The recent arrest of a surfer in Belmar, New Jersey has highlighted the need for a clear understanding of New Jersey's beach access laws and regulations. Below, Surfrider has compiled an overview of relevant law concerning beach access and beach fees (“badges” or “tags”) in New Jersey.
This overview aims to serve as a helpful resource for both surfers and the broader beachgoing community. We hope it will inform discussions on improving beach access and equity in our state. However, we note that this is a brief summary in regards to a complex area of law, and does not constitute legal advice. While this overview focuses on access rights based on the public trust doctrine, it does not cover all potential bases for public access rights.
For those seeking more information, we recommend "A Practical Guide to Beach Access and the Public Trust Doctrine" by the Urban Coast Institute at Monmouth University. In creating this overview, we've drawn from that helpful resource.
NEW JERSEY BEACH ACCESS RIGHTS
New Jersey has strong public beach access rights, rooted in common law (also known as case law), and related protections codified in State Statute. These rights originate from the public trust doctrine, a legal doctrine originating in ancient Roman times in which the public rights to tidal waterways and their shores are held by the state in trust for the benefit of all people.
Multiple New Jersey legal cases over the years have recognized the public’s right to access New Jersey’s beaches for recreational purposes (see case details below). The New Jersey Supreme Court has held that, pursuant to the public trust doctrine, the state’s tidal water bodies are accessible to the general public for navigation, fishing, and recreation, including bathing, swimming, and other shore activities.
Public trust rights in New Jersey’s tidelands extend up to the mean high water mark – the area generally known as the wet sand – and also to artificially-filled beaches of the state (N.J. Rev. Stat. § 13:1D-150(b). If a municipality accepts federal funding for beach replenishment projects, as almost all in New Jersey do, the public has the right to reasonable public access to those beaches. Additionally, the public may gain access through, and use the dry sand areas on privately owned beaches, as reasonably necessary to exercise their rights to use the tidal water bodies.
The New Jersey Department of Environmental Protection (“NJDEP”) is charged with protecting the public’s rights to meaningful beach access. As provided by statute, “[NJDEP] has the duty to make all tidal waters and their adjacent shorelines available to the public to the greatest extent practicable, protect existing public access, provide public access in all communities equitably, maximize different experiences provided by the diversity of the State's tidal waters and adjacent shorelines, ensure that the expenditure of public moneys by the department maximizes public use and access where public investment is made, and remove physical and institutional impediments to public access to the maximum extent practicable.” (N.J. Rev. Stat. § 13:1D-150(e), emphasis added).
NEW JERSEY BEACH ACCESS FEES
Against the backdrop of strong public trust rights, however, in 1955, the New Jersey Legislature passed the Municipal Beach Act (generally known as the “Beach Fee Statute”), granting municipalities the authority to charge a beach fee at publicly or privately-owned beach or waterfront areas for access to the beach and bathing and recreational facilities, in order to fund operations, improvements, and maintenance of beachfront recreational facilities and safeguards, such as, but not limited to, the cost of providing boardwalks, restrooms, lifeguards, parking, waste management, and beach cleaning. By statute, children under 12 cannot be charged for access; and, municipalities may, by ordinance, provide exemptions or reduced fees to other groups of people such as people who are 65 or older (N.J. Rev Stat § 40:61-22.20).
The New Jersey Supreme Court subsequently upheld this municipal authority to charge a reasonable beach access fee in the 1972 case of Borough of Neptune v. Avon-By-The-Sea, so long as the fee is legitimately based upon the jurisdiction’s costs of operating and maintaining the beachfront (including for example, the cost of providing restrooms, lifeguards, and beach cleaning), and so long as the fees do not discriminate between residents and non-residents. (see additional case details below).
Today, the Municipal Beach Act is carried out by the NJDEP, whose regulations further provide how municipal beach badge programs may operate. Importantly, NJDEP regulations state that, “no fees shall be charged solely for access to or use of tidal waterways and their shores.” (N.J. Admin. Code § 7:7-16.9(v), emphasis added).
New Jersey municipal beach badge programs run during the summer, though there are significant differences between them, including exact dates and times badges are required, who is required to obtain one, and how much badges cost. Additionally, municipalities differ in terms of where and how they designate beach areas for particular purposes – beaches for swimming, beaches off-limits for swimming, beaches for surfing, beaches off-limits for surfing, beaches that have lifeguards, and beaches that are not guarded.
While municipalities like Belmar, Ocean County, Brick Township, and Bay Head require surfers to purchase beach badges, some, including Mantoloking and Bradley Beach, do not, so long as the individuals are strictly walking to and from the water to surf. Mantoloking Municipal Code Section § 10-3.4 provides that “surfers, kayakers, paddleboarders, and fishers using only the beach area or waters covered under the public trust doctrine at Mantoloking are not required to obtain Borough beach badges during such time as they are actively engaging in surfing, kayaking, paddleboarding and/or fishing. Surfers shall not pay any additional fee for a surfing permit or badge. Surfers are not required to display permits or decals on surfboards.”
According to the Bradley Beach Municipal Public Action Plan (page 7), “individuals engaged in fishing, kayaking, SCUBA, stand up paddle boarding, and other recreational uses are permitted between 2nd and 3rd Avenues, and that individuals who walk directly to the ocean to engage in those uses (and do not stop on the sand), do not need beach badges.”
These local rules comport with the NJDEP’s public access regulations noted above requiring that no fees shall be charged solely for access to or use of tidal waterways and their shores (N.J. Admin. Code § 7:7-16.9(v).
BELMAR, NEW JERSEY 2024
These two related issues — the public’s access rights under the public trust doctrine and beach access fees — came to a violent head in the August 20, 2024 arrest of a surfer in Belmar. Interestingly, both the surfer and the police officer in the confrontation referenced some of the legal points laid out in this blog – illustrating the complex and conflict-prone state of regulation in New Jersey on this topic.
On the one hand, New Jersey law recognizes expansive public trust rights which NJDEP is mandated to promote, protect, and safeguard; on the other, municipalities are authorized to charge a fee for beachfront recreational services, and this has led to varying local rules with a confusing patchwork of badge prices, user categories, dates and hours badges are required, and locations where badges are required (which may be based on lifeguard coverage).
Additionally, beach badge prices in New Jersey have become a serious barrier to low- and middle-income individuals and families, unfairly discriminating against them for a public resource that is supposed to be held for everyone’s enjoyment. As a result, many people are unable to visit the beach, or only visit when lifeguards are off duty (and fees may no longer apply), exposing them to higher risks of drowning. This contravenes NJDEP’s mandate to promote, protect, maximize, and safeguard equitable beach access.
The Surfrider Foundation fundamentally believes that the world’s beaches are public resources that should be open, free, welcoming, and safe for all people. We will continue working with our network of community supporters and local and state leaders who are interested in making New Jersey’s beaches more accessible, equitable, and welcoming for all people. If you or a group you represent are interested in discussing this issue further, please reach out to Matt Gove, Surfrider’s Mid-Atlantic Policy Manager, at mgove@surfrider.org.
NEW JERSEY BEACH ACCESS AND BEACH FEES TIMELINE
Nonexclusive list of Relevant New Jersey Case Law and Legislation/Statutes.
1787: New Jersey Statehood
1821: Arnold v. Mundy (6 N.J. L. 1 (1821))
The New Jersey Supreme Court found that the State, and not the owner of the adjacent upland, has sovereign authority over public trust waters and lands, not for its own use, but to protect them for the use of its citizens.
1929: Bradley Beach became the first New Jersey municipality with beach badges.
1955: The Municipal Beach Act (NJ Rev Stat § 40:61-22.20)
This legislation that we know today as the “Public Access Rule” or “Beach Fee Statute” allowed New Jersey municipalities to charge a reasonable fee to those using a public beach.
1972: Borough of Neptune v. Avon-By-The-Sea (61 N.J. 296 (1972))
The New Jersey Supreme Court recognized that the public’s rights under the public trust doctrine are not limited to navigation and fishing but extend to recreational uses, including bathing, swimming, and other shore activities. The Court also upheld municipalities’ authority to charge beach user fees, so long as the fee is legitimately based upon the jurisdiction’s costs of operating and maintaining the beachfront, and so long as the fees do not discriminate against non-residents, by for example, charging higher prices.
1981: Matthews v. Bay Head Improvement Association (95 N.J. 306 (1984))
The court acknowledged that the Public Trust Doctrine includes the public’s right to use privately-owned upland dry sand areas “as reasonably necessary” to exercise their public trust rights in the ocean and tidelands. The public’s right to access upland dry sand is not limited to municipally-owned property (recognized in Van Ness v. Borough of Deal, 1978) and extends to private property when it “is essential or reasonably necessary for enjoyment of the ocean.” The extent of such access depends on the circumstances in each scenario.
1989: Slocum v. Borough of Belmar (238 N.J. 179 (1989))
In this case, the Borough of Belmar was sued for unreasonably and discriminatorily collecting beach fees in excess of the Borough’s actual costs for improving, operating, and maintaining its beaches. The Superior Court’s opinion provides guidelines for how municipalities must accurately set their beach fees to only offset legitimate beachfront related expenditures, based on clear and adequate records of beachfront expenditures. The Court concluded Belmar’s beach admission fees were unreasonable, arbitrary and discriminatory, and were required to be amended for the following summer season. This case also confirms that municipalities are trustees of the beaches within their boundaries and must operate and maintain those beaches for the benefit of all members of the public.
2005: Raleigh Ave. Beach Association v. Atlantis Beach Club (185 N.J. 40 (2005))
The courts found that the Public Trust Doctrine gave the public the right to access and utilize a 100% privately-owned upland beach, and that the NJDEP had the authority to require the beach club to set reasonable fees for the public. The Court applied factors it established in Matthews v. Bay Head Improvement Association, discussed above, in considering the circumstances and reaching this .
2019: New Jersey Public Trust Doctrine Act (NJSA 13:1D-150)
By passing Senate Bill 1074, the NJ Public Trust Doctrine Act, into law, the Murphy Administration codified the public trust doctrine and New Jersey case law into State law. The bill codified that it is the State’s obligation to ensure the public has meaningful access, "to use and enjoy the State's tidal waters and adjacent shorelines for navigation, commerce, and recreational uses, including, but not limited to, bathing, swimming, fishing, and other shore-related activities." This Surfrider Foundation blog has additional background details on this bill.