|Avon-by-the-Sea's beach as shown at bestinbeach.com, photo credited to Lisa Dworkin, who rates Avon-by-the-Sea's beach as four out of five chaise lounges|
Borough of Neptune City v. Borough of Avon-by-the-Sea,
Before We Begin, Why We Care About Access
Continuing our run of belying our mandate, Borough of Neptune City v. Borough of Avon-by-the-Sea ALSO doesn't involve the Clean Water Act, so what are we doing here? Clean Water Act Cases is proudly now associated with the Clean Water Advocacy Center, a non-profit environmental public interest law firm headquartered in Montclair, New Jersey.
As it says in the logo header, CWAC advocates for strong, healthy waterways, and we do that by providing legal services to everyday folks with water quality, quantity or access issues. That means that we fight for water quality (primarily, through the Clean Water Act and other state and federal statutes), for water supply (whether in riparian jurisdictions, prior appropriation jurisdictions, or using statutes like the Safe Drinking Water Act to make sure your drinking water is safe to drink), and for access to public trust lands, primarily the beds and banks of navigable waterways.
Public access is important to clean water advocacy because people tend to value the resources they can access; access leads to a sense of ownership and responsibility. In the water advocacy community, the archetypal example of this theory is the San Antonio Riverwalk, which according to a study commissioned in 2014, attracts 11.5 million visitors, contributes $3 billion to the local economy and directly influences 21,000 San Antonio jobs. When that much depends on your river you tend to try to make it not smell like sewage. Consequently, many water advocacy organizations make public access an important part of their mission.
Because of our connection to CWAC, CWA Cases will continue to analyze important Clean Water Act cases, but also explore interesting or important cases affecting water supply, drinking water quality and public access to water resources.
And so we come to today's case, Borough of Neptune City v. Borough of Avon-by-the-Sea, a New Jersey Supreme Court case that spawned the line of cases that govern access to New Jersey's tidal waterways.
The evocatively named Avon-by-the-Sea, which people call Avon (but pronounce with a flat a like in Abercrombie), is an Atlantic Ocean seaside town on the New Jersey shore. As Ms. Dworkin will tell you, it has a nice beach to which many people would like to go. in 1972, Avon had 1,850 year-round residents, but 5,500 summer residents and some vastly higher number of day visitors. Avon has an elevated boardwalk and, seaward of that, a broad sandy beach. The town owns the beach, which is deeded to be, in effect, a public park. The tide-flowed land between the mean high and low water marks is owned by the State, but more on that later.
|Avon-by-the-Sea's boardwalk on a busy June Saturday in 2011. Read all about it at patch.com|
Like most or all New Jersey ocean shore towns, Avon sought to reduce congestion and raise funds by monetizing their beach. New Jersey, uniquely, allows shore towns to charge for badges that permit public entry to the beach. (NJ Rev Stat § 40:61-22.20) In 1969, before Avon adopted the ordinance at issue in this case, its beach badge program raised nearly $150k for the town. Avon offered proof to show that beach operations cost the Borough about $200k that year.
Avon amended the ordinance in 1970 to raise the price of a monthly and seasonal badge to $10, and to restrict the sale of seasonal badges to Avon residents. It also raised day rates substantially. These changes significantly raised the price non-residents had to pay to access Avon's beach. In particular, if you were a resident of Neptune, an adjacent borough without any coastline, you'd have to pay at least twice as much as an Avon resident for your beach badges.
Neptune, you can be sure, did not like this discriminatory pricing, and sued to challenge Avon's amended ordinance. Neptune expected to slug it out with Avon over municipal costs and expenditures, but the New Jersey Supreme Court had a different plan.
We prefer, however, not to treat the case on this basis, but rather, as we indicated at the outset, to approach it from the more fundamental viewpoint of the modern meaning and application of the public trust doctrine.(61 N.J. at 303, emphasis added.)
|Justinian, as featured on Wikipedia|
Few write about the public trust doctrine without mentioning the Roman Emperor Justinian, whose famous 6th century Justinian Code contained reference to the idea that the lands beneath the sea were the Emperor's, but that he held those lands in trust for the people. If you're better than me in Latin, which shouldn't be hard, you can translate this quote from the Code in the comments:
publica sunt omnia flumina et portus ideoque jus piscandi omnibus commune est in portu fluminibusque, et riparum etiam usus est publicus jure gentium, sicut et ipsius fluminis. The Justinian Code, as quoted in Arnold v. Mundy, 6 N.J.L. 1 (1821).
Somewhat less common is to cite the Magna Carta, though Chief Justice Kirkpatrick, who wrote the opinion in Arnold v. Mundy could not resist the urge. The reader should be aware, that to seem truly learnèd, one must spell it "Magna Charta" and Chief Justice Kirkpatrick was learnèd indeed. The upshot was that the Magna Carta, derived from the principles espoused in the Justinian Code, created a very real, legal trust, where the bed and banks of tidal waters, the corpus of the trust, are managed by trustees, the state through its legislature, to benefit the beneficiaries of the trust, the people of the state. This trusteeship passed from the Roman Empire to the British Crown to the New Jersey Legislature, and it protected the people's right to access and use the land below the mean high tide line for certain purposes. This has become known as the public trust doctrine, and it is the basis for some very interesting American common law.
You'll excuse me for spending time on Arnold because to my knowledge, it is the first American court to discover the existence of this governmental trusteeship and individual entitlement. It's a big deal.
Chief Justice Kirkpatrick Sure Loved Language
So Arnold v. Mundy established the public trust doctrine as the law of New Jersey, and it is seriously some of the most overwrought legal writing I have ever come across. It is long, it insists on calling it the "Magna Charta," it contains passages like this:
It is manifest that our ancestors, who, I may venture to assert, felt as ardent a love of liberty, and understood their rights as Englishmen, as well, at least, as many who prate about the rights of the people, and common right, and other imposing terms, had no such opinion. These men, whose love of civil and religious liberty, led them to abandon the delights of civilized life, the tombs of their ancestors, and all those endearing ties which bind man to the place of his birth to encounter the privations, hard ships, and dangers of settling a wilderness, peopled only by savages, knew well the rights, the powers, and privileges of the proprietors, under these grants.(6 N.J.L. at 20-21)
And like (oh my god) this:
proceeded from a struggle between the barons, bold, turbulent, rapacious, and oppressive, and kings, weak, timid, and tyrannical. Let us not be the slaves of mere words. Whatever benefit has accrued to the liberties of the world from , has arisen more from chance than design. The barons armed themselves not to support the rights of the people, but to protect their own usurpations upon the rights of both monarch and people, and, in the collision between the two oppressors, some principles of liberty were struck out. It was a mere streamlet issuing, as if by a miracle, from the rock of tyranny, struck not by the arm of inspired patriotism, but by a casual blow of the sword of the mailed baron, in the attempt to deck himself in the robes of royalty. (6 N.J.L. at 52)
We're talking about Neptune v. Avon, not Arnold v. Mundy (we read it so you don't have to!), so let's get back to 1972 where folks wrote like folks and not like Kit Marlowe. As you'll recall from before my digression to the nineteenth century, the Supreme Court was disinterested in Neptune's accounting arguments, they wanted to talk about the public trust doctrine. They began thusly:
There is not the slightest doubt that New Jersey has always recognized the trust doctrine.(61 N.J. at 305).
What Justice Hall wanted to do in 1972 was clear up exactly what the doctrine means, and he identified two important aspects he wanted to touch on: alienation and public access.
|The Trustafarian Handbook, available on Amazon and |
wherever fine books are sold
Just as a trustee you hire from a bank to administer a trust to benefit your wastrel grandkids (who, if left to their own devices would blow any amount of money you gave them on sweet kayaks, kind bud and Dave Matthews Band tickets [that's what kids these days are into, right?]) cannot simply take your corpus and sell it, so too the legislature, the trustee in the public trust doctrine, cannot take the public's land and sell it. As in any trust, the trustee's powers are limited by fiduciary duties. Justice Hall noted that amount of tidelands property retained by the state had diminished and the public demand for these resources had expanded, and he wanted to point out, apropos of nothing much, that
the statements in our cases of an unlimited power in the legislature to convey such trust lands to private persons may well be too broad. (61 N.J. at 308)
Then, having laid out the path for many future decisions where New Jersey Courts would expand the public right to tidal lands, Justice Hall neatly pivots to the case's main point, public access.
Public AccessAs in any Trust, the trustee cannot simply get rid of the corpus, nor can he or she manage the trust so as to discriminate between beneficiaries. Consequently,
a modern court must take the view that the public trust doctrine dictates that the beach and the ocean waters must be open to all on equal terms and without preference and that any contrary state or municipal action is impermissible.(61 N.J. at 309)
Moreover, beneficiaries may enjoy the public trust corpus in many ways. The ancient prerogatives were to access the shore for navigation and fishing, and while people today still enjoy those things, they even more broadly enjoy accessing the beach for "recreational uses, including bathing, swimming and other shore activities." (61 N.J. at 309). The public trust doctrine protects those uses as well, because, with apologies to the memory of Justice Antonin Scalia,
The public trust doctrine, like all common law principles, should not be considered fixed or static, but should be molded and extended to meet changing conditions and needs of the public it was created to benefit.(Id.)
Justice Hall cites several other states that have similarly expanded the doctrine to protect new uses, and several writers who had argued for an expanded interpretation.
Clearly, all this talk of expanded public rights and trust law bodes poorly for Avon. Beneficiaries must be treated equally in a normal trust, and similarly
We are convinced it has to follow that, while municipalities may validly charge reasonable fees for the use of their beaches, they may not discriminate in any respect between their residents and non-residents.(61 N.J. at 310)
Cue Justice Francis.
Justice Francis objects primarily to the majority's conflating public trust land below the mean high water line, and private dry sand area above it, which, here, was owned by Avon. According to Francis "the common right is not so pervasive" as to imply a public right to use private beach above the mean high tide line. (61 N.J. at 313) In Justice Francis' judgment, "a private owner could legally fence in his entire beach area upland of the mean high water mark, if he was moved to do so." (Id.) As it turns out, Justice Francis was correct to see this as the logic outgrowth of the majority's decision.
Growing from that reasoning, Justice Francis also believed that because Avon owned the dry sand portion of its beach, it was reasonable for Avon to charge non-residents whatever it wanted to access its property.
Lighten Up, Francis.