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Arabia v. Zisman

Decided: June 21, 1976.

AMELIA ARABIA, ON BEHALF OF HERSELF AND ALL OTHER MEMBERS OF THE CLASS SIMILARLY SITUATED, PLAINTIFFS,
v.
SIMON ZISMAN ET AL., DEFENDANTS



Gruccio, J.s.c.

Gruccio

This is a class action by plaintiff class consisting of all persons who are now and for years past have been conducting the business of beach chair and beach umbrella rentals on the Atlantic City beach and boardwalk. The named defendants are all of the owners of real estate abutting the beach and boardwalk along the inland line thereof. For the past six decades plaintiffs and their predecessors have been conducting rental concessions under agreements with defendants and their predecessors whereby the former would pay the latter to waive their objections to having such concessions on the beach directly in front of their property. These agreements were made pursuant to a 1910 city ordinance allowing such objections and have continued down to the present date unchallenged in various forms and under various titles. Some parties have gone so far as to establish landlord-tenant leases whereby the concessioner rents the use of the beach from the abutting landowner. Plaintiff class seeks to have the city ordinance and past and present agreements between the parties made pursuant to it declared null and void and a return to each member of plaintiff class all fees paid under any such agreements.

The numerous motions for summary judgment were consolidated by way of an order to show cause on plaintiff's motion for partial summary judgment.

The background of this case dates back to 1899 and the creation of the Atlantic City beach and boardwalk as a municipal public park. In that year the Atlantic City City Council, pursuant to an enabling statute passed by the Legislature in 1894, laid out a park comprising the beach or ocean front from Maine and Caspian Avenues to Jackson Avenue and did among other things specify and determine the inland line and authorized the city surveyor to prepare a map thereof. It further authorized the acquisition of all lands, property and rights within the limits of the park, and over the years since the city has acquired by dedication or purchase all of the beach land within the park limits except for a few small parcels not involved in this action.

On July 1, 1910 the city adopted Ordinance No. 27 which served to regulate the use of the lands lying within the bounds of the recently created public park in order that the view oceanward from the interior line of the park and from the boardwalk would remain free, open and unobstructed. The ordinance endeavors to prohibit certain uses and regulate others. It provides for written permit by the mayor for use of the beach for sand modelling (§ 3) and for the holding of religious services and secular meetings (§ 4). It provides for written permit by the street supervisor for removal of sand (§ 5) and for control of horses and ponies for hire by the committee of streets, walks and drives (§ 8). Sections 2, 7 and 9 prohibit certain other activities, and § 6, the point of contention in this action, reads as follows:

Section 6. Reclining, Observation or Beach Chairs placed upon the beach or ocean front shall be of such shape, design and construction as shall be approved by the Streets, walks and drivers Committee of the City Council and no chairs except such as may be approved by such committee shall be used within or upon said public park. Not more than one row of such chairs shall be at any time placed therein or thereon and no chairs shall at any time be placed or maintained therein or thereon immediately in front of any premises, the owner of which premises objects to the placing and maintaining of such chairs in front of his said premises. Such chairs shall be confined to one location, shall face the ocean and shall not be carried or moved from place to place and shall not be put in use

or occupied after 7:00 P.M. of any day. Chairs shall be in one row and shall not be used singly or with two or more together scattered or placed at different places or spots within said public park. The said committee shall have power to keep such chairs in fixed, indicated or designated lines or places and no chair shall be used outside of or any other place than that so designated or indicated. At points representing the extension of street ends open spaces shall be left for the full width of said streets and there shall be open spaces maintained not less than eight feet in width at intervals of not less than one hundred feet between street intersections. Such chairs shall not be used except between May 15th and October 15th of any year. Said chairs shall not be placed or maintained so as to cause any obstruction to the view oceanward from the interior line of said park and from the elevated Boardwalk.

Plaintiffs contend that in allowing the objection of the abutting landowner to preclude the placing of chairs on the beach in front of their premises, the ordinance effects an illegal delegation of authority by the City of Atlantic City to defendants -- that it gives to these private citizens an unrestricted right that may be exercised arbitrarily, indiscriminately and capriciously to decide who shall and who shall not place beach chairs for rent or for private use on public property.

They further argue that inasmuch as the ordinance constitutes an illegal delegation of authority by the city and is therefore null and void, the agreements made pursuant thereto are likewise null and void, and that even if the ordinance is allowed to stand, the various contractual arrangements should not be. They allege that the bartering for private profit of a right created for the public good is contrary to the public policy under which that right was created. In either event plaintiffs contend that members of the plaintiff class are entitled to recover all fees or rents paid in the past to defendants under these agreements. Defendant landowners contend that the ordinance is a valid exercise of the police power and creates in them a right to object that is private in nature and therefore capable of being the subject matter of a private contract. In the alternative, they argue that if the ordinance and agreements made

pursuant thereto are found to be null and void, such holding should be prospective in nature, alleging various theories of ...


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