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Now, a Day at the Beach Can Mean a Day in Court

Tresa Baldas
The National Law Journal
The right to enjoy the beach has given rise to a tidal wave of litigation in recent years, with public-access advocates and private property owners butting heads over who owns the right to stroll, swim or fish along America's coastline.
Lately it appears that public beach-goers are winning that legal fight as judges are drawing imaginary lines in the sand dictating which parts of a beach are private and which are public.
In Michigan, the state Supreme Court recently ruled that the public has the right to stroll along all 3,200 miles of Great Lakes shoreline property, even if adjacent to private land.
In New Jersey, just three days before the Michigan ruling, the state Supreme Court ruled that private beach owners must make some of the dry sand above the high-tide line available to the public, and ordered a private beach club to give nonmembers full access to the beach for $3 a day, or $55 a season.
In California, the state's Coastal Commission on Aug. 12 banned the use of no-trespassing signs and motorized beach patrols along Broad Beach in Malibu, where public-access suits are ongoing.
Also in California, in a closely watched beach-access lawsuit, billionaire David Geffen settled a three-year-old lawsuit in April when he agreed to allow public access to the beach in front of his Malibu estate.
"There's no question that over the years [public access] has been increasingly threatened, and there's no question that over the coming years it's going to continue to be threatened. You know why? God only made so much coastline," said attorney Stuart Lieberman of Lieberman & Blecher in Princeton, N.J. Lieberman recently won a lawsuit on behalf of New Jersey residents who sued a private beach club for charging high
fees -- $700 for a family season pass -- to use the beach.
"Every single beach owner who thought they could exclude the public is taking a long, hard look at this decision and is wondering what the future has in store for them in light of the case," Lieberman said. Property-rights advocates agree that the New Jersey ruling will set a precedent -- but a dangerous one.
"There's definitely private property issues here ... some of those property rights have been sliced away," said attorney Chad Sherwood, who represents the Atlantis Beach Club in New Jersey. The club was ordered to drop its seasonal fee from $700 per family to $55 per person, and allow full beach access to the public for anyone willing to pay it. Raleigh Ave. Beach Assoc. v. Atlantis Beach Club, No. A-40-04 (N.J. 2005).
"One of the key property rights that someone has is the right to exclusion," said Sherwood of Pleasantville, N.J.-based Youngblood, Corcoran, Lafferty & Hyberg. "If I own my house and someone wants to sit on my front lawn, I can call the police and have them removed. They've got no right to sit on my lawn. But here my clients own a piece of
[waterfront] property that if someone wants to go and sit on it, they can sit on it. That's a major property right that they have lost."
At the heart of beach-access cases is an ancient Roman law known as the public trust doctrine, which originally was intended to guarantee fishermen's rights and give stranded boaters or ships safe landing rights. But attorneys note that the doctrine has been expanded in recent years to apply to all water activities, including beach access. "I think it's long gone from what the original intent was. It's now about the right to have a summer vacation," Sherwood said. A key issue before judges is determining at what point along the shoreline does private property end and public access begin. Does the public doctrine cover just the water, or does it include the damp sand along the coastline, and some soft sandy parts? In the Atlantis Beach Club case, New Jersey's high court ruled that the public must have access to the entire beach, from where the surf reaches at high tide to the high dunes between the beach and the condominium towers just west of it.
In Michigan, the Supreme Court limited public access to the shoreline, ruling that the public was free to stroll along any beach up to the high-water mark, which is where the water leaves a line. This means people don't have to stay in the water, but can walk along the damp shoreline as well. Glass v. Goeckel, No. 126409 (Mich. 2005).
"Millions of people were going to have to walk in the water," said attorney Pam Burt, who won the beach-access suit before the Michigan Supreme Court.
Burt of Weiner & Burt in Harrisville, Mich., believes that the public doctrine was applied properly in her case, saying that the ruling didn't grant the public any rights it didn't already have.
"Even before we were admitted to the union, it's always been the case that the public had rights to use these waters," said Burt. She said that public-access rights have increasingly been threatened in Michigan by private homeowner associations. "There's kind of been this landgrab push to narrow and confine the public's right [to beach access] ... it's fostered a 'Hey, this is all mine, you can't come near it' attitude.' "
The Michigan Supreme Court's ruling arose from a dispute between resident Joan Glass, who sued her neighbors Richard and Kathleen Goeckel over access to the couple's Lake Huron waterfront. The Goeckels claimed that Glass was trespassing and regularly congregated with friends on their property. On July 29, the state Supreme Court ruled, 5-2, in Glass' favor, finding that "it is a tradition to walk on the beaches," and to change that would be in conflict with the public trust doctrine.
On Aug. 19, Scott Strattard, attorney for the Goeckels, asked the Supreme Court to reconsider its ruling, arguing that it was based on faulty legal reasoning and allows unconstitutional seizure of private land for public use.
"These people made purchases of beachfront property when the law said you have to the water's edge, and now they don't. And I don't know how you can call that anything other than a reduction in property rights, which in my view is a taking without any compensation," said Strattard of Braun Kendrick Finkbeiner in Saginaw, Mich.
Strattard also argued that many homes along the Great Lakes are close together and located just a few feet from the water. This could lead to public crowding on already cramped beach area, he said. Strattard said he fears that the ruling will be widely misinterpreted by the public, leading some to believe they can "put their blanket down. I suppose they could put an umbrella in the sand, too."
For Ohio attorney James Lang, who represents the Ohio Lakefront Group in an ownership rights case where public access issues have been raised, the recent Michigan ruling doesn't hold much water.
Lang of Calfee, Halter & Griswold in Cleveland, represents lakefront residents who are suing the Ohio Department of Natural Resources, claiming that the state is working to strip them of property rights and to claim ownership of beach property that they say is rightfully theirs. Ohio Lakefront Group v. Ohio Dep't of Natural Resources, No 1:05-CV-0818 (N.D. Ohio.).
"The state is coming in and saying, 'That dry land over there. You don't own it,' " Lang said. "We're trying to push the state back to the water." As in Michigan, the Ohio case centers around where private property ends and where it begins on a beach. But Ohio law is different from Michigan law, noted Lang, who said, "Never in Ohio has the public trust ever extended beyond the water."
Not so in California, claimed Steve Hoye, whose nonprofit group Access for All has been in and out of court for several years fighting for public access to California's coastline.
"I'd like to see people being able to choose whatever coastal experience they want on a particular day," Hoye said. "The problem is the homeowners who simply don't want the public there at all."
One such homeowner who resisted public access is Geffen, Hoye said. He sued Access for All and the California Coastal Commission in 2002 over a public path that would lead to his beach. Geffen argued that public access to his Malibu estate represented an unconstitutional taking of his property. City of Malibu/Geffen v. Access for All/Costal Comm'n, No. BC277034 (Los Angeles Co., Calif., Super. Ct.).
But on April 15, after three years of litigation and daily fines of $1,000 a day, Geffen settled his suit and agreed to allow the public path.
Still, noted Hoye, much of California's coastline is tangled in legal disputes over public access, despite a state law that requires that all 1,160 miles of state shoreline be available to the public up to the mean high-tide line. He said that many wealthy homeowners have resisted letting the public onto their beaches, so lawsuits have ensued. For example, the California Coastal Commission, which is charged with overseeing development and protecting public beach access along the coast, has been engaged in 21 legal fights over long-promised public access ways across private property. Most recently, on Aug. 12, the commission ordered homeowners on Broad Beach to stop posting no-trespassing signs and using motorized police patrols.
The commission also filed a lawsuit against a homeowners association along Broad Beach for building a sand berm without a permit that allegedly blocked public access. California Costal Comm'n v. Trancas Property Owners Assoc., No. SC 086150 (Los Angeles Co., Calif., Super. Ct.).
Attorney Kenneth Ehrlich of Jeffer, Mangels, Butler & Marmaro in Los Angeles, who is representing the Trancas Property Owners Association in that litigation, denied any wrongdoing on his clients' part. He said that the association was trying to repair erosion damage when it built the berm, and that it stopped posting no-trespassing signs many months ago. He also defended the group's right to protect its private property interests.
"The bottom line is that the private property rights that exist along the coast should be respected. And at the end of the day, typically those private rights don't impair the existing public access to our beaches," said Ehrlich. "I've lived in Southern California, close to the beach, my entire life. I find there to be ample public resources and public beaches."
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