first-year law review

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Nov. 7 Property: Dedications and the Public Trust Doctrine

So let’s look at dedications a little more before moving onto the public trust doctrine. I learned something yesterday that put some of my concerns about dedications to rest. A city can’t just ask for a dedication. There has to be some reason that the city is concerned about the development—maybe there will be a lot of people move in and there isn’t the infrastructure in place, or maybe some housing will be razed to make room for the new office building. If there is a reason, the dedication has to have a logical nexus with the development’s accompanying problem and there has to be rough proportionality between the dedication and the proposed development. Further, the dedication the city asks shouldn’t be related to the project as a whole, but rather the concern they have. For example, Say an office building will be built which will take the place of some low-income housing. The city is concerned that they don’t have more low-income housing for those displaced so they require land which is worth a certain percentage of the proposed building. The value of the land is much more than it would cost to provide the low income housing. Such a dedication probably wouldn’t be upheld because the value is compared to the development and not the city’s concern.


We now turn to the public trust doctrine. Briefly stated, the public trust doctrine says that the state is the trustee for the state’s navigable waterways and the land underneath the water to the high-water mark. The state is the trustee for the public. In one case, the Supreme Court of New Jersey expanded the public trust doctrine to include not only the “wet sand” but the dry sand (including rights of access) so that the public can actually exercise their rights as the public. The court held that private land isn’t immune from a possible right of access to the foreshore for swimming or bathing purposes, nor is it immune from the possibility that some of the dry sand may be used by the public incidental to the right of bathing and swimming. They held this so that the rights of the public wouldn’t be extinguished. So thanks to the public trust doctrine, we can all enjoy the ocean, lakes, and beaches.  There will be more on the public trust doctrine later.


November 8, 2006 - Posted by | Property

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