JOHN E. SUSKO, FRANCINE M. DOLAN, KYLE BROWN, MICHAEL SEEBECK, PATRICIA COREA, NOREEN DEAN, JAMES BEAN, and JOY DESANCTIS, Plaintiffs-Respondents,
BOROUGH OF BELMAR and MAYOR AND COUNCIL OF THE BOROUGH OF BELMAR, Defendants-Appellants.
September 20, 2018
appeal from Superior Court of New Jersey, Law Division,
Monmouth County, Docket No. L-1427-15.
William W. Northgrave argued the cause for appellants (Mc
Manimon, Scotland & Baumann, LLC, attorneys; William W.
Northgrave and Thaddeus J. Del Guercio, III, on the briefs).
Kenneth E. Pringle argued the cause for respondents (Pringle
Quinn Anzano, PC attorneys; Kenneth E. Pringle, of counsel
and on the brief; Denise M. O'Hara, on the brief).
Judges Alvarez, Nugent and Reisner.
response to the physical and economic devastation wrought by
Superstorm Sandy, the Borough of Belmar took, or planned to
take, a series of actions that were inconsistent with a
thirty-year-old but still binding court decision in
Slocum v. Borough of Belmar, 238 N.J.Super. 179 (Law
Div. 1989). The trial court found that the Borough improperly
used funds derived from beach fees (beach funds) to settle
non-beach related litigation; improperly deposited into the
Borough's general fund certain donations raised through a
campaign to help rebuild the boardwalk (the buy-a-board
donations); planned to improperly use the buy-a-board
donations, and certain other funds restricted for beach use,
to rebuild a boardwalk pavilion (the Taylor Pavilion) that
was largely used for non-beach purposes; and doubled the fees
for beach-front parking spaces in order to raise money for
the general fund. The trial court found that defendants'
actions or planned actions violated the Borough's
obligations under the public trust doctrine and N.J.S.A.
40:61-22.20, which was enacted to implement the doctrine. The
trial court also concluded that the Borough violated
plaintiffs' substantive civil rights and awarded
plaintiffs about $170, 000 in counsel fees and costs under
the New Jersey Civil Rights Act (CRA), N.J.S.A. 10:6-2(f).
challenging the resulting trial court orders, defendants -
the Borough, and its Mayor and Council - contend that most of
plaintiffs' issues were not ripe; the trial court's
decision violated the separation of powers doctrine; the
court erred in holding that the Borough must use the
buy-a-board donations to rebuild the boardwalk; the court
erred in finding that violations of the public trust doctrine
were substantive rights for purposes of a counsel fee award
under the CRA; the court erred in voiding the ordinance
doubling the parking fees; paying litigation fees from the
beach fund did not violate the public trust doctrine or the
CRA; no counsel fee could be awarded because plaintiffs'
attorney had no retainer agreement; the counsel fee award was
excessive; and any fee award should be paid from the beach
fund instead of the general fund.
conclude that the disputes in this case were ripe for
adjudication. We affirm the orders on appeal, except that we
modify the order awarding counsel fees under the CRA. We hold
that when a municipality violates the beach fee statute,
N.J.S.A. 40:61-22.20, by charging unreasonable beach fees,
that violation constitutes the deprivation of a substantive
civil right under the New Jersey Civil Rights Act, and a
successful plaintiff is entitled to counsel fees. However,
because the CRA requires the violation of an unambiguous,
specific statutory or constitutional provision, most of the
conduct plaintiffs proved in this case, while wrongful, did
not establish CRA violations or entitle them to counsel fees.
the limited circumstances of this case, we agree with the
trial court that parking fees - charged only for beach-front
parking and nowhere else in the Borough - constituted beach
fees. The record supports the trial court's findings that
doubling the parking fees in order to raise general revenues
for the Borough imposed an unreasonable beach fee on users of
the beach. Plaintiffs are entitled to counsel fees under the
CRA for that violation of N.J.S.A. 40:61-22.20. Plaintiffs
did not prove that the Borough's regular beach-badge fees
were unreasonable, nor did they prove that they were
physically excluded from any portion of the Borough's
beach. Because CRA counsel fees are available for the
violation of N.J.S.A. 40:61-22.20 that plaintiffs proved, we
do not reach the separate issue of whether counsel fees are
available under the CRA solely for a violation of the
common-law public trust doctrine.
background, it is helpful to briefly review the public trust
doctrine and the Slocum decision.
public trust doctrine refers to the common-law principle that
a state holds, "'in trust for the people,
'" "'ownership, dominion and
sovereignty' over tidally flowed lands" extending to
the mean high water mark. City of Long Branch v.
Liu, 203 N.J. 464, 474-76 (2010) (quoting Matthews
v. Bay Head Improvement Ass'n, 95 N.J. 306, 316-17
(1984)). Accord Borough of Neptune City v. Borough of
Avon-By-The-Sea, 61 N.J. 296, 303-04 (1972) (stating
that "land covered by tidal waters belonged to the
sovereign, but for the common use of all the people").
The public trust doctrine guarantees the public's right
to reasonable access to the trust lands. Raleigh Ave.
Beach Ass'n v. Atlantis Beach Club, Inc., 185 N.J.
40, 51-55 (2005). "[W]ithout access the doctrine has no
meaning." Id. at 53 (citing Matthews,
95 N.J. at 323).
courts have extended the uses covered by the public trust
doctrine, beyond navigation, commerce, and fishing "to
recreational uses, including bathing, swimming and other
shore activities." Avon, 61 N.J. at 309.
See Lusardi v. Curtis Point Prop. Owners Ass'n,
86 N.J. 217, 228 (1981) ("The public trust doctrine is
premised on the common rights of all the State's citizens
to use and enjoy the tidal land seaward of the mean high
water mark."). To accommodate these uses, our courts
consequently extended the public's right of accessibility
beyond the foreshore to the beaches and the upper dry sand
areas. Times of Trenton Publ'g Corp. v. Lafayette
Yard Cmty. Dev. Corp., 183 N.J. 519, 532 (2005) (stating
that "the doctrine has been applied in New Jersey to
ensure access by the public to areas of the beach").
"Whether natural, or man-made, the beach is an adjunct
to ocean swimming and bathing and is subject to the Public
Trust Doctrine." Van Ness v. Borough of Deal,
78 N.J. 174, 180 (1978). See also Lusardi, 86 N.J.
at 228 (stating that the scope of the doctrine was expanded
to beaches "[b]ecause the use of dry sand beaches is
practically inseparable from enjoyment of ocean
courts have also emphasized the importance of equal access:
"a modern court must take the view that the public trust
doctrine dictates that the beach and the ocean waters must be
open to all on equal terms and without preference and that
any contrary state or municipal action is
impermissible." Avon, 61 N.J. at 309. Over the
years, our courts have enforced the public trust doctrine by
overturning actions favoring residents over non-residents
with regard to access to and fees for using beaches and
related facilities. In Van Ness, 78 N.J. at 180, the
Court held that a municipality could not set aside part of
its public beach for use by residents only. In
Matthews, 95 N.J. 330-32, the Court held that a
beach owned and operated by a quasi-public association with
close connections to the municipality could not exclude
certain beach-goers from the dry upland portion of the beach.
In Avon, 61 N.J. at 310, the Court overturned an
ordinance that restricted the sale of seasonal beach badges
to residents, which resulted in non-residents paying
disproportionately higher fees for daily and monthly badges.
Slocum, the plaintiff filed a wide-ranging challenge
to the Borough's beach fees and its alleged misuse of the
fees for purposes unrelated to the beach. After a trial, a
Law Division judge invalidated the Borough's beach fee
schedule, finding that it discriminated against non-residents
by doubling the fees on weekends as compared to weekdays, and
by charging more for the cost per day of a weekend daily
badge than the cost per day for a seasonal badge.
Slocum, 238 N.J.Super. at 190. "The majority of
weekend badge purchasers were nonresidents . . . [and b]y
paying a vastly greater per day price for their badges, the
daytrippers have been subsidizing season badge holders."
judge also reasoned that, because the State holds certain
lands in trust for the public, municipalities have a duty to
take special care to account for all "beachfront related
expenditures" and "beachfront related
revenues." Id. at 183, 188. The judge
determined that the Borough had "breached its duty of
loyalty to the public" as trustee under the public trust
doctrine by increasing "beach admission fees,"
rather than real estate taxes, in order to raise general
revenues. Id. at 188. In fact, the judge found that
the Borough had commingled its beach badge revenues with its
general revenues, essentially "operat[ing] the beach
area as though it were a commercial business enterprise for
the sole benefit of its taxpayers." Ibid. He
found: "This conduct resulted in surplus beach fee
revenues being used to subsidize other municipal expenditures
for the exclusive benefit of the residents of Belmar, rather
than being set aside to meet future beach-related
costs." Ibid. Thus, the judge held that the
Borough had violated its "duty under the public trust
doctrine" by "plac[ing] the interest of
Belmar's residents before those of the beachgoers."
remedy for Belmar's past violations of the public trust
doctrine, to prevent future violations, and to effectuate its
obligation as a trustee of its beach-fee related funds, the
judge ordered the Borough to keep clear financial accounts in
Commencing with the 1990 summer season, Belmar shall maintain
complete, accurate, and traceable records documenting the
costs relating to its beachfront facilities. Belmar shall
maintain a separate beach account in which all revenues
collected by the borough, from beach admission fees and any
other beach use fees, shall be deposited, and from which all
expenditures for beach related costs will be paid.
[Id. at 208.]
on extensive expert testimony, the judge also specifically
delineated the allowable beach-related costs that could be
included as components of the Borough's beach fees.
Id. at 196-208.
comply with Slocum, the Borough created a beach
utility fund (beach fund), which was separate from its
municipal general fund. At the time the current litigation
arose, the Borough was still required to comply with
precursor to our legal analysis, we briefly summarize the
evidence presented in the trial court. In 2012, Superstorm
Sandy caused extensive damage along the Borough's
beachfront. The storm virtually destroyed the boardwalk and
several pavilions located along the boardwalk. Some of the
pavilions had been built, or rebuilt after previous storms,
using money raised from beach-badge fees, and they were used
for beach-related purposes. But the Taylor Pavilion was not
built with beach funds and had primarily been used for
community functions unrelated to the beach. The Borough
anticipated that it would receive insurance proceeds from
policies covering the pavilions, as well as money from the
Federal Emergency Management Agency (FEMA) to cover some
reconstruction costs. In an effort to raise private funds
toward the cost of rebuilding the boardwalk, the Borough also
conducted a "buy-a- board" campaign, telling
potential donors that their donations would allow them to pay
for actual boards on the boardwalk.
Borough planned to use insurance proceeds and FEMA
reimbursement money associated with beach-related pavilions
to rebuild the Taylor Pavilion. The Borough also anticipated
using the buy-a-board donations for that purpose. The Borough
Council planned to issue bonds to fund the Taylor Pavilion
construction, and it anticipated using the insurance, FEMA,
and buy-a-board monies to repay the bonds. In addition, to
avoid raising taxes on its residents, the Borough doubled the
parking fees along the street adjacent to the beach, and paid
certain non-beach-related litigation expenses using money
from its beach fund instead of from its general fund.
Plaintiffs filed a nine-count complaint challenging these
actions as violating Slocum, violating the public
trust doctrine, and violating the beach fee statute. After
hearing motions and a two-day bench trial, the trial court
decided the issues in plaintiffs' favor.
defer to a trial court's factual findings so long as they
are supported by substantial credible evidence. Rova
Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65
N.J. 474, 484 (1974). We owe particular deference to a trial
court's evaluation of witness credibility. Cesare v.
Cesare, 154 N.J. 394, 412 (1998). However, we engage in
de novo review of a trial court's legal interpretations.
Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140
N.J. 366, 378 (1995).
begin by addressing the issue of ripeness. In deciding
whether an issue is ripe, the court should consider whether
the issues are fit for judicial review and whether
withholding judicial review would cause hardship to the
parties. K. Hovnanian Cos. of N. Cent. Jersey, Inc. v.
N.J. Dep't of Envtl. Prot., 379 N.J.Super. 1, 9
(App. Div. 2005). On this record, we affirm the trial
judge's decision that the issues were ripe, substantially
for the reasons stated in her thoughtful oral opinions of
October 6, 2015, and October 23, 2015. We add these comments.
trial court noted, the Borough had taken certain concrete
steps toward misallocating some of the beach funds and
violating requirements imposed by Slocum. Under the
Slocum opinion - the validity of which defendants
did not question in the trial court and do not question here
- beach fund monies were to be treated as trust assets.
Slocum, 238 N.J.Super. at 187-88. Slocum
found that the Borough had routinely misused beach revenues,
failed to properly account for beach fees, and "operated
the beach area as though it were a commercial business
enterprise for the sole benefit of its taxpayers."
Id. at 188. Slocum imposed certain
prophylactic remedies to preclude future misuse of beach
funds and make it easier to determine whether future beach
fees were reasonable. Those remedies included a requirement
that the Borough place all beach funds in a dedicated
account. Id. at 208.There was evidence before the
trial court that the Borough was violating the
Slocum decision by placing $727, 000 in buy-a-board
proceeds in a non-beach account. Further, due to the
Borough's failure to use those proceeds to pay off a
boardwalk construction bond, the beach fund was incurring
about $36, 000 a year in interest costs on the bond.
trial court also determined that the parties needed a
decision on the allowable use of FEMA reimbursement funds,
insurance proceeds, and the buy-a-board funds, in time for an
upcoming referendum on whether to issue about $4 million in
bonds to pay for construction of the Taylor Pavilion.
Underlying the referendum was a dispute over whether the
FEMA, insurance, and buy-a-board monies could be used to
repay the bonds. Through a petition drive, objectors to the
rebuilding project had already forced the Borough to hold a
referendum on the bond issue. The record here reflects that
municipal government officials then embarked on a campaign of
disinformation, designed to influence the outcome of the
v. Borough of Belmar, 455 N.J.Super. 316 (App. Div.
2018), a separate lawsuit filed by some of the same
plaintiffs who filed this case, supports the judge's
decision that the dispute in this case was ripe. In
DeSanctis, the municipal clerk drafted an
interpretive statement for the same referendum involved in
the present case. Id. at 322. We affirmed the trial
judge's finding that, viewed in context, the interpretive
statement was not an objective explanation of the referendum.
Id. at 332-33, 335. Instead, it was biased and
designed to "sell" the referendum to voters based
on a representation that the Borough would use FEMA and other
funds to repay the bonds without expense to the
taxpayers.Id. at 331-32. That was part of
the same pattern of ...