Public allowed to place beach chairs on priivate beaches at waters edge

Court agrees with Bubis

By NANCY SHIELDS
COASTAL MONMOUTH BUREAU

A state appellate court has ruled that an 85-year-old Loch Arbour resident does not have to keep moving but rather can sit in her beach chair on the public wet sand on the private beach across the street from her home.

Sophie Bubis has been in various stages of litigation for 13 years on public access issues after Jack and Joyce Kassin bought a former commercial beach club in 1995 to use for their family and friends.

Bubis had frequented that beach when it was part of the private community club. When she was cut off and forced to use the Loch Arbour municipal beach just to the north instead, she started fighting for access.

In the latest decision, the appellate panel ruled that Bubis was right when she sat in her beach chair near the water below the median high water mark on the Kassin beach one day in June 2004.

Kassin had her arrested that day.

Three years later, now retired Superior Court Judge Alexander Lehrer ruled the public had a right to use any of the state-owned land below the high-water mark for recreation but those activities were restricted to walking, fishing, surfing and resting for short periods.

Lehrer, however, did not allow Bubis to sit in her chair in the foreshore and sunbathe on the otherwise private beach.

But the appeals court, in a new opinion out this week, found that Lehrer erred in imposing significant limitations on the public's right to use the area below the mean high water mark.

"The appellate division got it right and correctly applied the Public Trust Doctrine to the foreshore of that beach," said Leonard Needle, Bubis' longtime attorney in the litigation. "Kassin's property does not include the foreshore, and he has no right to control activities of people in the foreshore."

The appeals court, on the other hand, also made it clear that the public did not have a right to any area of the Kassin's private beach land above the wet sand. Lehrer had given the public a six-foot-wide swath of sand above the high water mark to walk and do recreational activities, but again, not sit for any length of time.

The Kassins did not appeal Lehrer's decision on the extra six feet of dry sand, and the higher court said it would leave that part of Lehrer's ruling alone. Still the judges made it clear the public does not have a right to use the upland sand area if a private owner uses the beach for recreational uses rather than commercial reasons.

"All Sophie wanted to do was sit near the water in the wet sand in a beach chair," Needle said. "She wasn't asking to sit on the dry sand."

The judges noted that Bubis and the public can sit in a chair in the foreshore but cannot in any way block a private lifeguard's view if that prevents the guard from doing his or her job.

The court took issue with another aspect of Lehrer's ruling that no one could sit or rest in a 200-foot-wide area on the wet or dry sand directly in front of the private owners' cabana. The court struck that restriction down as it applied to the 200 feet in the foreshore where the court said the public cannot be restricted regardless if it is directly in front of a cabana.

"When he (Lehrer) did that, no resting in a 200-foot area, he violated my civil rights," Bubis said. "I have my rights and he violated (them)."

Loch Arbour is a tiny village. The Kassin beach or former commercial club has about 650 feet of frontage across the ocean. Loch Arbour's municipal beach just to the north has about 350 feet of frontage on the ocean.

The Kassins allow the municipal beach to use a 100-foot section at the northern end of the private beach on weekend days when the municipal beach is overcrowded.

In a recent appellate decision on another issue between the two parties, the judges said that Kassin had done enough in lowering sand berms he put up for privacy to give Bubis an ocean view from her home.