For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Haneman, J. Hall, J., concurring in result.
Judgments were entered in the Superior Court, Law Division, in two separate cases, holding, inter alia, that two ordinances as amended (which, for convenience, we shall hereafter refer to as (1) "fence ordinance" and (2) "dune ordinance") and adopted by defendant were constitutional. The separate appeals, limited to the constitutional issues, which were taken to the Appellate Division, were consolidated. Before argument in the Appellate Division, this Court certified the appeals on its own motion, R.R. 1:10-1.
Plaintiffs are the owners of four ocean front tracts of land in the Borough of Beach Haven. The tracts are subdivided into building lots. The first tract is bounded on the northerly and southerly sides by Jefferis and Kentford Avenues respectively and is unimproved. The second tract is bounded by Kentford and Leeward Avenues and upon this tract plaintiffs have erected a residence. The third tract is bounded on the north by Leeward Avenue and on the south by Merivale Avenue. Upon this tract plaintiffs have erected a small two-story frame apartment house. The fourth tract is bounded by Merivale and Nelson Avenue and is unimproved.
On June 13, 1962 plaintiffs erected fences extending oceanward across the beach. On June 18, 1962 defendant razed the fences, leaving the posts lying on the beach. On July 31, 1962 defendant adopted Ordinance No. 62-10 (fence ordinance) which, as amended by Ordinance No. 62-14, provides in pertinent part:
"SECTION 1. Hereafter it shall be unlawful for any person, firm or corporation to erect, to cause to be erected or to maintain on any privately owned beach in the Borough of Beach Haven, east of the
dune line as established by the Borough's engineers, any fence, wall, post, piling, stake, or structures of any sort or which will in any way interfere with or impede any public official, public employee or contractor employed by any public body in the performance of work on any such beach to repair or prevent storm damage, without first obtaining a permit therefor from the Board of Commissioners of the Borough of Beach Haven.
SECTION 2. The permit referred to in Section 1 hereof shall be issued only after public hearing at a regular meeting of said governing body held at least seven days after publication of notice of such hearing in the Beach Haven Times."
Plaintiffs filed suit seeking recovery of damages for the demolition of the fence and challenging the constitutionality of the fence ordinance. Judgment was entered after trial, awarding plaintiffs $300 damages for the fence removal and upholding the constitutionality of the fence ordinance.
At the oral argument before this Court, defendant admitted that plaintiffs had a right under the several ordinances to a permit to erect a fence on their lands from the mean high water mark landward, subject, however, to the condition that the fence be not so designed as to impede or prevent beach protection work, including the passage of vehicles for such purposes. So construed, we conclude that the provision is a lawful and reasonable exercise of police power for the protection of public health and safety. This is especially so in light of N.J.S.A. 40:92-9 which grants the governing body power to protect its ocean and beach front. Cf. United States v. Caltex, Inc., 344 U.S. 149, 73 S. Ct. 200, 97 L. Ed. 157 (1952); Rohrs v. Zabriskie, 102 N.J.L. 473 (Sup. Ct. 1926); Caldwell v. Saul, 5 N.J. Misc. 165, 135 A. 691 (Sup. Ct. 1927); Myers v. State, 4 N.J. Misc. 251, 132 A. 335 (Sup. Ct. 1926); Manning v. Hague, 3 N.J. Misc. 329, 128 A. 375 (Sup. Ct. 1925); Annotation "Zoning regulation prohibiting or limiting fences, hedges or the like," 66 A.L.R. 2 d 1294 (1959). No cross-appeal is taken from the judgment of $300.
The fence ordinance thus disposed of, we come to a consideration of the dune ordinance which constitutes the balance of this appeal.
On April 23, 1963 defendant adopted Ordinance No. 63-4 (dune ordinance) which was amended by Ordinance No. 63-5 and Ordinance No. 64-17. By amendment of the above referred to fence ordinance complaint, plaintiffs also challenged the constitutionality of the dune ordinance. The court below upheld its constitutionality. Summary judgment was also entered against plaintiffs in a separate suit challenging the constitutionality of Ordinance No. 64-17 which amended the dune ordinance.
The amended ordinance reads as far as here material:
An ordinance to Define and Delineate the Beach and Dune Areas of the Borough of Beach Haven, and Establish Regulations for the Use and Protection Thereof, and Providing Penalties for the Violation Thereof.
The Board of Commissioners of the Borough of Beach Haven, in the County of Ocean, do Ordain:
SECTION 1. SHORT TITLE: This ordinance shall be known as the Borough of Beach Haven Beach Protection Ordinance.
SECTION 2. FINDINGS AND DECLARATION:
(a) It has been clearly demonstrated that well established and protected sand dunes, together with berms, beaches and underwater slopes of suitable configuration and of proper grade and height, are a durable and effective protection against high tides and flooding, and against damage by the ocean under storm conditions, and are the natural protections of the coastal areas adjacent thereto, and the State and its subdivisions and their inhabitants have an interest in the continued protection thereof, and in the right to restore them in the event of damage or destruction.
(b) Said dunes are vulnerable to erosion by both wind and water, but primarily by wind, since its attacks against the dunes are sustained for substantial and frequently recurring periods of time whereas, if protected by typical berms, beaches and underwater slopes, the dunes are attacked by water only at infrequent intervals. The best available means of protecting said dunes against wind erosion is by preventing indiscriminate trespassing, construction or other acts which might destroy or damage said dunes, and through the use of native plantings, supplemented by sand fencing and other devices designated to prevent the free blowing of sand and the maintenance of the surface tensions, root accumulations, normal contours and other features found in typical natural dunes.
(c) The immediate dune and beach area is not capable of rigid definition or delineation, or of completely firm stabilization, so that particular sites, at one time free of dunes, may, as a result of natural
forces, become part of the dune area necessary for the continuation of the protection above outlined, and persons purchasing or owning such property do so subject to the public interest therein.
(d) It is the purpose of this Ordinance to define the areas so affected and to establish regulations to assure their continued effectiveness. This Ordinance is declared to be an exercise of the police power in the interest of safety and welfare and for the protection of persons and property.
(e) The erosion of the beachfront during the storm of March 6th and 7th, 1962, has created an immediate and imminent threat and danger to life of persons and property in the Borough of Beach Haven by reason of the destruction of the sand barriers which protect the Borough's oceanfront to the end that it has become necessary to the health, safety and welfare of the Borough to repair, restore, replace or construct protective barriers on both public and private property within the Borough of Beach Haven.
(f) The interference with or the depletion of the beach and sand dunes tends to permit encroachment by the sea and the conditions above recited make it imperative that the governing body regulate and control the removal of sand from the beach or dunes or any other interference with or depletion of the protective barrier on the oceanfront of the Borough of Beach Haven.
Backshore: That zone of the shore or beach lying between the foreshore and dune area, and normally acted upon by waves only during severe storms, especially when combined with exceptionally high water.
Beach: The zone of unconsolidated material that extends landward from the low water line to the place where there is marked change in the material of physiographic form, i.e. dune or bulkhead. Includes Foreshore and Backshore.
Strand: The same area included within the definition of Beach.
Beach-Dune Area: The district set off by this Ordinance, to include the dunes, beaches, strand, backshore and foreshore, and the areas where, according to a normal beach profile, the same would or should exist. The Beach-Dune area, as defined therein has been established by Taylor, Wiseman, Taylor and Sleeper, Consulting Engineers, and constitutes all that area lying eastwardly of the Building Line as hereafter defined.
Boardwalk: This shall include the term 'walkway' and shall mean a walk or promenade of planking built across the dune line or berm(s) to connect the street ends or other property with the open beach. These shall be perpendicular to the western boundary of the dune zone, and in no case shall a wooden promenade parallel to or along the beach be permitted. The ...