Bill Text: NJ S3612 | 2016-2017 | Regular Session | Introduced


Bill Title: Establishes Beach Access Commission to adjudicate disputes under public trust doctrine.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Introduced - Dead) 2017-12-11 - Introduced in the Senate, Referred to Senate Environment and Energy Committee [S3612 Detail]

Download: New_Jersey-2016-S3612-Introduced.html

SENATE, No. 3612

STATE OF NEW JERSEY

217th LEGISLATURE

 

INTRODUCED DECEMBER 11, 2017

 


 

Sponsored by:

Senator  JENNIFER BECK

District 11 (Monmouth)

 

 

 

 

SYNOPSIS

     Establishes Beach Access Commission to adjudicate disputes under public trust doctrine.

 

CURRENT VERSION OF TEXT

     As introduced.

  


An Act concerning disputes under the public trust doctrine and supplementing Title 13 of the Revised Statutes. 

 

     Be It Enacted by the Senate and General Assembly of the State of New Jersey:

 

     1.    a.  There is established in, but not of, the Department of Environmental Protection, the Beach Access Commission.  The purpose of the commission shall be to hear and adjudicate disputes concerning the public's rights under the public trust doctrine to access, use, and enjoy the State's tidal waters and adjacent shoreline, and any upland dry sand beach necessary to access, use, and enjoy those areas, for the purposes of navigation, fishing, or recreational uses. 

     b.    The commission shall consist of seven members, appointed as follows:  three members shall be appointed by the Governor with the advice and consent of the Senate; one member shall be appointed by the President of the Senate; one member shall be appointed by the Senate Minority Leader; one member shall be appointed by the Speaker of the General Assembly; and one member shall be appointed by the Assembly Minority Leader.  Each member shall have knowledge or expertise on the issues of beach access or the public trust doctrine.  Of the three members appointed by the Governor, no more than two shall be of the same political party.  Each member shall serve for a term of four years and shall serve until the member's successor is appointed and qualified; provided, however, that in order to achieve non-concurrent terms, of the members first appointed pursuant to this subsection: two of the members appointed by the Governor shall serve for a term of four years; the members appointed by the President of the Senate and the Speaker of the General Assembly shall serve for a term of three years; the members appointed by the Senate Minority Leader and the Assembly Minority Leader shall serve for a term of two years; and one member appointed by the Governor shall serve for a term of one year.  Members of the commission may be reappointed to successive terms. 

     c.     All appointments to the commission shall be made within 90 days after the effective date of this act.  Members may be removed by the Governor for cause.  Vacancies in the membership of the commission shall be filled in the same manner as the original appointments were made.  Members of the commission shall serve without compensation, but shall be reimbursed for necessary expenses incurred in the performance of their duties within the limits of funds appropriated or made available therefor.

     d.    The commission shall organize within 30 days after the appointment of a majority of its authorized membership and select a chairperson and vice chairperson from among its members.  The chairperson shall appoint a secretary who need not be a member of the commission.  The commission may hold meetings and hearings at places and times as it designates pursuant to subsection d. of section 2 of this act.  A majority of the total authorized membership of the commission shall constitute a quorum and no action may be taken by the commission except upon the affirmative vote of a majority of the total authorized membership of the commission.

     e.     Staff and related support services shall be provided to the commission by the Department of Environmental Protection.  The commission shall also be entitled to call to its assistance and avail itself of the services of the employees of any State, county, or municipal department, board, bureau, commission, authority, or agency as it may require and as may be available to it for its purposes.

     f.     The commission shall establish procedures for the conduct of its meetings, public hearings, and other business, and shall be subject to the provisions of the "Senator Byron M. Baer Open Public Meetings Act," P.L.1975, c.231 (C.10:4-6 et seq.).

     g.    The members of the commission shall be subject to the "New Jersey Conflicts of Interest Law," P.L.1971, c.182 (C.52:13D-12 et seq.).

 

     2.    a.  Any person who seeks access to, or use and enjoyment of, the State's tidal waters and adjacent shoreline, or any upland dry sand beaches necessary to access, use, and enjoy those areas, for the purposes of navigation, fishing, or recreational uses pursuant to the public trust doctrine, and is denied such access, use, or enjoyment by any person or any public or private entity, may file a complaint with the Beach Access Commission established pursuant to section 1 of this act in lieu of filing an action in court.  A complaint shall be filed in a form and manner as determined by the commission.  The commission shall not charge any party a fee in regard to actions filed with the commission. 

     b.    Upon the filing of a complaint, the commission shall give notice thereof to the owner of the property on which the complainant was denied access, use, or enjoyment, and the municipality in which the property is located, and provide the owner and the municipality with an opportunity to respond to the complaint in writing.  The commission may conduct and mediate an initial meeting between the parties to effect a voluntary resolution to the dispute.

     c.     If, at any time, the commission determines that public access to, or use or enjoyment of, the tidal waters, adjacent shoreline, or upland dry sand beaches at issue is a condition of any permit or other approval issued by the Department of Environmental Protection, the commission shall immediately forward the complaint to the department for appropriate action.  The department shall issue a written response to the parties and the commission within 30 days after receipt of the complaint. 

     d.    The commission may, in its discretion, hold a public hearing to provide all interested parties and the public with the opportunity to present, orally or in writing, their positions concerning the complaint.  Public notice of the hearing shall be provided at least two weeks prior to the date of the hearing.  The proceedings shall not be bound by the statutory or common law rules of evidence.  The commission shall conduct such fact finding as it deems necessary in order to make its decision pursuant to subsection f. of this section.  Such fact finding shall include, but need not be limited to, any maps or other relevant documents from the municipality or the department identifying the location of existing public access points. 

     e.     The department may, at any time, pursuant to its existing authority, intervene in the proceeding and impose reasonable restrictions on access to the tidal waters, adjacent shoreline, and upland dry sand beaches at issue, but only in order to protect endangered or threatened species or their habitat from injurious uses. 

     f.     (1)  No later than 90 days after receipt of the complaint, the commission shall, by a majority vote of its total authorized membership, render a written decision on whether the complainant and the public shall have the right to access, use, and enjoy the tidal waters, adjacent shoreline, or upland dry sand beaches at issue.  If the commission finds that the complainant and the public have such a right, the commission shall also specify in its decision the type of public access available or needed and what measures the owner of the property shall take to provide access consistent with the commission's decision.  In issuing its decision, the commission shall adhere to the common law public trust doctrine and the principles and standards established therefor by the courts of this State.  The decision shall contain a brief description of the commission's findings and the reasoning for its decision.

     (2)  The commission may, for good cause, or upon the consent of both parties, extend the 90-day timeframe for issuing a decision by an additional 30 days or any other such time as agreed to by the parties. 

     g.  The commission may issue an order requiring any person, or any public or private entity, to comply with the commission's decision, or to remove any physical barriers to the tidal waters, adjacent shoreline, or upland dry sand beaches to which the public has the right of access. 

     h.    The commission shall forward its decision and any order to the governing body of the municipality in which the tidal waters, adjacent shoreline, or upland dry sand beaches at issue are located, the Commissioner of Environmental Protection, and the Attorney General. 

     i.     Any party aggrieved by a decision or order of the commission may appeal such decision or order to the Superior Court, Appellate Division, as an appeal from a State administrative agency.

 

     3.    In addition to the powers exercised by the Attorney General pursuant to any other law, when it shall appear to the Attorney General that a person has violated, or failed to comply with, a decision or order of the Beach Access Commission issued pursuant to section 2 of this act, the Attorney General may institute a civil action in Superior Court to enjoin the violation or require compliance, or take any other measures as the Attorney General deems appropriate to enforce any decision or order of the commission. 

 

     4.    This act shall take effect immediately.

 

 

STATEMENT

 

     This bill would establish the Beach Access Commission to hear and adjudicate disputes under the public trust doctrine. 

     The public trust doctrine is the legal principle that ownership of the land flowed or formerly flowed by tidal waters is vested in the State to be held in trust for the people and that the people of the State have the right to access, use, and enjoy the tidal waters and adjacent shoreline for navigation, fishing, and recreational purposes.  Additionally, the courts of this State have held that the public has the right to cross over privately-owned, upland dry sand beach areas, when necessary, in order to access, use, and enjoy the tidal waters and adjacent shoreline, and in some cases to sunbathe and enjoy recreational activities on the dry sand.  Despite these well-established principles, however, public access to the beach is still restricted in a number of communities, and the only way for a person to assert their rights under the public trust doctrine is to bring a costly and time-consuming action in court. 

     Under this bill, any person who seeks access to, or use or enjoyment of, the State's tidal waters and adjacent shoreline, or any upland dry sand beaches necessary to access, use, or enjoy those areas, and is denied such access by any person or any public or private entity, may file a complaint with the Beach Access Commission created by the bill.  The commission would give notice of the complaint to the owner of the property on which the complainant was denied access and to the municipality in which the property is located, and both would have an opportunity to respond to the complaint in writing.  The commission may conduct an initial meeting between the parties to effect a voluntary resolution to the dispute.  The commission may also hold a public hearing to provide all interested parties the opportunity to present, orally or in writing, their positions concerning the complaint.  The commission may also conduct any fact-finding it deems relevant and would not be bound by the rules of evidence.

     Within 90 days after receipt of the complaint, the commission would be required to issue a written decision on whether the complainant and the public have a right to access, use, and enjoy the tidal waters, adjacent shoreline, or upland dry sand beaches at issue.  If the commission rules in favor of the complainant, the commission's decision must also specify the type of public access available or needed, and what measures the owner of the property must take to provide access consistent with the commission's decision.  In issuing its decision, the commission would be required to adhere to the common law public trust doctrine and the principles and standards established therefor by the courts of this State.  Additionally, the commission would be authorized to issue an order requiring any person, or any public or private entity, to comply with the commission's decision, and to remove any physical barriers to the tidal waters, adjacent shoreline, or upland dry sand beaches to which the public has the right of access.  The Attorney General would be authorized to enforce any decision or order of the commission.  Any party aggrieved by a decision or order of the commission may appeal to the Superior Court, Appellate Division. 

     If, at any time, the commission determines that public access to the tidal waters, adjacent shoreline, or upland dry sand beaches at issue is subject to a permit or approval issued by the Department of Environmental Protection, the commission would immediately forward the complaint to the department.  The department would then be required to issue a written response to the parties and the commission within 30 days after receipt of the complaint.  Additionally, the department could, at any time, under any existing authority, intervene in the proceeding and impose reasonable restrictions on access to the tidal waters, adjacent shoreline, and upland dry sand beaches at issue, but only in order to protect endangered or threatened species or their habitat from injurious uses. 

     The commission would consist of seven members, appointed as follows: three by the Governor with the advice and consent of the Senate, one by the President of the Senate, one by the Senate Minority Leader, one by the Speaker of the General Assembly, and one by the Assembly Minority Leader.  Each member of the commission would have knowledge or expertise on the issue of beach access or the public trust doctrine.  Of the three members appointed by the Governor, no more than two would be from the same political party.  Each member would serve for a term of four years or until a successor is appointed.      

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