Larrabee, J.c.c. (temporarily assigned).
Plaintiffs sue to test the legality of Ordinance No. 166 adopted by the Borough of Lavallette to establish and regulate a paid bathing beach on the ocean front and the respective rights of the plaintiffs and the borough in the ocean front area.
The plaintiffs include Frederick A. Brindley, George F. Hoffman, Walter H. Purdy and Gertrude Purdy, who own residences in Lavallette which face the beach front, and also 72 other plaintiffs who are residents of Lavallette or own real estate in Lavallette not on the beach front. The Borough of Lavallette is the defendant.
The plaintiffs seek a determination that:
(a) The Borough of Lavallette is not the owner of the lands bordering the Atlantic Ocean.
(b) That title to the ripa maris is in the State.
(c) That plaintiff Frederick A. Brindley is the owner of the beach front adjoining his premises, and that his title extends to the easterly side of Ocean Avenue.
(d) That the titles of plaintiffs Brindley, Purdy and Hoffman, which properties abut Ocean Avenue, extend to high water mark and that they are thereby entitled to the incidents of riparian ownership on tidal waters.
(e) The ordinance does or does not apply to plaintiffs and members of their families using the ocean front for beach and bathing purposes.
(f) The ordinance is illegal in that it deprives plaintiffs of their property rights in violation of the Fourteenth Amendment of the Constitution of the United States, and of Article I of the Constitution of the State of New Jersey.
(g) Money damages and such other relief as may be just.
The ordinance is void because it is discriminatory.
The ordinance provides that no one over the age of 12 shall use any of the facilities of the bathing beach without first having paid the proper fees therefor, which are as follows:
(a) $3 per season, per person, for real property owners, members of families of real property owners, and persons who have rented properties during 1954, or who shall, during that year, rent properties in the borough for a period of five consecutive weeks or longer; and the members of their immediate families; or
(b) $1 per week or lesser period per person for all residents of the Borough of Lavallette, either as owners of real estate, residents of cottages or registered guests at hotels or boarding houses and members of their families;
(c) Persons not falling within the classifications defined in paragraphs (a) or (b) above shall not receive any license whatsoever.
(d) Children under the age of 12 years, who are residents either temporary or permanent in the Borough, shall not be required to pay any fee.
The ordinance is invalid because it discriminates against non-residents. The 1950 act, N.J.S.A. 40:92-7.1, gives the borough power to regulate, but as stated by Justice Scudder in Morgan v. City of Orange , 50 N.J.L. 389 (Sup. Ct. 1888),
"distinctions between inhabitants of our state, based upon no other ground than the place of actual residence, are in restraint of trade, invidious, unjust, and illegal. Ordinances passed in the exercise
of a police power to control the sale of articles within a town or city, and in other matters, must be reasonable."
In Nutley v. Brandt , 12 N.J. Misc. 670 (Sup. Ct. 1934), Justice Case applied the rule to invalidate an ordinance requiring non-residents of the municipality to obtain a permit to distribute circulars and pointed out that although the rule had often been applied to invalidate ordinances adopted under the taxing power, Justice Scudder's statement extended it to the police powers and other matters.
In Jersey City v. Chasan , 81 N.J.L. 315 (Sup. Ct. 1911), it was held unreasonable to require drivers of horse-drawn vehicles in Jersey City to obtain a permit, none being required of three-month residents, and Justice Bergen held the ordinance void for discrimination.
Thus the law is settled that discrimination against non-residents in an ordinance invalidates it, excepting possible special circumstances which would justify the discrimination. No such special circumstances have been shown and Ordinance No. 166 is accordingly declared void.
There are other issues, factual and legal to be determined.
On October 9, 1877 Isaac D. Guyer et ux. sold to the Barnegat Land and Improvement Company, three tracts totalling 466.51 acres of which the first tract includes the area which is now the Borough of Lavallette. The beginning point of said first tract is located, at its southwesterly corner, at the edge of a small creek or thoroughfare that separates what is known as the "Dry Flats" from the main beach and from there it runs as the magnetic needle pointed January 27, 1876.
"(1) along the North line of Michael W. Ortley's land South sixty five degrees fifteen minutes East forty seven chains and ninety four links to the sea; thence (2) Northerly along the sea at low water mark one hundred four chains and seventy eight links to the Southeast corner of a tract of land quit claimed to William H. Miller and Sarah A. his wife; thence (3) along said Miller's south line fifty chains, more or less, to the beginning and Southwest corner of Miller's land; thence (4) Southerly following the bay and several courses South * * * to the BEGINNING."
The Barnegat Land and Improvement Company laid the tract out as a real estate development, and on February 21, 1878 a map was filed in the Ocean County Clerks Office entitled, "Map of Lavallette City by the Sea, Squan Beach, Ocean County, N.J., Fowler & Lummis, C.E. 436 Walnut Street, Phila. Pa." On September 1, 1890 a map entitled "Plan of Lavallette City by the Sea, Ocean County, N.J." bearing no date was filed in the Ocean County Clerk's Office.
Both maps show an area designated as "Ocean Avenue" extending from the north end to the south end of the borough, 100 feet wide and lying west of an unmarked area on the east, which in turn borders on the ocean's edge. West of the area marked "Ocean Avenue" the land is divided into lots and avenues.
There are 24 parallel avenues in the borough which extend Westerly from Ocean Avenue to or toward the bay front. White Avenue is the second and Kerr is the third avenue from the north line of the borough. New Brunswick is the fifteenth and Virginia is the sixteenth avenue from the north line of the borough.
The lots owned by Brindley are lot No. 3 and the northerly rear half of Lot No. 6, Block 2 Section A. George F. Hoffman owns lot No. 1 and the northerly half of Lot No. 5, Block 2, Section A. Purdys own Lot No. 3, Block No. 4 Section C.
Brindley's premises front 50 feet on Ocean Avenue by 150 feet deep and are 50 feet north of Kerr Avenue.
Hoffman's premises front 50 feet on Ocean Avenue by 150 feet deep on the south side of White Avenue.
Purdys' premises front 50 feet on Ocean Avenue by 100 feet deep and are 50 feet north of Virginia Avenue and 100 feet south of New Brunswick Avenue.
The Barnegat Land and Improvement Company proceeded to sell lots at Lavallette, and the deed made by the corporation to Lennon dated March 25, 1886, in describing the premises thereby conveyed, which included the Brindley and Hoffman lots, referred to "A Plan of Lots of the ...