dependent Uses”).
The New Jersey Coastal Zone Management
Program Goals for Public Access
The recent Section 309 Assessment identifies four programmatic
objectives relating to public access:
·
improve public access
through regulatory, statutory, and legal systems;
·
acquire, improve, and
maintain public access sites to meet current and future demand through the use
of innovative funding and acquisition techniques;
·
develop or enhance a
Coastal Public Access Management Plan, which takes into account the provision
of public access to all users of coastal areas of recreational, historical,
aesthetic, ecological, and cultural value; and,
·
minimize potential adverse
impacts of public access on coastal resources and private property rights
through appropriate protection measures.
However, it is important
that, like the “basic coastal policies”, these can be expanded and rewritten. A
report called the State of the Coast, written by the American Littoral Society,
Clean Ocean Action and Save Barnegat Bay recommends that the way in which New
Jersey addresses coastal issues should be changed to include the following:
·
strengthen the requirements
for municipalities to protect the coast;
·
identify priority
conservation areas and coordinate the state’s open space program with local
efforts;
·
coordinate regulatory
decisions to address cumulative impacts;
·
strengthen enforcement of
coastal regulations; and,
·
in general, consider the
coast as a resource to be protected rather than exploited.
It is essential that sufficient
information be known about the state of the public access resources. This will
greatly facilitate any management decision-making. This information must then
be made freely available to the public so that they can enjoy the waterfront.
Furthermore, the goals of a coastal zone management program must be developed
with significant stakeholder involvement. The state is the trustee of coastal
lands, but their ownership remains with the public. Therefore, what occurs in
these areas must be, to the greatest extent possible, the decision of the
people.
Public access is of key
importance to the general public. For most people, their concerns for the coast
are limited to being able simply to enjoy the waterfront. They want to be able
to get to the waterfront easily and cheaply and, once there, be able to enjoy a
clean, pleasant and peaceful time. Therefore the right to enjoy that waterfront
may be as much as many of the public will ever come to knowing about the
state’s coastal zone management policies.