Bischoff, Morgan and Furman. The opinion of the court was delivered by Morgan, J.A.D. Furman, J.s.c. Temporarily Assigned (dissenting).
This is another appeal which concerns the extent of a shorefront community's obligation to open its beaches and municipal facilities adjacent thereto to both residents and nonresidents on equal terms. See also, Van Ness v. Deal , 145 N.J. Super. 368 (App. Div. 1976).
The municipality is the Borough of Allenhurst, a small community (.3 square miles) bordering on the Atlantic Ocean immediately south of Deal, which consists of six streets running north-south and six streets running eastwest. It is almost entirely residential in character, with no hotels, motels, rooming or boarding houses and no boardwalk concessions or amusements. Its population totals 1112 people, although during the summer months it increases to around 1400. As the trial judge found, "it may be fairly characterized as a quiet, dignified community."
Allenhurst's shore line is a bluff, the sand being 20 feet below street level. Although the beach is 1200 feet long, only 250-300 feet of the ocean may be safely used by bathers on a good day. Most of the usable beach lies to the north of the Beach Club, with the stretch immediately in front of the Club being the least desirable area. What beach there is is limited by jetties, rocks and pilings, and in high tide most of the southern portion of the beach is washed by the ocean waters.
The Allenhurst Beach Club is located on the upland soil adjacent to the sand. Presently, the Club's facilities include 329 lockers and 38 cabanas, a restaurant with a 100-person capacity, several snack bars, sun decks and sun bathing paraphernalia such as chaises and lounges, restrooms, one large and two small swimming pools. As the trial judge noted, parking for the Club is at a premium. Two small parking lots service the Club; one has capacity for ten cars and the other, for four cars. There is no question, and the trial judge noted, that parking facilities are inadequate to handle those persons attending the Club.
Unlike Deal, and probably because of its more modest size and population, the Allenhurst Beach Club does not exclude nonresidents from membership. In 1975 there were 782 resident and 589 nonresident full-season memberships and three residents and one nonresident holding half season membership. Nonresidents are charged more than residents for membership in the Club, and the trial judge's invalidation of this policy provides one of the issues on this appeal. The seasonal fee for a nonshower bathhouse is $75 for residents and $100 for nonresidents; for a shower bathhouse $125 for residents and $140 for nonresidents. A nonresident is defined as a person not actually residing in Allenhurst during the summer season.
Allenhurst took title in 1901 to the property on which the Club is located through deeds, each of which recites that the conveyance is made to the borough "for the establishment of a public park and place of public resort for health and recreation in said Borough." Since 1913 the borough has invested a total of $2,300,000 to build and maintain the Club; the State's expenditure of $420,000 related only to maintenance of the beach itself. Membership fees do not equal costs of maintenance. In 1975 the annual deficit was approximately $30,000, which was met through property taxes paid by Allenhurst residents. In addition, the taxpayers pay for the police and sanitation crews allocable to the Club during its
season. In the trial judge's view, the Club cannot be viewed as a lucrative municipal asset.
Although there was no specific trial court finding as to access to the beach itself, neither party seriously disputes the existence of the two entryways to the beach proper, exclusive of the access thereto from the Club. The record provides uncontradicted evidence of this fact. Fees for beach use are the same for residents and nonresidents, and are included as a line item in the total charge for Club membership. Furthermore, neither party disputes the right of the public to have access to public trust lands on the same terms as those made available to residents. Indeed, in Allenhurst the public can use the entire dedicated beach area, including those portions upland of the public trust area, and for the same beach fee as that charged residents. To dispel any possible confusion and despite the agreement of counsel on this point, we expressly hold that the general public is entitled to access to both the public trust lands along the Allenhurst shoreline and to all portions of the dedicated beach area in that municipality for a fee no greater than that charged residents for similar use. To the extent that the trial judge so held, we affirm.
Moreover, since the trial of this case, the trial judge, on plaintiff's application, invalidated an ordinance prohibiting the wearing of beach apparel on the streets of Allenhurst. This ordinance had the effect of precluding a change of clothing in cars or in private residences of nonmembers of the Beach Club, and to a serious extent impeded the free use by the general public of public trust lands. No appeal has been taken from that ruling and the general public is now permitted the convenience of changing into bathing attire elsewhere and walking to the beach, eliminating the necessity to use the locker facilities from the Club as a condition to the enjoyment of beach use. Hence, the practical requirement ...