For reversal -- Chief Justice Weintraub and Justices Jacobs, Hall and Schettino. For affirmance -- Justices Francis and Mountain. The opinion of the Court was delivered by Hall, J. Francis, J. (dissenting). Justice Mountain joins in this dissent.
[61 NJ Page 298] The question presented by this case is whether an oceanfront municipality may charge non-residents higher fees than residents for the use of its beach area. The Law Division sustained an amendatory ordinance of defendant
Borough of Avon-by-the-Sea (Avon) so providing. 114 N.J. Super. 115 (1971). The challenge came from plaintiffs Borough of Neptune City, an adjacent inland municipality, and two of its residents. We granted plaintiffs' motion to certify their appeal to the Appellate Division before argument in that tribunal. R. 2:12-2. The question posed is of ever increasing importance in our metropolitan area.*fn1 We believe that the answer to it should turn on the application of what has become known as the public trust doctrine.
Avon, in common with other New Jersey municipalities bordering on the Atlantic Ocean, is a seasonal resort-oriented community. The attraction to the influx of temporary residents and day visitors in the summer months is, of course, the ocean beach for bathing and associated recreational pleasures and benefits. See Kirsch Holding Co. v. Borough of Manasquan, 59 N.J. 241, 243-244 (1971). According to the stipulation of facts, Avon's year-round population of 1850, resident within its approximately seven square block area, is increased in the summertime to about 5500 people (not counting day visitors), with the seasonal increase living in four hotels, 40 rooming and boarding houses and innumerable rented and owned private dwellings.
The municipality borders on the ocean for its full north-south length. Ocean Avenue, a county highway, is the easternmost street. Municipal east-west streets end at Ocean Avenue. Between it and the ordinary high water line or mark of the ocean waters are located an elevated boardwalk and a considerable stretch of sand, dry except in time of storms and exceptionally high tides. This stretch, as well as the boardwalk, is owned and maintained by the municipality and has been for many years. Although the derivation of the borough's title is not contained in the record, there is no dispute that the sand area has been dedicated for
public beach recreational purposes -- in effect, a public park -- and is used for access by bathers to the water, as well as for sunning, lounging and other usual beach activities. The tide-flowed land lying between the mean high and low water marks, as well as the ocean covered land seaward thereof to the state's boundary is owned by the State in fee simple, Bailey v. Driscoll, 19 N.J. 363, 367-368 (1955). There has been no alienation in any respect of that land bordering Avon; even if this state-owned land had been conveyed to Avon, it would be required to maintain that land as a public park for public use, resort and recreation. N.J.S.A. 12:3-33, 34.
Years ago Avon's beach, like the rest of the New Jersey shore, was free to all comers. As the trial court pointed out, "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." 114 N.J. Super. at 117. It also seems obvious that local financial considerations entered into the picture. Maintenance of beachfronts is expensive and adds substantially to the municipal tax levy if paid for out of property taxes. Not only are there the costs of lifeguards, policing, cleaning, and the like, but also involved are capital expenses to prevent or repair erosion and storm damage through the construction of jetties, groins, bulkheads and similar devices. (Construction of the latter is generally aided in considerable part, as it has been in Avon, by state and other governmental funds.) In addition, the seasonal population increase requires the expansion of municipal services and personnel in the fields of public safety, health and order. On the other hand, the values of real estate in the community, both commercial and residential, are undoubtedly greater than those of similar properties in inland municipalities by reason of the proximity of the ocean and the accessibility of the beach. And commercial enterprises located in the town are more valuable
because of the patronage of large numbers of summer visitors. (Avon does not have, in contrast with many other shore communities, extensive boardwalk stores and amusements.)
Legislative authority to municipalities to charge beach user fees, for revenue purposes, was granted by two identical statutes -- the first, L. 1950, c. 324, p. 1083, N.J.S.A. 40:92-7.1, applicable only to boroughs, and the second, L. 1955, c. 49, p. 165, N.J.S.A. 40:61-22.20, applicable to all municipalities. The latter reads 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.
In passing we should say that we see no legislative intent therein to authorize discrimination in municipal beach fees between residents and non-residents. The statute amounts to a delegation to a municipality having a dedicated beach (dry sand area) of the state's police power over that area and the tide-flowed land seaward of the mean high water
mark; the proviso indicates an affirmation of the state's paramount interest and inherent obligation in insuring that such seaward land be equally available for the use of all citizens.
Until 1970 Avon's ordinance, adopted pursuant to the quoted statute, made no distinction in charges as between residents and non-residents. The scheme then and since is that of registration and issuance of season, monthly or daily identification badges for access to and use of the beach area east of the boardwalk. (The boardwalk is open and free to all.) The amounts of money involved are substantial. In 1969, 32,741 badges of all categories were issued and the revenue from beachfront operations totalled $149,758.15, which went into the borough's general revenues.
The distinction between residents and non-residents was made by an amendment to the ordinance in 1970, the enactment which is attacked in this case. It was accomplished by making the rate for a monthly badge the same as that charged for a full season's badge ($10.00), by restricting the sale of season badges to residents and taxpayers of Avon and the members of their immediate families, and also apparently by substantially increasing the rates for daily badges (from $1.00 and $1.25 to $1.50 and $2.25). A "resident" is defined as any person living within the territorial boundaries of the borough for not less than 60 consecutive days in the particular calendar year. The result is considerably higher charges for non-residents under the definition than for permanent residents, taxpayers and those staying 60 days or more. Residents of Neptune City, for example, using the beach daily, would pay twice as much for the season (two monthly badges) as residents of Avon.
Plaintiffs attacked the ordinance on several grounds, including the claim of a common law right of access to the ocean in all citizens of the state. This in essence amounts to reliance upon the public trust doctrine, although not denominated by plaintiffs as such. Avon, although ...