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Sea Watch Inc. v. Borough of Manasquan

Decided: November 6, 1980.

SEA WATCH, INC., A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF,
v.
BOROUGH OF MANASQUAN, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT



Shebell, A.j.s.c.

Shebell

Plaintiff filed an action in lieu of prerogative writs attacking the validity of a portion of Ordinance 1160 of the Borough of Manasquan. The portion under attack provides that

Each and every person clad in bathing attire using the dedicated beachfront, public walk , bathing beaches and bathing and recreational facilities . . . shall before using the same and before entering upon the same, register with the duly authorized agents of the Borough employed for that purpose. . . . [Emphasis supplied]

This ordinance, together with the ordinance which it amended, had the effect of prohibiting any adult from using the public walkway along the municipal beach unless they registered and paid for a municipal beach badge if they chose to be "clad in bathing attire."

The walkway in question replaced what was formerly a boardwalk which was destroyed by a storm. It is a macadam or

blacktop surface which extends the length of the beach owned by the borough. The history of the acquisition of the beach and the covenants in the deeds as they relate to public use and purposes, including the requirement of the construction of the boardwalk, is rendered relatively unimportant by reason of the well established public trust doctrine. Neptune City v. Avon-by-the-Sea , 61 N.J. 296 (1972).

The Supreme Court in Van Ness v. Deal , 78 N.J. 174 (1978), in referring to the Avon case, stated:

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. [at 179]

That is not to say that in the exercise of its police power the municipality cannot adopt reasonable regulations for the use and enjoyment of such lands, and charge reasonable fees for revenue purposes. Neptune City v. Avon , 114 N.J. Super. 115 (Law Div.1971); N.J.S.A. 40:92-7.1 and N.J.S.A. 40:61-22.20.

There is no attempt to uphold the requirement of a beach badge as a condition for use of the walkway on any other basis than as a means of facilitating the collection of the fee for use of the bathing beach. The borough feels bound by deed restriction which would appear to prohibit the erection of any formidable fence east of the walkway. The borough has thus chosen to keep all persons clad in bathing attire from entering onto the walkway without payment of the fee at a point where the intersecting east-west streets terminate at the north-south walkway in question.

Plaintiff owns 200 feet of commercial bathing beach adjacent to the municipal beach and maintains that its customers and all persons should have access to the walkway without having to purchase a beach badge. Defendant, however, contends that the walkway is merely an accessory type of convenience ...


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