On appeal from the Superior Court, Appellate Division, whose opinion is reported at 148 N.J. Super. 437 (1977).
For modification and remandment -- Chief Justice Hughes and Justices Sullivan, Pashman, Clifford, Schreiber and Handler. For affirmance -- Justice Mountain. The opinion of the court was delivered by Sullivan, J. Mountain, J., dissenting.
This appeal, having a background similar to Van Ness v. Borough of Deal, 78 N.J. 174, also decided by us this day, is taken as a matter of right by virtue of a dissent in the Appellate Division.
The Borough of Allenhurst is a small oceanside community in Monmouth County, immediately to the south of the Borough of Deal. It is .3 of a square mile in area and consists of six streets running in a north-south direction, and six streets running east-west. Its eastern boundary is the Atlantic Ocean. The Borough is almost wholly residential in character. There are no hotels, motels, rooming or boarding houses in Allenhurst. Its population fluctuates between
approximately 1100 residents in the off-season and 1400 during the summer months.
The Allenhurst beach is 1600 feet in length of which 1200 feet is owned by the Borough and dedicated to public use. Only a 250-300 foot area is suitable for bathing. Use of the beach is limited by jetties, rocks and pilings, and the southern portion of the beach is washed by the ocean at high tide.
The Borough owns and maintains a beach club adjacent to the municipally owned beach. It was built by the Borough in the 1930's and presently consists of bathhouses, cabanas, a restaurant, several snack bars, sundecks, chaises and lounges, rest rooms and one large and two small swimming pools. It also has two small parking lots with a total capacity for 14 cars.
Membership in the club is open to nonresidents of Allenhurst as well as to residents on a seasonal or half-seasonal basis, but nonresidents are charged higher fees than residents for use of beach club facilities. The beach fee is the same for residents and nonresidents. As a practical matter, though, one had to be a member of the club in order to use the beach, as an Allenhurst ordinance forbade the appearance on a public street of a person in bathing attire. This ordinance effectively prevented anyone from changing into a bathing suit except at the beach club. The complaint filed by the Attorney General charged the Borough with illegal and discriminatory practices in the maintenance and operation of its beach and beach club.
The trial judge, in an oral opinion, sustained the Attorney General's complaint. He held that this Court's decision in Bor. of Neptune v. Bor. of Avon-by-the-Sea, 61 N.J. 296 (1972) required that man-made facilities adjacent to a publicly owned beach and essential to the meaningful enjoyment of the beach area must be made available to all on an equal basis. Accordingly, he ruled that club membership fees had to be the same whether for residents or nonresidents. He also viewed as unreasonably restrictive the limiting of
memberships to seasonal and half-seasonal permits. He ordered that Allenhurst institute a plan to provide for daily membership admission to all club facilities at a cost which was related only to the expenses of operating the beach itself. Final judgment was entered on July 13, 1976 embodying the aforesaid rulings. Notice of appeal was promptly filed by defendants.
When Allenhurst failed to submit a suitable plan for daily membership, the trial judge, by order dated August 2, 1976, and an amending order dated September 13, 1976, devised a plan whereby members of the public, up to 100 in number, were to be admitted to the beach on a daily basis at a cost of $2 on weekdays and $3 on weekends and holidays. Children under 12 years of age were to be ...