Plaintiffs, citizens and taxpayers of the City of Ventnor City, instituted against the city an action in lieu of prerogative writ to set aside Ordinance No. 2-1968, providing for the sale of certain lands and to enjoin the sale of said lands. The city counterclaimed, seeking a declaratory judgment declaring that the ordinance is valid and that it may sell the lands pursuant to said ordinance.
Ventnor City borders the Atlantic Ocean, which is to its south. It is now governed by a commission form of government, but from its incorporation and up to and including the enactment of the 1968 ordinance, it enjoyed a mayor and common council form of government.
Ordinance No. 2-1968 provides in part as follows:
"BE IT ORDAINED BY THE COUNCIL OF VENTNOR CITY, NEW JERSEY, THAT:
SECTION 1. There be constructed between Richards and Fredericksburg Avenues along the beachfront, oceanfront jetties and that upon the accretion of sufficient beach area, or earlier contingent upon such accretion of beach area, of at least 125' for purposes of public resort and recreation between the boardwalk and the mean high water line on the ocean side of the boardwalk, that the existing street ends and utilities be extended approximately 125' and such lands that are then no longer needed for public use, lying between the existing bulkhead and boardwalk and between Richards and Fredericksburg Avenues, be bulkheaded, filled and offered for public sale for residential purposes consistent with present zoning requirements and upon such terms and conditions as shall be subsequently set forth by resolution of City Council.
SECTION 2. All such stated improvements shall be in accordance with the plans and specifications to be prepared by the City Engineer and duly approved by Council."
A boardwalk or wooden promenade supported by piling or piers parallels the beach along the entire length of the city. The city's easterly boundary is Jackson Avenue. Its westerly boundary is Fredericksburg Avenue. The northern line of
the boardwalk is 425 feet south of Atlantic Avenue, which is parallel to the boardwalk.
Jackson Avenue and all other streets mentioned hereinafter, except Atlantic Avenue, are generally at right angles to the boardwalk and Atlantic Avenue. Richards Avenue is 30 blocks from Jackson Avenue and 12 blocks from Fredericksburg Avenue. From Jackson Avenue to 62 I/2 feet east of Richards Avenue, private houses are built practically up to the boardwalk with a wooden bulkhead only a few feet from the northern side of the boardwalk. Between Richards Avenue and Fredericksburg Avenue the bulkheads are aligned 125 feet north of the northerly line of the boardwalk. The 125 feet between the bulkhead line and the boardwalk is beach or strand. Its appearance and use is and always has been precisely the same as the rest of the beach area under and south of the boardwalk. At the present time the ocean comes up to and under the boardwalk, washing over this area at full tide. It is this 125 feet strip which the governing body contemplates selling, pursuant to the terms of the ordinance.
An adjudication with respect to the validity of the ordinance, or the right of the municipality to sell all or any part of the strip, ordinarily might be considered as premature because the condition for sale might not arise. However, the municipality anticipates the expenditure of large sums of money (over $200,000) for the purpose of securing alluvial accretion of the beach. This will be accomplished through the construction of jetties or groins in order to satisfy the condition precedent stipulated by the ordinance. Thus, before the sale of the area in question, the city seeks a favorable judgment of this court so that these moneys will not be expended in vain. Therefore, the controversy is currently justiciable and not premature. For this reason it filed its counterclaim for a declaratory judgment.
A determination of the questions which must be answered requires that legal as well as factual history be examined.
By an act approved April 26, 1894, N.J.S.A. 40:179-98 et seq. (Section one), any city in this state located on or
near the ocean, and embracing within its limits or jurisdiction any beach or ocean front (which admittedly included Ventnor City) was authorized to open and lay out on and along such beach or ocean front a public park or place for public resort and recreation, and to acquire lands for such purpose by purchase and condemnation. N.J.S.A. 40:179-99 (Section two) provides that when the governing body of any such city shall determine to open and lay out such a park, it shall first cause the interior or inland line of the same to be established and suitably marked upon the ground, and cause a description of the same to be filed in the office of the city clerk of said city, there to remain of record; "and such interior or inland line shall not be ...