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Ness v. Borough of Deal

Decided: December 9, 1975.

STANLEY C. VAN NESS, PUBLIC ADVOCATE OF THE STATE OF NEW JERSEY, PLAINTIFF, WILLIAM F. HYLAND, ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, PLAINTIFF-INTERVENOR,
v.
BOROUGH OF DEAL; DEAL CASINO; PHILLIPS AVENUE PAVILION; DANIEL KRUMAN, MAYOR OF THE BOROUGH OF DEAL; STANLEY R. KATZ, A COMMISSIONER OF THE BOROUGH OF DEAL; DR. HAROLD V. GARRITY, JR., A COMMISSIONER OF THE BOROUGH OF DEAL; AND W. STANLEY CONOVER, ADMINISTRATOR-BOROUGH CLERK OF THE BOROUGH OF DEAL, DEFENDANTS



Lane, J.s.c.

Lane

This is an action for declaratory judgment that defendants illegally discriminate against nonresidents and for an injunction to enjoin such discrimination. The issues set forth in the pretrial order are:

(a) Is the statute establishing the Public Advocate unconstitutional?

(b) Does the Public Advocate have standing in view of the appearance of the Attorney General?

(c) What portion of the beach and adjacent areas is subject to the public trust doctrine?

(d) Is the Deal Casino, which was financed by local taxation, subject to the public trust doctrine?

(e) Is the Phillips Avenue Pavilion subject to the public trust doctrine? If yes, is the difference in fees charged residents and nonresidents illegal discrimination?

(f) Does defendant exclude the public from the use and enjoyment of the public trust area?

(g) Were state monies used for private purposes and in violation of N.J. Const. (1947), Art. VIII, § III, par. 3? If so, what effect does that have on the use of the Pavilion and the Casino?

Deal is a municipal corporation in Monmouth County which borders on the Atlantic Ocean for its entire one-mile eastern boundary. It is bordered on the north by the City of Long Branch, on the south by the Borough of Allenhurst, and on the west by the Township of Ocean. Typical of most shore communities bordering on the Atlantic Ocean, its winter population enlarges considerably in the summer months when persons arrive to occupy summer homes they either own or rent in the borough.

Of the mile-long coastline only 1300 feet is owned by the municipality and utilized as a bathing beach. This stretch is divided into the Deal Casino beach, the Phillips Avenue Pavilion beach, and a surfing and boating beach. The dry sand in this area reaches back approximately 300 feet from the mean high water mark. The other beachfront property in the borough is not open to the public for swimming or

recreation since much of the remaining beachfront is made up of shallow beaches often ending in rocky seawalls which are reached by high tide. Also, lifeguards are only provided at the Pavilion and Casino beaches.

The location of the Deal Casino Beach Club is on the east side of Ocean Avenue and abuts the high water mark of the Atlantic Ocean. On the north and south boundaries of the property is an eight-foot chainlink fence. On the west side is a brick wall. A rope barrier has been strung along the sandy eastern portion of the Casino about 50 feet west of the mean high water line. The Casino beach is north of the boating and surfing beach and south of the Pavilion beach.

The property was apparently acquired by foreclosure proceedings and by outright purchase. The initial construction of the Casino was financed by a bond issue. Subsequent improvements were financed by municipal revenues, bond anticipation notes, capital improvement funds and Fiscal Assistance Act funds. Ordinance 347, passed March 22, 1954, for the construction of the Casino provided in § 5(d), "The improvement as authorized by this ordinance is necessary to provide adequate and suitable bathing and recreational facilities."

The Casino itself is a substantial facility containing a large swimming pool, a large parking lot, cabanas, bathhouses, snack bar restaurant and certain sports facilities, together with the sandy beach stretching to the ocean.

In 1956 the site on which the Casino beach stands was occupied by a bluff from 20 to 30 feet above the sea with high tides reaching to the base of the bluff and affording no usable bathing beach. The beach immediately in front of the Casino was constructed by the borough entirely at the borough's expense. The project was a substantial operation which required the bulldozing of the bluff and the creation of a beach on property upland of the mean high water mark.

In 1957 wells and an intake pipe for the pool were constructed. In 1958 the seawall along the ocean was reinforced

to protect the oceanfront sand, and a jetty designated as the Brighton Avenue jetty was constructed adjacent to the beach. It is not suggested that the jetty was paid for by Deal. A pool pump was purchased in 1962. Leveling slabs were installed in 1963. A manhole and a pumping apparatus were set in place in 1965. Bathroom facilities and a reconstructed pump-house were completed in 1966. The wells were reconstructed in 1963, and in 1970 repairs to the pool and concrete were made. In 1972 beach cleaning equipment was purchased and additional bathhouses built. In 1973 a restaurant and recirculating system were added.

The Casino was designed to be a municipal enterprise operated by the borough commissioners. The Revised Ordinances of the borough, Chapter VI, were adopted April 23, 1973 and revised July 9, 1974. They provide rules and regulations for the operation of the Casino. These rules and regulations specifically prohibit any person other than a member, guest of a member or employee to enter into or upon the Deal Casino Beach Club. All decisions as to the amount of dues to be paid for membership, as well as the terms upon which a person may become a member, are left to the board of commissioners to establish by resolution. The board is further empowered to lease bathhouses and cabanas to individuals who become members of the club and their guests at such rates and upon such terms as the board establishes by resolution. Certain other rules, such as the requirement that members exhibit a membership card upon their entry to the Casino, that no dog be allowed on Casino property and that bathing be permitted only at designated times and places, are included in the Casino ordinances. The promulgation of any and all other rules and regulations for the use, management and control of the Casino is left to the board of commissioners.

The borough ordinances provide that persons are liable to fines and punishments if they swim at beaches in the borough which are not designated as protected beaches. The

Phillips Avenue Pavilion and the Casino are the only areas that are so designated.

The rules include, among others, the following guidelines and practices:

Only the immediate family of year-round residents of the borough, their nonresident parents and nonresident members of their immediate families, and nonresident owners of real estate in the borough are eligible to apply for membership in the Casino. Applications must be filed between April 1 and the end of the first week in May and must be completely answered. To obtain an application through the borough's seasonal mailing of application forms, an individual must have been a member of the Casino the previous season. Rental of no more than one bathhouse or one cabana is permitted to any immediate family which is eligible for membership. No other citizens of this State can become members of the Deal Casino. Daily entrance is only available to guests of members for $3 for a weekday and $7 for a weekend or holiday.

In 1974 approximately 2,450 members used the Casino facilities. The following reflects the number of people in the various facilities: 356 in cabanas, 131 in beach houses, 1,327 in deluxe bathhouses, 640 in small bathhouses. The membership fees received by the borough for the Casino in 1974 were $259,750. Approximately 6,147 guests were admitted in 1974, for which fees ...


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