Borough of Neptune City v. Borough of Avon-by-the-Sea

• Decision Date: 08 March 1971
• Docket Number: D,AVON-BY-THE-SE
• Citation: 274 A.2d 860,114 N.J.Super. 115
• Parties: BOROUGH OF NEPTUNE CITY et al., Plaintiffs, v. BOROUGH OFefendant.
• Court: New Jersey Superior Court

Page 115

114 N.J.Super. 115

274 A.2d 860

BOROUGH OF NEPTUNE CITY et al., Plaintiffs, v. BOROUGH OF AVON-BY-THE-SEA, Defendant.

Superior Court of New Jersey,

Law Division.

March 8, 1971.

Robert V. Carton, Asbury Park, for plaintiffs (Carton, Nary, Witt & Arvanitis, Asbury Park, attorneys).

Thomas J. Spinello, Avon, for defendant.

SIMMILL, J.S.C.

Defendant Borough of Avon-by-the-Sea (Avon) is a municipality bordering on the Atlantic Ocean. It owns the beach, boardwalk and other facilities east of Ocean Avenue, the street which comprises an ocean-view drive and which runs through Avon's entire length, a distance of some seven blocks. Avon extends westerly to approximately the right of way of the New York and Long Branch Railroad Co., some seven blocks from Ocean Avenue.

Nepture City abuts Avon on the west. It has no oceanfront.

Judicial notice is taken that for many years the beaches on the North Jersey shore were open beaches, but with the advent of automobile traffic and the ever-increasing and bathing facilities became overcrowded and bathing facilities became overcroweded and the beachfront municipalities began to take steps to limit the congestion by regulating the use of the beach facilities and by charging fees. In Kirsch Holding Co. v. Manasquan, 24 N.J.Super. 91, 92 A.2d 582 (App.Div.1952), the charging of fees was held invalid, absent legislation authorizing same, and this led to the adoption of N.J.S.A. 40:61--22.20, which provides as follows:

The governing body of any municipality bordering on the Atlantic ocean, tidal water bays or rivers which owns or shall acquire, by any deed of dedication or otherwise, lands bordering on the ocean, tidal water bays or rivers, or easement rights therein, for a place of resort for public health and recreation and for other public purposes shall have the exclusive control, government and care thereof and of any boardwalk, bathing and recreational facilities, safeguards and equipment, now or hereafter constructed or provided thereon, and may, by ordinance, make and enforce rules and regulations for the government and policing of such lands, boardwalk, bathing facilities, safeguards and equipment; provided, that such power of control, government, care and policing shall not be construed in any manner to exclude or interfere with the operation of any State law or authority with respect to such lands, property and facilities. Any such municipality may, in order to provide funds to improve, maintain and police the same and to protect the same from erosion, encroachment and damage by sea or otherwise, and to provide facilities and safeguards for public bathing and recreation, including the employment of lifeguards, by ordinance, make and enforce rules and regulations for the government, use, maintenance and policing thereof and provide for the charging and collecting of reasonable fees for the registration of persons using said lands and bathing facilities, for access to the beach and bathing and recreational grounds so provided and for the use of the bathing and recreational facilities, but no such fees shall be charged or collected from children under the age of 12 years.

Pursuant to the powers granted by this statute Avon adopted an ordinance which provided, among other things, for the registration and issuance of badges to those who desired to avail themselves of the beachfront and water. The fee therefor, insofar as it affects this case, was set at $10 for the season; the fee for monthly badges was set at $7. On February 24, 1970 the ordinance was amended, and this set the fee for monthly badges at $10. The nub of the present controversy is that part of the section in the amending ordinance which reads as follows:

Season badges shall be sold to and only for the use of persons who are residents or taxpayers of the Borough of Avon and the members of their immediate family who are members of and reside in the same household unit.

For the purpose of this ordinance a resident shall include any person living within the territorial boundaries of Avon for not less than 60 consecutive days in the calendar year in which a badge is requested. A taxpayer is a person who owns real estate in the Borough of Avon, legal title to which is recorded in said person's name.

The effect of this ordinance is that residents and taxpayers of Avon may purchase a season badge for $10. All others must purchase monthly badges at $10 a month or $20 for the season. The present complaint attacks the validity of the amendment on the ground that it discriminates against the residents of Neptune City in regard to access and use of the bathing beaches of Avon. Individual persons residing in Neptune City joined as parties plaintiff, perhaps out of an abundance of caution.

Plaintiffs contend that the decisions found in the case law of New Jersey prohibit a municipality from discriminating on the basis of residence; that such discrimination is prohibited by the Equal Protection Clause of the 14th Amendment, and that plaintiffs' access to navigable waters is being hindered, contrary to the common law. Defendant argues that both case law and the United States Constitution allow discrimination on the basis of residence where there is a reasonable basis for doing so, and it contends that the special burdens which Avon bears because of its proximity to a beach, the lure of which transcends municipal boundaries, justifies a different and higher rate of admission for nonresidents.

As authority for their prosition plaintiffs cite Thompson v. Ocean Grove, 55 N.J.L. 507, 26 A. 798 (Sup.Ct.1893); Morgan v. Orange, 50 N.J.L. 389, 13 A. 240 (Sup.Ct.1888), and Jersey City v. Chasan, 81 N.J.L. 315, 79 A. 1058 (Sup.Ct.1911). In Thompson and Morgan the court struck down ordinances which imposed a higher license fee on nonresident peddlers than on residents. Similarly, in the Jersey City case, the court held that requiring a three-month residency period prior to granting a driver's license to operate a horse-drawn vehicle was unlawful. The rationale in all three of these cases was derived from Muhlenbrinck v. Long Branch Commissioners, 42 N.J.L. 364, 369 (Sup.Ct.1880), where the court held that imposing such a hindrance on nonresidents for the benefit of residents is a restraint of trade, tending toward monopoly, and hence illegal.

In Nutley v. Brandt, 12 N.J.Misc. 670, 174 A. 244 (Sup.Ct.1934), the court invalidated an ordinance which required a nonresident to obtain a permit to distribute circulars because, among other things, the ordinance assumed that all nonresidents were evildoers and this assumption was unreasonable. Hence, none of these cases is dispositive of the question posed here.

In Brindley v. Lavallette, 33 N.J.Super. 344, 110 A.2d 157 (Law Div.1954), the court struck down an ordinance prohibiting nonresident use of the beach saying:

'* * * (D)iscrimination against nonresidents in an ordinance invalidates it, excepting possible special circumstances which would justify the discrimination. (at...