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Ness v. Borough of Deal

Decided: December 20, 1976.


Bischoff, Morgan and E. Gaulkin. The opinion of the court was delivered by Morgan, J.A.D.


[145 NJSuper Page 370] This appeal concerns (1) the power of a shore municipality to limit use of a municipally-owned beach club to residents of that municipality, and (2) the power of such municipality to exclude nonresidents from that portion of the dry sand area, upland of public trust lands, reserved for the exclusive use of residents as part of the beach club. The trial judge's findings of fact, reflected in its opinion reported at 139 N.J. Super. 83 (Ch. Div. 1975), have not been challenged in this appeal, are accepted by us as being evidentially supported and, without being repeated herein, provide the factual basis for this opinion. Since the date of that opinion, however, the municipality, by ordinance, has equalized the fees charged to residents and nonresidents for seasonal use of the Phillips Avenue Pavilion (Pavilion) lockers, and hence the issue concerning discriminatory fees for such locker use has become moot and will receive only incidental mention in this opinion.

Several significant aspects of the factual background to this controversy, however, deserve emphasis so as to clarify the context in which the issues raised will be resolved. This case does not involve an alleged impairment of access to public trust lands -- that is, the wet sand area between mean low and mean high tide, either in front of the Deal Casino (Casino) or the Pavilion. It is undisputed that Deal affords the general public fully sufficient access to such lands. Nor does this case concern an alleged interference with the public's access to locker room or other changing or toilet facilities reasonably necessary for enjoyment of public trust lands. Here, too, it is undisputed that such facilities in the Pavilion, fully sufficient in nature, are freely available to the general public and, under the ordinance adopted since the trial court opinion, on terms equal to those afforded residents. Indeed, in addition to insuring access to all of the public trust lands within its boundaries, Deal makes available to the general public its own bathing beach immediately in front of the Pavilion, the facility which provides the changing and toilet facilities for its convenient use, and use of 50 feet of the dry sand beach upland of the public trust lands in front of the Casino itself. Hence, the only areas from which the general public is excluded are the Casino facilities themselves and the stretch of dry sand immediately in front of it, a 420' X 240' rectangle, west of the public trust lands, reserved for the exclusive use of Casino members. These two areas, the Casino and the dry sand beach used in conjunction with it, are the exclusive concern of this opinion.

The principal issue considered, as framed by the trial judge, was "whether a municipal beach club, even one which provides access to the public's use of the trust lands, may limit membership to residents only." 139 N.J. Super. at 99. During the course of his opinion, however, the judge expanded this issue to encompass exclusion of the general public from the upland sand area of the Casino as well, the 420' X 240' rectangle referred to above. With respect to both the beach and the Casino, the judge held that a shore

community, such as Deal, could not do so. Two reasons were given in support of this holding. The first was based upon a lack of municipal power to exclude nonresidents from the rectangle or Casino. "There is no authority which has been granted to Deal upon which it can base its exclusion of other residents of this State." Id. Deal's policy was regarded as being ultra vires.

The second reason was that excluding nonresidents from Casino membership and use of the adjacent rectangle offends the Equal Protection Clause of the New Jersey Constitution. N.J. Const. (1947), Art. I, par. 5. The classification based upon residency was viewed as unreasonable, bearing no rational relationship to the legitimate state goal of providing for the general health and welfare of the public, and thus constituted a denial of equal protection. The public trust doctrine was expressly rejected as a basis for the judge's conclusions since general access to public trust lands, as noted previously, remains unimpaired.

Accordingly, the trial judge ordered that the Casino, and all its facilities including the rectangle, be open to the general public on the same terms as those available to residents. A lottery for membership was ordered. Applications for membership were to be sent to anyone requesting one, and on a scheduled date a drawing was to be held to determine which applicants would be given membership. Those losing in the lottery would be refunded the proffered membership fees. Deal appeals.

The Deal Casino

As is apparent from the trial judge's findings of fact, the Deal Casino is a fairly elaborate facility located immediately adjacent to the beach area in Deal and designed to be used by its membership in conjunction with the beach on which it sits and which its facilities partially occupy. It consists of a 350-car parking lot, an olympic pool and infants' pool, 484 changing facilities comprising small and

deluxe bathhouses and regular and beach cabanas, three ladies' rooms, three men's rooms, one boys' room and one girls' room, a snack bar and restaurant, and recreational facilities including shuffleboard, ping pong, basketball and tetherball. Its construction in 1954-1956 was financed by a bond issue; "subsequent improvements were financed by municipal revenues, bond anticipation notes, capital improvement funds and Fiscal Assistance Act Funds." 139 N.J. Super. at 88. The site upon which the Casino now stands, apparently acquired by foreclosure proceedings and by outright purchase, was originally a bluff standing 20 to 30 feet above sea level, with high tides washing the base of the bluff, affording no usable bathing beach. The Casino site, prepared by a substantial engineering effort necessitating the approximate expenditure of $780,000, required the bulldozing of the bluff and the creation of a sand beach on property upland of the mean high water mark. Although the Casino is located immediately adjacent to the dry sand beach created by the town, it does not, strictly speaking, abut the public trust area since 50 feet upland of the mean high water mark has been dedicated to general public use.

The Casino obviously has a limit to the number of members it can accommodate. In 1974 approximately 2,450 members used the Casino facilities, with 356 persons in cabanas, 131 persons in beach houses, 1,327 in deluxe bath houses and 640 in small bath houses. The record reflects that the available facilities are fully utilized by local ...

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