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Borough of Neptune City v. Borough of Avon-By-The-Sea

Decided: March 8, 1971.

BOROUGH OF NEPTUNE CITY, ET AL., PLAINTIFFS,
v.
BOROUGH OF AVON-BY-THE-SEA, DEFENDANT



Simmill, J.s.c.

Simmill

Defendant Borough of Avon-by-the-Sea (Avon) is a municipality bordering on the Atlantic Ocean. It owns the beach, boardwalk and other facilities east of Ocean Avenue, the street which comprises an oceanview drive and which runs through Avon's entire length, a distance of some seven blocks. Avon extends westerly to approximately the right of way of the New York and Long Branch Railroad Co., some seven blocks from Ocean Avenue.

Neptune City abuts Avon on the west. It has no ocean-front.

Judicial notice is taken that for many years the beaches on the North Jersey shore were open beaches, but with the advent of automobile traffic and the ever-increasing number of vacationers, the beaches and bathing facilities became overcrowded and the beachfront municipalities began to take steps to limit the congestion by regulating the use of the beach facilities and by charging fees. In Kirsch Holding Co. v. Manasquan , 24 N.J. Super. 91 (App. Div. 1952), the charging of fees was held invalid absent legislation authorizing same, and this led to the adoption of N.J.S.A. 40:61-22.20, which provides as follows:

The governing body of any municipality bordering on the Atlantic ocean, tidal water bays or rivers which owns or shall acquire, by any deed of dedication or otherwise, lands bordering on the ocean, tidal water bays or rivers, or easement rights therein, for a place of resort for public health and recreation and for other public purposes shall have the exclusive control, government and care thereof and of any boardwalk, bathing and recreational facilities, safeguards and equipment, now or hereafter constructed or provided thereon, and may, by ordinance, make and enforce rules and regulations for the government and policing of such lands, boardwalk, bathing facilities, safeguards and equipment; provided, that such power of control, government, care and policing shall not be construed in any manner to exclude or interfere with the operation of any State law or authority with respect

to such lands, property and facilities. Any such municipality may, in order to provide funds to improve, maintain and police the same and to protect the same from erosion, encroachment and damage by sea or otherwise, and to provide facilities and safeguards for public bathing and recreation, including the employment of lifeguards, by ordinance, make and enforce rules and regulations for the government, use, maintenance and policing thereof and provide for the charging and collecting of reasonable fees for the registration of persons using said lands and bathing facilities, for access to the beach and bathing and recreational grounds so provided and for the use of the bathing and recreational facilities, but no such fees shall be charged or collected from children under the age of 12 years.

Pursuant to the powers granted by this statute Avon adopted an ordinance which provided, among other things, for the registration and issuance of badges to those who desired to avail themselves of the beachfront and water. The fee therefor, insofar as it affects this case, was set at $10 for the season; the fee for monthly badges was set at $7. On February 24, 1970 the ordinance was amended, and this set the fee for monthly badges at $10. The nub of the present controversy is that part of the section in the amending ordinance which reads as follows:

Season badges shall be sold to and only for the use of persons who are residents or taxpayers of the Borough of Avon and the members of their immediate family who are members of and reside in the same household unit.

For the purpose of this ordinance a resident shall include any person living within the territorial boundaries of Avon for not less than 60 consecutive days in the calendar year in which a badge is requested. A taxpayer is a person who owns real estate in the Borough of Avon, legal title to which is recorded in said person's name.

The effect of this ordinance is that residents and taxpayers of Avon may purchase a season badge for $10. All others must purchase monthly badges at $10 a month or $20 for the season. The present complaint attacks the validity of the amendment on the ground that it discriminates against the residents of Neptune City in regard to access and use of the bathing beaches of Avon. Individual persons residing in

Neptune City joined as parties plaintiff, perhaps out of an ...


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