Who Owns jersey Shore?

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SandBar 9:4, October, 2010 Recommended citation: Terra Bowling, Who Owns Jersey Shore?, 9:4 SandBar 14 (2010). Who Owns Jersey Shore? Terra Bowling, J.D. On the heels of the U.S. Supreme Court’s decision in Stop the Beach Renourishment, the New Jersey Supreme Court has ruled that dry beach produced by a government-funded beach replenishment program is not the property of the upland owners.1 The court ruled that the expanded dry beach fell within the public trust doctrine and, therefore, the owners were not entitled to compensation for that land in eminent domain proceedings. Background As part of a redevelopment plan for beachfront areas the City of Long Branch (the City) sought to acquire oceanfront property, including the Liu family’s commercial building. The building contained several businesses run by the Lius, as well as businesses leased to commercial tenants. After the Lius rejected an offer to purchase the property for $900,000, the City filed an eminent domain action to take littoral property owned by the Liu family. In its complaint, the city described the Liu property according to a 1977 deed; however, due to a beach renourishment project in the 1990s, the Lius’ beachfront had increased by more than two acres from the description given in their 1977 deed. The multi-million dollar beach renourishment project, funded by federal, state, and several municipal governments, produced approximately 225 additional feet of dry land seaward from the mean high water mark described in the deed. In the eminent domain proceedings, the Lius claimed that they should be compensated for the loss of the dry land added as a result of the beach renourishment. The trial court denied the Lius’ claim. The court noted that generally, the state holds in trust for the public land covered by tidal waters up to the mean high watermark. Several common law principles govern property rights of the upland owner and the state when the shoreline is altered. Under the common law principle of avulsion, a sudden addition to land caused by either natural or manmade forces, does not result in change of title to the land. The land seaward of the previous high water mark remains with the state. However, under the common law principle of accretion, which is the slow, imperceptible addition of sand, the upland owner gains title to the addition of dry beach. The trial court reasoned that the two-week beach renourishment project resulted in avulsion and ruled that the Lius did not gain title to the new dry land added to the shoreline. On appeal, an appellate court affirmed that decision but on different grounds. Instead of looking at common law principles, the panel found that policy reasons precluded the Lius from benefiting from the public renourishment project in the beach renourishment action. The Lius appealed. Common Law On appeal, the New Jersey Supreme Court turned to common law principles in making its decision. The court reiterated the fact that the State of New Jersey “owns in fee simple all lands that are flowed by the tide up to the highwater mark … and the owner of oceanfront property holds title to the property upland of the high water mark.”2 The court noted, however, that the shoreline “is in a constant state of flux” changing either imperceptibly over the years or swiftly due to natural causes or acts such as the beach renourishment program. The court reiterated that under common law, upland owners are entitled to dry land added by accretion, but lose land as a result of erosion. Under avulsion, however, the boundary line does not shift. “The prior mean high water mark remains the demarcation line between the property rights of the oceanfront owner and the state.”3 Further, the court recognized that “the law, generally, makes no distinction between whether an accretion or avulsion is the product of natural forces or manmade efforts. The court next looked at the Lius’ claim that the court should disregard the common law distinctions between accretion/erosion and avulsion and find a “natural equity” as a basis for giving littoral owners direct contact with the water. The court declared that this approach would be contrary to the public trust doctrine. “Moreover, natural equity is hardly a concept to be invoked by a property owner who is asking to be compensated in a condemnation action for new beachfront property created by a taxpayer-funded beach replenishment program. The primary purpose of the program is to protect the shoreline – public beaches and private beaches – from erosion.” The court reasoned that the renourishment project protected the Lius’ property from erosion. Ultimately, the court rejected the Lius’ claims. “In the end, under the public trust doctrine, the people of New Jersey are the beneficiaries of the lengthening of the dry beach created by this government funded program. Because the mean high water mark remains the boundary line between private and public property, there was no true loss of land to the Lius or gain to the state. In the context of this eminent domain action, the Lius cannot be recompensed for the taking of property they never owned.” Endnotes 1. City of Long Branch v. Jui Yung Liu, 2010 N.J. LEXIS 910 (N.J. Sept. 21, 2010). 2. Id. at 22. 3. Id. at 27.
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SandBar 9:4, October, 2010
Recommended citation: Terra Bowling, Who Owns Jersey Shore?, 9:4 SandBar 14 (2010).

Who Owns Jersey Shore?

Terra Bowling, J.D.

On the heels of the U.S. Supreme Court’s decision in Stop the Beach Renourishment, the New Jersey Supreme Court has ruled that dry beach produced by a government-funded beach replenishment program is not the property of the upland owners.1 The court ruled that the expanded dry beach fell within the public trust doctrine and, therefore, the owners were not entitled to compensation for that land in eminent domain proceedings.

Background
As part of a redevelopment plan for beachfront areas the City of Long Branch (the City) sought to acquire oceanfront property, including the Liu family’s commercial building. The building contained several businesses run by the Lius, as well as businesses leased to commercial tenants. After the Lius rejected an offer to purchase the property for $900,000, the City filed an eminent domain action to take littoral property owned by the Liu family.
In its complaint, the city described the Liu property according to a 1977 deed; however, due to a beach renourishment project in the 1990s, the Lius’ beachfront had increased by more than two acres from the description given in their 1977 deed. The multi-million dollar beach renourishment project, funded by federal, state, and several municipal governments, produced approximately 225 additional feet of dry land seaward from the mean high water mark described in the deed. In the eminent domain proceedings, the Lius claimed that they should be compensated for the loss of the dry land added as a result of the beach renourishment.
The trial court denied the Lius’ claim. The court noted that generally, the state holds in trust for the public land covered by tidal waters up to the mean high watermark. Several common law principles govern property rights of the upland owner and the state when the shoreline is altered. Under the common law principle of avulsion, a sudden addition to land caused by either natural or manmade forces, does not result in change of title to the land. The land seaward of the previous high water mark remains with the state. However, under the common law principle of accretion, which is the slow, imperceptible addition of sand, the upland owner gains title to the addition of dry beach. The trial court reasoned that the two-week beach renourishment project resulted in avulsion and ruled that the Lius did not gain title to the new dry land added to the shoreline. On appeal, an appellate court affirmed that decision but on different grounds. Instead of looking at common law principles, the panel found that policy reasons precluded the Lius from benefiting from the public renourishment project in the beach renourishment action. The Lius appealed.

Common Law
On appeal, the New Jersey Supreme Court turned to common law principles in making its decision. The court reiterated the fact that the State of New Jersey “owns in fee simple all lands that are flowed by the tide up to the highwater mark … and the owner of oceanfront property holds title to the property upland of the high water mark.”2 The court noted, however, that the shoreline “is in a constant state of flux” changing either imperceptibly over the years or swiftly due to natural causes or acts such as the beach renourishment program. The court reiterated that under common law, upland owners are entitled to dry land added by accretion, but lose land as a result of erosion. Under avulsion, however, the boundary line does not shift. “The prior mean high water mark remains the demarcation line between the property rights of the oceanfront owner and the state.”3 Further, the court recognized that “the law, generally, makes no distinction between whether an accretion or avulsion is the product of natural forces or manmade efforts.
The court next looked at the Lius’ claim that the court should disregard the common law distinctions between accretion/erosion and avulsion and find a “natural equity” as a basis for giving littoral owners direct contact with the water. The court declared that this approach would be contrary to the public trust doctrine. “Moreover, natural equity is hardly a concept to be invoked by a property owner who is asking to be compensated in a condemnation action for new beachfront property created by a taxpayer-funded beach replenishment program. The primary purpose of the program is to protect the shoreline – public beaches and private beaches – from erosion.” The court reasoned that the renourishment project protected the Lius’ property from erosion.
Ultimately, the court rejected the Lius’ claims. “In the end, under the public trust doctrine, the people of New Jersey are the beneficiaries of the lengthening of the dry beach created by this government funded program. Because the mean high water mark remains the boundary line between private and public property, there was no true loss of land to the Lius or gain to the state. In the context of this eminent domain action, the Lius cannot be recompensed for the taking of property they never owned.”

Endnotes
1. City of Long Branch v. Jui Yung Liu, 2010 N.J. LEXIS 910 (N.J. Sept. 21, 2010).
2. Id. at *22.
3. Id. at *27.