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Lusardi v. Curtis Point Property Owners Association

Decided: June 4, 1981.


On certification to the Superior Court, Chancery Division.

For modification and affirmance -- Chief Justice Wilentz and Justices Sullivan, Pashman, Clifford, Schreiber, Handler and Pollock. For reversal -- None. The opinion of the Court was delivered by Pashman, J.


The Court must determine in this case whether Brick Township's zoning ordinance is invalid on the ground that it unlawfully prohibits recreational use of privately owned unimproved oceanfront property. More specifically, the issue is whether a municipality's obligation "to encourage the most appropriate use of land," N.J.S.A. 40:55D-62(a), prevents it from zoning vacant land along the Atlantic Ocean for single family residential use only. The trial court held that the Township's zoning ordinance is invalid insofar as it prohibits recreational use of oceanfront property where no residential use exists. It found that the ordinance is an unreasonable exercise of the zoning power in light of judicial, legislative and executive pronouncements establishing a statewide policy of encouraging recreational use of dry sand beach areas along the Atlantic Ocean. We agree.


The Curtis Point Property Owners Association, defendant and third-party plaintiff in this action, owns an oceanfront lot in Brick Township. The township has zoned virtually all lots bordering on the Atlantic Ocean for single family residential use. The zoning ordinance does not allow recreational use of the dry beach areas on these lots except as an accessory use to a permitted primary use. Besides single family residences, the permitted primary uses are churches, schools, municipal parks, and governmental or cultural buildings. The Association admittedly uses its lot for recreation in violation of the ordinance.

The Association is a group of homeowners from a bayside development located near the beachfront lot in question. One of the privileges of membership in the Association is the right to use the Association's lot for access to ocean bathing and for recreation on the beach.

The lot is 80 feet wide and extends about 400 feet from the highway to the mean high water mark. For 180 feet back from the highway, the property is overgrown with vegetation, except for a path worn along one side of the lot. The rest of the lot is beach area, roughly half of which is taken up by a dune. From the toe of the dune to the mean high water mark, a distance varying from 100 to 150 feet, is the dry sand beach area used for bathing and recreation.

In 1964 the original plaintiff, Peter Lusardi, initiated this litigation by filing a complaint seeking to enjoin the Association from using its property as a bathing beach or recreational area. The complaint alleged that the Association's use violated the zoning ordinance and created a nuisance to the plaintiff, particularly when large numbers of the Association's members overflowed onto his property. In 1965, after finding that the Association had violated the zoning ordinance by using its property for recreation without a permitted primary use, the trial court enjoined further use of the lot "as a bathing beach or recreation area, while the zoning laws of the State of New Jersey and Brick Township, affecting the subject matter of this case, remain as they are at the time of entry of this judgment." The Appellate Division affirmed the judgment.

Nothing further happened until 1974, when the successor in title to Lusardi moved to hold the Association in contempt for violating the 1965 judgment by continuing to use the lot for bathing and recreation. The Association moved to dismiss the injunction, arguing that this Court's decision in Borough of Neptune City v. Borough of Avon-by-the-Sea, 61 N.J. 296 (1972), had changed the law of this State, and that under the present law the zoning ordinance was invalid. The trial court entered an order finding the Association in contempt of court and reaffirming the injunction. This judgment was appealed.

The Appellate Division reversed the contempt order and remanded the matter to the Chancery Division for further proceedings. 138 N.J. Super. 44 (1975). The court held that the

contempt procedure employed had been improper and that the case should be treated as a motion in aid of litigant's rights under R. 1:10-5. Id. at 49-50. Because the suit implicated important issues of potential relevance to the public trust doctrine, the court ordered that the matter be remanded for development of a full and plenary ...

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