Towns up and down the New Jersey Shore are pressing oceanfront property owners to sign a Deed of Dedication and Perpetual Storm Damage Reduction Easement (Easement), asserting that the United States Army Corps of Engineers requires these Easements as a prerequisite to performing dune and beach restoration.  Here are a few comments on the proposed Easement recently posted on Brick Township’s website.

1. Public vs. Private Beach – Oceanfront homeowners in Brick Township typically have title that runs to the mean high water line, and traditionally this has been treated the same as all other privately-owned property in Brick Township.

a.  Public Trust Doctrine

In New Jersey, land flowed by the tides is subject to the public trust doctrine, a common law principle dating back to ancient Roman times.  As interpreted by New Jersey Courts with regard to oceanfront lands, the public has a right of access to, and cannot be excluded from, the “wet sand” (area between the mean high and mean low water lines) and the water area itself.  “In addition, limited use of the upland owner’s dry sand is permitted under the public trust doctrine when it is ‘essential or reasonably necessary for enjoyment of the ocean.’”  Long Branch v. Liu, 203 N.J. 464, 475 (2010), quoting Matthews vs. Bay Head Improvement Assn., 95 N.J. 306, 325 (1984).  Other than such limited incidental use, the public may generally be excluded from the privately-owned dry sand beach in residential areas.

The mean high water mark is generally the boundary line that divides private ownership of the dry beach for public ownership of tidally flowed lands.  That boundary line is not fixed, but fluctuates over time through processes known as accretion and erosion respectively, the gradual enlargement or contraction of the dry sand beach.  By contrast, the sudden and perceptible loss or addition to the land by the action of the water or otherwise, a process known as avulsion, does not result in the shifting of the property line.  In Long Branch v. Liu, the Supreme Court of New Jersey was called upon to decide whether the enlargement of the beach through an Army Corps of Engineers shoreline protection project should be deemed to extend the privately-owned beach to the new high water mark.  The Court said no:  the expansion of the shoreline through a government funded beach replenishment project constitutes avulsion and because the newly created beach is on land the State already owned (i.e., lands formerly seaward of the mean high water line), these lands fall within the public trust doctrine.

The bottom line is that if the shore protection project in front of a homeowner’s property will extend the width of the beach seaward of the traditional mean high water line, that new beach area will be owned by the State and subject to the public trust doctrine.  In this regard, it is irrelevant whether the easement a homeowner signs makes reference to the public trust doctrine or not.

b. Easement for Public Beach

Second, the Easement specifically gives the government the right to “[c]onstruct, preserve, patrol, operate, maintain, repair, rehabilitate and replace a public beach . . . together with appurtenances thereto . . .”  The Easement also gives the government right to “perform any other work necessary in incident to . . . the Manasquan Inlet to Barnegat Inlet Storm Damage Reduction Project together with the right of public use at access.”  (Emphasis supplied).

In other words, even if there were no such thing as the public trust doctrine, by the terms of Easement any beach area in front of a homeowner’s property would become a “public beach”, subject to “the right of public use and access”.

2. Temporary Structures – The Easement would also give the government the right to “[e]rect and remove temporary structures.”  While the apparent intent may be to allow temporary structures incident to the dune construction work, the language is not so limited.  For example, a portable restroom facility installed each Memorial Day and removed each Labor Day would be a “temporary structure.”  Such temporary restroom structures would also enhance the “right of public use and access” granted by the Easement, and could be regarded as “appurtenances” to a “public beach” as allowed by the Easement.  On the other hand, this provision may be mitigated by paragraph 6, which states:  “Structures not part of the project are not authorized.”  Apparently this refers to the Barnegat Inlet Storm Damage Reduction Project, as defined in the December 30, 2003 Chief’s Report issued by the Department of the Army.  Of course, if the intent of paragraph 6 is to exclude public restrooms, boardwalks, roads, parking areas, concessions and the like, the Easement could easily be drafted to come right out and say so.

Also, the Easement only governs what can occur on the homeowner’s property and, as stated above, the newly formed beach area east of the former mean high water line will be State-owned.  Nothing in the Easement limits the government’s use of this newly-created State-owned land to structures that are part of the “project”, and the Easement would not preclude the government from putting temporary or permanent structures on that land.

3. Assignable Easement – The Easement states that “in the event that the Township of Brick or the State of New Jersey shall become merged with any other geo-political entity or entities, the easement granted hereby shall run in favor of the surviving entities.”  That provision seems reasonable.  The Easement also provides that it is “irrevocable, assignable, perpetual and permanent.”  While it may be reasonable for the Township or State to have the right to assign their rights to another governmental agency, as worded the government could decide to close a future budget gap by a lease or sale (both of which are types of assignment) of some or all of their Easement rights to a private party.

4. Other Issues

• Land area subject to the easement – While Brick Township is in the process of establishing a “dune line”, that line has not yet been formally established or surveyed.
• Consideration of Easement in assessing value – While a “whereas” clause states that the Township shall consider the Easement in establishing the full assessed value of a property for real estate tax purposes, the provision is vague and appears only in a “whereas” clause as opposed to in the operative provisions of the Easement.
• Perpetual and permanent easement – While the Easement may be released, upon request, if the Project does not begin by September 30, 2025, there is no provision providing for abandonment of the easement should the government determine not to reauthorize the project in the future.
• Private dune overwalk structure – The Easement “reserves to the Grantor the Grantor’s heirs, successors and assigns the right to construct a private dune overwalk structure in accordance with any applicable Federal, State or local laws and regulations, provided that such structures shall not violate the integrity of the dune in shape, dimension or function.”  Yet there is nothing in the Easement that precludes the government from adopting law or regulations that would prohibit, or make it impractical, to construct such an overwalk structure.  Also, the Easement only reserves the right to construct an overwalk structure on the homeowner’s property.  If, for example, the new dune will extend east of the former mean high water line, nothing in the Easement gives the homeowner the right to construct an overwalk onto the newly-created State-owned dune area.
• Elimination of all other rights in the Easement area – The provision allowing the government to limit public access to the dune area, together the right to remove all vegetation, and the Grantor’s agreement “not to grade or excavate within the Easement area or to place therein any structure or material other than a dune walkover” could be used to prevent a property owner from planting or maintaining dune grass or doing anything whatsoever in the Easement area.
• Municipality to maintain beach – While non-objectionable, this provision guarantees very little.
• Character of property – The Easement provides that “nothing herein is intended or shall be deemed to alter the boundary lines or setback lines of the Property” and that “to the extent allowed by applicable law, the Lands burdened by the easement herein described shall not be excluded from the calculation of the minimum square footage requirement when construing applications under the Zoning Ordinance of the Municipality.”  While these provisions are to the homeowner’s advantage, the wording could be strengthened by eliminating the qualifications.
• Enforcement at the discretion of the Grantee – The Easement provides that enforcement of the Easement is at the discretion of the Grantee and that any forbearance by the Grantee in exercising its rights in the event of a violation by Grantor shall not be deemed a waiver by Grantee in the future.  Again, while unobjectionable, why not make that provision mutual?  That way, for example, any delay by the homeowner in seeking to put in a dune overwalk structure would not be deemed a waiver of the right to do so.
• Severability provision – The Easement provides that if any provision of the Easement or its application to any person or circumstances is found to be invalid, the remainder of the Easement and its application to other persons and circumstances would not be affected.  Such severability provisions are common and not per se objectionable.  As a practical matter, however, the provisions in the Easement that reserves rights or benefits to the Grantor may be more likely be held invalid in future years than the provisions benefiting the government.

5. Caveats – We have all heard public officials say that all the government wants to do with these Easements is construct the dunes and extend the beach, and that the government is not looking to put in boardwalks, parking, bathrooms or anything else.  This is not intended to question anyone’s sincerity or to suggest that anything in the foregoing “parade of horribles” is likely to come to pass.  But elected officials come and go; political winds shift.  An Easement that is “irrevocable”, “permanent”, and a “servitude running perpetuity” will last a long time.