On appeal from Superior Court of New Jersey, Law Division, Monmouth County, whose opinion is reported at 177 N.J. Super. 199 (1980).
Fritz, Ard and Trautwein. The opinion of the court was delivered by Fritz, P.J.A.D.
Defendant Borough of Manasquan enacted Ordinance 1160, amending the ordinance governing the use of its dedicated beach front, in order to make clear that which might have been implicit in the prior ordinance -- that persons using the macadam walkway on the dedicated property while clad in bathing attire would be subjected to the same conditions as those using the sand and water, to wit, liability for a beach badge for which there was a monetary charge. Plaintiff challenged this ordinance. The trial judge sustained the challenge and declared certain provisions of the amendment "void and unenforceable." Sea Watch, Inc. v. Manasquan, 177 N.J. Super. 199, 202 (Law Div.1980). We now reverse.
Whatever else there is to be said respecting the motivation for the enactment of this ordinance and the propriety thereof, of which we will say more later, it is abundantly clear that this
lawsuit represents an attempt to defend parochial interests on the part of both parties. Concededly, Manasquan is attempting to protect the integrity of the program designed according to law to provide beach front facilities and finance them. Sea Watch, with no less candor, is concerned for its ability to attract paying customers to its private beach if the customers cannot leave that beach except by way of the borough streets to the west. It would appear from the record before us that if the present challenge is to any degree valid, its incipiency should have been apparent for many years. We have no doubt that its fulmination has been produced by the fact that Sea Watch has heretofore rented its private property to the borough, but in 1980, the year of the amendment and the year of the complaint and order to show cause which initiated this action, Sea Watch determined to operate that property itself by issuing its own badges and levying its own charge.
Defendant's beach front property is separated from private property to its west by a fixed and known demarcation referred to as the "monumented beachfront line." It is also interrupted in its north-south stretch by the property of plaintiff, a parcel of private beach 200 feet wide. Defendant has chosen to construct a macadam walkway along the westerly side of its property from plaintiff's property southerly to the inlet, parallel to the monumented beach front line but east of it and entirely on defendant's property. Ordinance 1160 makes it clear that for persons to use that walkway while clad in bathing attire they must purchase a municipal beach badge. It is the contention of the borough that this is a necessary regulation in order to enforce the requirement that beach badges be worn for utilization of the municipal beach. They eschew the erection of a fence between the walkway and the immediately contiguous sand as being prohibited by a condition in a deed of dedication which enjoins the erection of a handrail except where required for safety purposes and the erection of a fence unless required for safety or bathing purposes, but contend, in any event, that in the municipal judgment the means selected in this ordinance are
the most effective and necessary means for policing the beach. Sea Watch, on the other hand, complains that it will be unable to sell badges for the use of its private facility if its patrons who are clad in bathing attire must take to the borough streets to get to southerly places, including an amusement area. They contend, reasonably enough, that no one will purchase two badges in order to swim on the beach and enjoy the other pleasures offered by the Borough of Manasquan when they could do this with one borough badge.
Plaintiff's attack, reduced to its simplest legal terms by virtue of the issues as framed in the pretrial order, first challenged the enactment as being an "overly broad exercise of the police power." It insisted as well that the deed of dedication to the borough carried with it the right of the general public to use this walkway free of restrictions and insisted that members of the general public are third-party beneficiaries with respect to a deed from Seacoast Real Estate Company to the Borough of Manasquan, dated September 8, 1914, conveying property "for public purposes and for a place of resort for, public health and recreation" which required the construction "on said strip of land a boardwalk at least one thousand feet long." Finally, plaintiff charged defendant with bad faith in the passage of Ordinance 1160, asserting that this was done "with the direct purpose of obstructing the plaintiff in the operation of its business." The trial judge decided the matter by reference to and whole reliance on "the well established public trust doctrine." 177 N.J. Super. at 201. He did not deal with the issues of the case as they were raised in the pretrial order, commenting that the public trust doctrine "rendered relatively unimportant" 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." Ibid.
We are of the opinion that the matter has nothing whatsoever to do with the public trust doctrine. The simple question involved is whether a municipality is deprived of its
statutory right to charge a reasonable fee in connection with the use of municipally-owned beach front property because it has chosen to build a walkway on a portion of the beach. Not only do we think this question must be answered in the negative, but are ...