Court rules on land created by beach replenishment

LONG BRANCH, N.J. - The New Jersey Supreme Court on Tuesday upheld a lower-court ruling that a beachfront-property owner is not entitled to compensation for land created by a publicly funded beach-replenishment project.

In its ruling, the high court agreed with the appellate finding that the City of Long Branch does not owe the estate of Jui Yung Liu additional payment for about 930,000 square feet of land adjacent to the merchant's former boardwalk business that was created during a 1999 beach-replenishment project conducted by the Army Corps of Engineers.

One activist called the high court's ruling highly significant for the future of beach access and sand replenishment along the Jersey Shore.

The Liu property, seized by eminent domain in 2001, was part of a project to redevelop much of Long Branch's beachfront resort area. Liu and his wife, Elizabeth, challenged the $900,000 that Long Branch offered them in 2001 for their boardwalk property.

Liu died in 2002, but after a 12-week trial in Superior Court in 2006, the estate was awarded $1.45 million for the property where the family had operated several businesses, including restaurants, since the late 1970s.

The Lius' lawyer, Peter H. Wegener, appealed the award in 2008, saying the family should be compensated additionally for furnishings and equipment inside the boardwalk store and for a "dry sand" area that had been created on the landward side of their building. The previous court decision, however, was upheld by the Appellate Division of Superior Court before Wegener decided to file the case with the state Supreme Court in 2009.

In its ruling on Tuesday, the Supreme Court said the original trial court in the eminent-domain action had properly determined that the "expanded dry beach (previously tidal flowed) that was produced by the government-funded beach-replenishment program fell within the public-trust doctrine and was not the property of the upland owners, the Lius."

"Therefore, the Lius were not entitled to compensation for property they did not own," the ruling said.

The court cited the legal principle that the state holds "ownership, dominion, and sovereignty" over tide-flowed lands "in trust for the people," and traces its origins to Roman jurisprudence. The public-trust doctrine was common law in England, where the king held title to tide-flowed lands. After the American Revolution, title to those lands in New Jersey passed from the king to the state. The state, therefore, owns all lands that are flowed by the tide up to the mean high-water line or mark.

But Wegener said Tuesday the ruling leaves the state open to many interpretations of where that mean high-water line really is on any given beachfront property.

"What happens when a nor'easter comes in over the winter and moves that line by accretion?" Wegener said. "Once you take that position, I can't see that you can say for sure where that mean high-water line is."

Wegener, however, said that because of a recent U.S. Supreme Court ruling regarding a Florida beach property and a decision not to interfere with rulings made by individual states, he does not plan to appeal Tuesday's ruling.

Environmental and beach-access advocacy groups had closely followed the case.

"This is a hugely significant decision in terms of the public's access to the beaches and shore of New Jersey," said Tim Dillingham, executive director of the American Littoral Society, a Sandy Hook-based nonprofit coastal-advocacy group. "I think the decision has far-reaching effects on the entire 127 miles of our coast with regard to future beach replenishment. This decision makes it clear that the public owns the land on which beach-replenishment projects are done."

Without the ruling, there would continue to be questions about precisely who owns the land created and maintained by government-sponsored beach-replenishment projects, said Ocean Township lawyer James G. Aaron, who represented Long Branch in the Supreme Court case.

"I would say that if the court had ruled the other way, it would have become incredibly difficult for Shore municipalities because of the increased cost of beach replenishment," Aaron said. "Towns just wouldn't be able to do the projects if property owners had to compensated for land that wasn't even there before."

John Weber, northeast regional manager of the Surfrider Foundation, a nonprofit beach-environmental organization, agreed.

"The Supreme Court referenced the public-trust doctrine, and that is the premise of what needs to guide a lot of decisions that are made and will be made in the state with regard to beach access," Weber said. "Moving forward, I think we needed that clarification."