permit swimming in the waters by the nuns. If, as defendants claim, the currents are too dangerous and the jetties are too close together to allow swimming, such a condition exists regardless of whether the swimmer is a nun, a resident or a non-resident.
The Public Trust Doctrine does not require defendants to permit swimming on all of the beach areas in Stone Harbor. The court in Deal expressly recognized the right of a municipality to adopt reasonable regulations for the use and enjoyment of the beach area. Moreover, N.J.S.A. 40:92-7.1 expressly delegates to a borough exclusive control over bathing and recreational facilities, safeguards and equipment and expressly authorizes a borough to make and enforce rules and regulations for the government and policing of such bathing facilities, safeguards and equipment. The statute also authorizes a borough, in order to provide facilities and safeguards for public bathing and recreation, including the employment of lifeguards, to make and enforce rules and regulations for the government, use and maintenance and policing of such facilities and safeguards, and to charge a reasonable fee for access to the beach. Thus, under the police power, defendants may establish those areas of beach where lifeguards will be provided and swimming permitted. However, once defendants permit swimming in an area of public beach, they cannot restrict the right of all who wish to partake in such swimming from doing so. See Deal, supra.
In the instant case, defendants have attempted to show that the nuns have a private beach and have been permitted to enjoy the full range of recreational activities on that beach. However, it is clear that the nuns do not own the rights to the beach beyond the mean high tide mark, and cannot exclude members of the public from the wet sand in front of their property during low tide. Despite this fact, defendants have allowed only the nuns to use the water between the 111th Street and the 114th Street jetties and have claimed that their reason for doing so is the unsafe condition of that area. If defendants seek to maintain that conditions are unsafe for members of the public, they must likewise be unsafe for the nuns. Therefore, defendants must either prohibit all from swimming or, if it chooses to permit some members of the public to swim from the beaches between the two jetties, it must permit all members of the public to do so. Accordingly, the conduct of the defendants in refusing to establish a swimming beach in this area or to prohibit all from swimming there violates the Public Trust Doctrine.
As the court indicated earlier, defendants have failed to make swimming facilities in the waters between 111th and 114th Streets available to all on an equal basis. Such differential treatment is without a rational basis. Defendants' principal rationale for excluding members of the public is because of the unsafe conditions in the area. Such a rationale applies equally to the nuns. Moreover, defendants have failed to introduce any persuasive evidence as to why the nuns are not as susceptible to the unsafe conditions as members of the general public. The facts that fewer nuns use the beach than members of the public would were there a public beach and that nuns do not swim for very long periods of time do not overcome the existence of unsafe conditions. Moreover, the claim that members of the public would intrude onto the private dry sand area in front of the convent if a public beach were to be established between 112th and 113th Streets does not justify a total exclusion of all members of the public from swimming. Such a concern can be protected by a more precisely drawn regulation. See Lusardi, supra, 86 N.J. at 231, 430 A.2d 881. Defendants cannot seek to maintain the tranquility of the beachfront for the benefit of members of the convent by excluding members of the public from the waters off the beach. Such a purpose is not consistent with the Public Trust Doctrine nor equal protection. Since I find that the conduct of the defendants impermissibly discriminates between members of the public and the nuns and lacks a rational basis, I conclude that defendants have violated the equal protection rights of plaintiff.
Defendants have sought to regulate the placement of swimming beaches in the Borough of Stone Harbor. While neither the Public Trust Doctrine nor the statute delegating the state's power to regulate lands bordering on the ocean require the borough to maintain beaches at every possible location in Stone Harbor, the limitations which a borough adopts to regulate the use of ocean waters must be reasonable. Deal, supra, 78 N.J. at 179, 393 A.2d 571. Municipal regulations are subject to challenge if arbitrary, capricious or unreasonable.
In the instant case, the Borough Council has adopted an ordinance indicating that swimming may only take place at beaches where lifeguards are provided and that the location of such beaches shall be established by resolution of Council. However, the Council never apparently adopted a resolution designating swimming beaches until after trial of this action commenced. When the Council rejected plaintiff's petition for a beach at 113th Street, it relied on a number of recommendations of the Lifeguard Captain and the Beach Supervisor. The court has credited the testimony of the Lifeguard Captain and accepts the contention that the conditions at 113th Street do not favor public swimming. Council's reliance upon these recommendations is not unreasonable (so long as the swimming prohibition is applied to all equally). Council considered the public health and safety, proper considerations in determining the feasibility of establishing a swimming area. However, in light of the fact that no equivalent standards have ever been applied to the decision regarding the designation of protected beaches, the Council's decision is suspect. Council did not consider the safety of the 113th Street area in conjunction with a consideration of the safety of all other possible beach sites. Nor did it apparently reconsider this question during the course of trial when it passed a resolution designating beaches. Council never applied any identifiable standards to the decision of where to establish swimming beaches, but merely enacted a resolution which purported to make past practice official. Such action is purely arbitrary and cannot withstand a due process challenge. Accordingly, the resolution of Council adopted June 9, 1981 violates plaintiff's right to due process.
In conclusion, plaintiff has failed to carry her burden of establishing misrepresentation, ratification and grounds for estoppel. Accordingly, plaintiff's claims for injunctive relief and damages are denied. Plaintiff has demonstrated that the conduct of defendants violates the Public Trust Doctrine, equal protection and due process, and plaintiff is thus entitled to a declaratory judgment in her favor on these questions.
The accompanying order will be entered.