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Implementing Municipal Public Access Plans
Acquisition of Lands

Source: NJ Department of Environmental Protection, Division of Coastal Resources, Waterfront Public Access: Design Guidelines by The Fellows Read Organization, Trenton, NJ, 1989, print

Chapter 3 – Acquiring Public Access

Methods for Acquiring Access
The right of the public to utilize the waters of New Jersey is well-established. Every tidal water body carries with it an obligation for public accessibility. The techniques or mechanisms for meeting this obligation are somewhat more complicated. A variety of methods may be employed to convey and protect the public’s right and ability to use and enjoy waterfront lands. Many of the methods utilized in New Jersey involve legal aspects of real estate. Another approach to providing adequate public access is through regulatory mechanisms. The techniques most frequently considered in New Jersey are briefly described in this chapter.

Real Estate Methods
Fee Simple Acquisition means the purchaser acquires all the legal rights of property. A public entity may acquire ownership in fee simple by purchasing the land from a willing seller or through the exercise of eminent domain. In either case, the public must pay fair market value for the land.

Fee simple ownership may also be obtained through dedication of land, at no cost to the public, or at a reduced price. A seller may choose to offer land in one of these two ways, to either a public entity or a non-profit organization, in exchange for other benefits, such as tax credits.

Ownership of waterfront land in fee simple by a public or non-profit entity is the most effective way to secure public access along the waterfront. Full ownership of the land offers the most flexibility for providing access. However, this method of acquisition, unless through dedication or reduced cost, is also the most expensive.

Property Easements secure a limited legal right to utilize some aspect(s) of a piece of land. While fee simple confers all of a parcel’s legal property rights, an easement affords its owner the right to enjoy one element of the property, such as the right to walk across it.
Easements may be acquired though the same means as fee simple acquisition. An easement may be obtained through eminent domain, an agreed purchase or through dedication. A particular type of dedication is known as the “conservation easement.” A property owner may offer an easement on his/her land to a public or non-profit entity in exchange for the assurance that the land will only be utilized in a specific manner, such as farmland or grazing livestock. The conservation easement may be for the entire parcel of land or for a portion of it. In either case, flexibility to use the land is limited to the specific terms. If those terms specify that the land is to be utilized for public access or public recreation, this type of easement could be as valuable as fee simple ownership. Easements “run with the land” (they are not removed when the land is sold) and may be put in place in perpetuity. Acquisition of an easement is generally less expensive than fee simple and may be very effective in securing public access.

Long Term Leases transfer the legal property rights from the original owner to the purchaser for a specified period of time. The leaseholder may then use the land however he/she chooses, but only for the term of the lease.

Long term leases are generally less expensive than perpetual easements and may be used to establish accessways for immediate use.  Leases may also provide a short term public access solution while a longer term method is being developed.

 

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Last Updated: March 21, 2014