I first wrote about this subject in our blog dated May 21, 2018.  The United States Supreme Court denied certiorari on October 1, 2018 to Martins Beach 1, LLC v Surfrider Foundation, _____ U.S. _____, 2018 U.S. LEXIS 5704.  The Court refused to hear an appeal by an owner to overturn a ruling that a beach access path must stay open.

The access to the beach was located near Half Moon Bay, California.  The property never had public access.  The beach could only be accessed by driving down a private road after the payment of a fee.  There was no question that the public owns the portion of Martins Beach below the high-tide line.  After the property was acquired by a new owner, the County demanded that the beach be open to the public year-round.  The basis for demand was the California Coastal Act of 1976.  The petition for certiorari alleged that the physical invasion of private property is a per se taking and that the Coastal Act cannot constitutionally be applied to compel uncompensated physical invasions of private property.  After all, the right to exclude others is “one of the most essential sticks in the bundle of rights that are commonly characterized as property.”  Loretto v Teleprompter Manhattan CATV, 458 U.S. 419, 433 (1982).

In prior cases, the Supreme Court has not hesitated to strike down coercive conditions which violate the Taking Clause.  In Nollan v Cal. Coastal Comm’n, 483 U.S. 825 (1987), the Court struck down the requirement that an easement be granted over their beach front as a condition for a permit to rebuild their house.  The Court reaffirmed the principle in Dolan v City of Tigard, 512 U.S. 374 (1994), where the City required a public-access walkway as a condition to expand a building.  The Court held there must be an “essential nexus” between what the landowner is seeking and the need for public access.  As it stands, the owner of Martins Beach must continue to keep open a money-losing business.  According to the Amicus brief of the California Association of Realtors, there are some 1.5 million acres of coastal land that are affected by the Coastal Act and may require permits to simply lock a gate and protect lawfully owned property.  The Martins Beach case is far from over, the Coastal Act provides that an owner may apply for a permit to close the road.  If that permit is denied, you can be sure further litigation will ensue.

But the Supreme Court has upheld public beach access.  In Stop The Beach Renourishment, Inc. v Environmental Protection et. al., 560 U.S. 702 (2010), the Court held that it was proper for Florida to provide for public beach access when there is beach renourishment since the taxpayer funded sand belongs to and benefits the public.

In New York it is State policy to provide public access to beaches.

Subdivision 4 of Section 912 of New York’s Executive Law, provides that, inter alia, within coastal areas, it is the public policy of the State of New York “to encourage and facilitate public access for recreational purposes.”

In Smith v State of New York, 153 AD2d 737 (2d Dept. 1989), the Second Department held that while a conveyance might have been made of land and beaches around the City of Glen Cove, any such conveyance must comport with the best public use and not be injurious to the public good.  The Court stated in Smith: [E]xclusion of the public from enjoying the area which they have lawfully enjoyed for over 100 years would constitute an impermissible impairment of the public interest.

As was declared in Illinois Cent. R.R. v Illinois (146 US 387, 452-453), “abdication of the general control by the State over lands under the navigable waters … is not consistent with the exercise of that trust which requires the government of the State to preserve such waters for the use of the public. The trust devolving upon the State for the public, and which can only be discharged by the management and control of property in which the public has an interest, cannot be relinquished by a transfer of the property. The control of the State for the purposes of the trust can never be lost, except as to such parcels as are used in promoting the interests of the public therein, or can be disposed of without any substantial impairment of the public interest in the lands and waters remaining” (see also, Marba Sea Bay Corp. v Clinton St. Realty Corp., 272 NY 292, 296; Tiffany v Town of Oyster Bay, 234 NY 15, 20, 21; People v Steeplechase Park Co., 218 NY 459).

A complete essay on the subject will appear on October 23, 2018 in my column “Condemnation and Tax Certiorari” in the New York Law Journal.


Posted in Beach Access, Per Se Taking, Public Trust Doctrine
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