On appeal from the Superior Court of New Jersey, Chancery Division, Ocean County.
Fritz, Botter and Ard. The opinion of the court was delivered by Ard, J.A.D.
[160 NJSuper Page 203] The Attorney General brought this action by an order to show cause and verified complaint against defendants seeking to void the township's beach badge fee schedule and to compel the township to adopt another. Demand was also made for reimbursement of state funds expended for beach preservation in the township. Upon submission of affidavits and the township's badge sale records for the period from April 1977 through July 5, 1977, the Attorney General moved for a preliminary injunction and defendants cross-moved for summary judgment. This appeal is
from the entry of summary judgment in favor of defendants and against plaintiff.
The narrow issue involved in this case is demonstrated by the sole point heading in plaintiff's brief which reads as follows:
The lower rates available only to early purchasers of beach badges fail to provide all members of the public with equal access to public trust lands, in contravention of the principles established by Borough of Neptune City v. Borough of Avon-By-The-Sea.
The township's ordinance at the time of the suit required persons using any beach in the township during the summer season (ordinarily from June 15 to September 15) to purchase and display a beach badge. If application for a badge was made either in person or by mail prior to May 31, a season badge cost $2. If application was made after May 31 but prior to June 30, a season badge cost $6. Thereafter season badges were unavailable, but a weekly badge could be purchased for $2. All rates were advertised from April 12 to June 29, 1977 in the newspaper used by the township for publication of all official notices. After entry of judgment in the trial court, the ordinance was amended to permit purchase of a season badge for $2 until June 15 (the first day when badges must be worn); abolishing the $6 badge, and creating a $5 season badge which could be purchased at any time from June 15 to the end of the season. The ordinance as amended sets up a fee schedule containing the same characteristics as the original ordinance which plaintiff claims to be unlawful. We do not believe this makes the issue moot. However in this appeal we are concerned with the validity of the amended ordinance. Hynes v. Oradell Mayor and Coun. , 66 N.J. 376, 379 (1975), rev'd on other grounds 425 U.S. 610, 96 S. Ct. 1755, 48 L. Ed. 2d 243 (1976); S & L Associates, Inc. v. Washington Tp. , 35 N.J. 224, 227 (1961).
We recognize the thoroughly settled principles of law that summary judgments are to be granted with extreme
caution, Ruvolo v. American Cas. Co. , 39 N.J. 490, 499 (1963), and that on a motion for summary judgment it is the movant's burden to exclude any reasonable doubt as to the existence of any genuine issue of material fact. As the matter is before us on appeal from a grant of summary judgment awarded defendants, we must accept as true all recorded facts and reasonable inferences therefrom in the light most favorable to the plaintiff. Judson v. Peoples Bank & Trust Co. of Westfield , 17 N.J. 67, 74 (1954). With this standard in mind we note that plaintiff has not submitted affidavits setting forth specific facts showing a genuine factual issue for trial nor affidavits stating that he could not present such facts at this stage in the proceedings.
At the hearing below it was uncontroverted that the township contained about 5,200 homes and had a permanent population of approximately 4,200 people. It appears that as of July 5, 1977 the township sold 60,714 season badges at $2; 1,444 season badges at $6, and 4,161 weekly badges at $2. Although the records do not differentiate between sales to residents and to nonresidents, they do show that by July 5, 1977, $86,990 had been realized from in-person sales, $43,004 from mail sales and $8,362 from "weekly sales."
The trial judge made findings that: (1) the fee schedule applied to residents and nonresidents alike; (2) the badges could be obtained by mail; (3) the fee schedule had been advertised in a local paper on seven occasions; (4) the badge sale evidence showed that "people of the State of New Jersey" had availed themselves of the opportunity to purchase season badges at the lower rates; (5) early badge purchases facilitate township planning and preparation for beach use by providing an estimate of the number of people who will use ...