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Ness v. Borough of Deal

Decided: October 16, 1978.

STANLEY C. VAN NESS, PUBLIC ADVOCATE OF THE STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, AND ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
BOROUGH OF DEAL, ET AL, DEFENDANTS-APPELLANTS



On certification to the Superior Court, Appellate Division, whose opinion is reported at 145 N.J. Super. 368 (1976).

For reversal -- Chief Justice Hughes and Justices Sullivan, Pashman, Clifford and Handler. For affirmance -- Justices Mountain and Schreiber. The opinion of the court was delivered by Sullivan, J. Mountain, J., dissenting. Justice Schreiber joins in the introduction and Part I of this opinion.

Sullivan

The underlying suit was brought by Stanley C. Van Ness, Public Advocate of the State of New Jersey, against the Borough of Deal charging the Borough with illegal and discriminatory practices in the maintenance and operation of its publicly owned beaches and related facilities. The suit was bottomed on this Court's 1972 decision in Bor. of Neptune v. Bor. of Avon-by-the-Sea, 61 N.J. 296, which held that a coastline municipality, in the maintenance and operation of its public beaches, could not discriminate in any respect between residents and nonresidents.

Deal is a municipality in Monmouth County bordering on the Atlantic Ocean for its entire one-mile eastern boundary. Only about 1325 feet of that coastline is suitable for beach and bathing purposes. This area is municipally owned and is divided into three sections. The north beach is called the

Phillips Avenue Pavilion Beach and extends for some 475 feet along the ocean. It has bathhouses, rest rooms, a play area and sun deck. The facilities are available on a daily or seasonal basis at fixed charges which are constant for residents as well as nonresidents.*fn1 This beach area has been dedicated by the municipality to general public use.

Just to the south of the Pavilion area is the Deal Casino, also municipally owned, but operated on a restricted basis. The Casino has two swimming pools, a snack bar-restaurant, rest rooms, bathhouses and deluxe cabanas, as well as facilities for shuffleboard, ping-pong, basketball and the like. Only Deal residents or property owners can obtain membership in the Casino.

The beach area in front of the Casino, which extends approximately 420 feet along the ocean, is dedicated for the use of residents of Deal and, except for a 50-foot wide strip along the high water line, is reserved for the use of Casino members and guests. Prior to construction of the Casino in 1956, this area consisted of a bluff about 20-30 feet high which was unsuitable as a bathing beach. As a part of the Casino project, the bluff was bulldozed and graded to form a dry beach area. Approximately $800,000 was spent by Deal to construct the Casino and beach. Maintenance expenses are paid out of the membership fees.

There is no restriction on the right of the public to bathe and swim in the ocean in front of the Casino. The public is also allowed to use a 50-foot wide strip of the Casino's dry beach area extending along the high water mark. However, commencing about 50 feet west of the high water mark, the dry sand area in front of the Casino is roped off and reserved for the use of Casino members.

To the south of the Casino is the municipally owned surfing and boating beach approximately 430 feet in width. This area is used by bathers from both the Pavilion and the Casino, as well as by the general public.

The original suit had as its object the opening to the public of the Casino memberships and facilities, as well as the restricted dry beach area in front of the Casino. It was asserted that these facilities came under the Public Trust Doctrine as applied by this Court in Avon. The trial judge, in an opinion reported at 139 N.J. Super. 83 (Ch. Div. 1975), sustained the proposition that these municipally owned facilities, including the beach area, must be made available to nonresidents of Deal on the same basis as to residents. However, the specific relief ordered,*fn2 was not rested on the Public Trust Doctrine but, rather, based on the concept of municipal power and the requirement of equal protection.

The Appellate Division reversed. Its opinion is reported at 145 N.J. Super. 368 (1976). As to the Casino, it held that limiting membership in the Casino to residents of Deal did not deny equal protection since the classification was reasonable under the circumstances. It found in N.J.S.A. 40:61-22.21, the statute empowering a municipality to build and operate a swimming pool facility, authorization to establish membership qualifications as long as they were reasonable.

It also held that the beach in front of the Casino was not subject to our holding in Avon as it had not been dedicated to the general public's use and, since the remaining beach area made available for the use of the general public was adequate for the enjoyment of public trust rights, the Appellate Division sustained the power of the municipality to

restrict use of the Casino beach to Casino membership. This Court granted certification on application by the Public Advocate. 74 N.J. 262 (1977).

At the argument of the appeal before this Court, the Public Advocate abandoned that part of the case which claimed that the Casino facilities were subject to the Public Trust Doctrine and must be opened to the public. His sole contention now is that the dry beach area immediately in front of the Casino is subject to the doctrine and should be available to the general public so that there may be a proper enjoyment of public trust rights. This is the only issue before us.

In Bor. of Neptune v. Bor. of Avon-by-the-Sea, supra, as heretofore noted, we held that an oceanside municipality, in the maintenance and operation of its public beaches, could not discriminate in any respect between residents and nonresidents. There involved was Avon's asserted right to charge nonresidents higher fees than residents for the use of its public beach. Our ruling was bottomed on an expanded application of the Public Trust Doctrine, the original purpose of which was to preserve for all the public natural water resources for navigation and fishing. In Avon, supra, 61 N.J. at 303-310, there is discussed in some detail the origins of the doctrine, its history, development and modern connotations, citing numerous authoritative articles and critiques.

The Public Trust Doctrine has always been recognized in New Jersey. It is deeply engrained in our common law, Arnold v. Mundy, 6 N.J.L. 1 (Sup. Ct. 1821), due, no doubt, to New Jersey's unique location on the Atlantic Ocean, Delaware and New York Bays with numerous rivers and tributaries emptying into these bodies, resulting in extensive shorelines and considerable tidal waters and tidal lands in the State. New Jersey beaches adjacent to its tidal areas are world famous because of their suitability for bathing, surf fishing and other forms of recreation.

In Avon, this Court had no difficulty in finding that in this day and age the public rights in tidal lands were not

limited to the ancient prerogatives of fishing and navigation, but extended as well to recreational uses including bathing, swimming and other shore activities. 61 N.J. at 309. In so holding, we noted that the Public Trust Doctrine, like all common law principles, was not fixed or static, but should be molded and extended to meet changing conditions and the needs of the public the doctrine was created to benefit. Id.

With regard to municipally owned beaches, we said this:

Id. at 308-309.

This ruling is fully applicable to the present appeal. In Avon, contrary to defendants' contention herein, we were not limiting our ruling to the beach area between low and high water -- the wet beach area. We said and we meant that, in New Jersey, a proper application of the Public Trust Doctrine requires that the municipally owned upland sand area adjacent to the tidal waters must be open to all on equal terms and without preference. See Note, 26 Rutgers L. Rev. 179, 181 (1972). Of course, the municipality, in the exercise of its police power and in the interest of the public health and safety, would have the right to adopt reasonable regulations as to the use and enjoyment of the beach area.

Our ruling here, as in Avon, is concerned with municipally owned open beaches. We are not called upon to deal with beaches on which permanent improvements may have been built, or beaches as to which a claim of private ownership is asserted.

The fact that Deal has never dedicated the Casino beach to the use of the general public is immaterial. The beach is dedicated to recreational uses including bathing, swimming, surf ...


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