Public Access
2. Case Study: Atlantis Beach Club - Diamond Beach
In August 2002, and heard in May 2004, a case brought by the
Raleigh Avenue Beach Association, against Atlantis Beach Club,
Seapoint Village Association and the State of New Jersey in
Lower Township.
It was decided on June 3, 2004.
The issues were with respect to public access to a then private beach
area (Atlantis) that had been restricting access to its beaches.
The area in question extended from the southern border of Wildwood Crest
at Jefferson Avenue through Atlantis to Atlantis's southern border.
The property was open to the public until 1996.
At that time, Atlantis began charging for beach passes to access
its beaches. These passes were a minimum $300 seasonal rate
for 6 passes. By 2002 the rate was $700 for 8 passes minimum
or $10,000 for a lifetime membership.
Seapointe, to the north of Atlantis, provides lifeguards and public
restrooms, showers and parking. It has no mandatory minimum,
a $2.50 per day fee, $10 a week, or $40 a season,
as permitted through the DEP since 1987.
It is currently seeking to raise the rates to $3, $15, and $50
respectively.
Atlantis placed a sign on the Raleigh Avenue entrance stating:
"FREE PUBLIC ACCESS ENDS HERE/MEMBERSHIP AT GATE."
The lawsuit was an attempt to rectify this access issue.
The ruling was based on vertical (perpendicular to the ocean)
and horizontal (parallel to the ocean) access.
In July 2003 Atlantis lifeguards actively restricted access to
the beach to the public, stating users were
"trespassing and robbing members of Atlantis' services."
A court order in November, 2003 stated that Atlantis could not
restrict horizontal access to an area 3 foot of dry sand above
the high water line.
The order limited vertical access at Raleigh Avenue,
"precluding public use of the boardwalk"
but requiring a path be available along the Seapoint property boundary.
Specifics were left up to the DEP. Additionally, a
"commercially reasonable fee" was allowed for for the
use of Atlantis' services.
The 2004 suit was an appeal, in part, sought to establish what
was "commercially reasonable".
The court found, using Seapoint's guidelines,
that N.J.A.C. 7:7E-8.11(b)4 states the fees must be no greater
than the facility is required to maintain and operate,
and that there should be a daily, weekly, monthly, and seasonal
fee available.
Atlantis' current fee structure violates this provision.
It found that approval of fees is contingent on Atlantis providing
"customary lifeguard services comparable to that provided
by public entities, regular beach maintenance, including cleaning
and trash pickup, and outdoor showers."
The court reversed the restrictions on horizontal and vertical access,
and on intermittent use of upland sands,
and required the DEP to immediately set an appropriate fee structure.
The opportunity for Atlantis to request the fees be changed
appropriately through the DEP was permitted in the future.
For the full court document (as a PDF),
please visit the Citizens Right to Access Beaches
Web site (www.crabnj.com/atlantisdecision.pdf).
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