Gewirtz v. City of Long Beach
| Decision Date | 24 March 1972 |
| Citation | 69 Misc.2d 763,330 N.Y.S.2d 495 |
| Parties | , 2 Envtl. L. Rep. 20,523 Albert GEWIRTZ et al., Plaintiffs v. The CITY OF LONG BEACH and The State of New York, Defendants. |
| Court | New York Supreme Court |
The complaint in this action seeks a judgment against the City of Long Beach declaring that the provisions of Local Law No. IX/70 are illegal, unconstitutional, null and void and of no force and effect and that such Local Law No. IX/70 is contrary to reservations, covenants and restrictions in prior instruments of record.
Local Law No. IX/70, which is the subject of this action, was enacted by the Council of the City of Long Beach on November 4, 1970. It was entitled 'A local law amending the City Charter Re Beach Park.' By the terms of Local Law No. IX/70, Section 98 of the City Charter was amended to read as follows:
'Section 98. BEACH PARK.
1. The land owned with all the improvements thereon by the city of Long Beach extending from the northerly line of the Boardwalk as now or hereafter constructed or if extended east and west, southerly to the high water line of the Atlantic Ocean, and from the westerly to the easterly boundary of the said city, is hereby created a public park For the residents of the City of Long Beach and their invited guests. (Italics inserted to indicate new matter added by the amendment.)
2. The Council of the City of Long Beach shall be ordinance provide for the supervision and maintenance of such public park by the city, including the furnishing of an adequate number of lifeguards and their necessary equipment, the cleaning of the beach front, the maintenance of such other facilities as the council may deem necessary, and the said ordinance shall prescribe a reasonable charge to be collected by the city from persons entering upon said public park.'
Section 98 of the Charter was originally added to the Charter by Local Law No. IV/36 enacted April 21, 1936. Section 98 of the Charter, as amended in 1970, is identical with Section 98 as originally enacted except that the amendatory legislation added to subdivision 1, as above noted by italics, the language 'for the residents of the City of Long Beach and their invited guests' immediately after the words 'public park' in the original version.
Thereafter, pursuant to the authority granted by the City Charter and by Local Law IV/36 the City Council enacted an ordinance for the supervision and maintenance, regulation and control of the ocean beach park and the fixing of charges for its use. That ordinance is believed to have been Ordinance No. 351 adopted April 6, 1937 (forming part of Exhibit 40). In succeeding years the ordinance was from time to time amended in various respects, but principally in regard to charges for the use of the park. In 1957 the City Council adopted an ordinance in relation to the revision, codification and amendment of its ordinances and which created the 'Municipal Code of the City of Long Beach.' The Municipal Code became effective January 1, 1959. The ordinance provisions relating to the ocean beach park created in 1936 became Article 1 of Chapter 6 of the Municipal Code under the title 'Ocean Beach Park.'
Section 1 of Ordinance No. 351/37 was entitled 'Creation of Ocean Beach Park.' Making reference to authority granted by § 97 of the City Charter and Local Law IV/36, Section 1 (now Municipal Code, Section 6--101) described the area of the public park in the same manner as Local Law IV/36 and provided that the land and improvements thereon owned by the City of Long Beach in such area were 'hereby created a public park to be known as the Ocean Beach Park of the City of Long Beach.' The balance of the provisions of the Ordinance No. 351/37 dealt with a variety of matters pertaining to supervision, maintenance, regulation and control of the public park. Section 9 of Ordinance No. 351/37 set forth the charge or price for admittance to and use of the Ocean Beach Park and its facilities for bathing purposes. With the adoption of the Municipal Code the matter of such admission charges was covered in Section 6--106 of Article 1 of such Code.
On April 6, 1971 the City Council adopted Ordinance 1034/71 entitled 'Ordinance Amending the Municipal Code Re Ocean Beach Park.' This amendatory ordinance completely revised Section 6--106 of the Municipal Code and provided for a new schedule of charges for residents of the City of Long Beach and their guests.
At all times prior to 1970 the Ocean Beach Park had been open for use by residents and non-residents.
A previous attempt by the Council of the City of Long Beach to restrict the use of its Ocean Beach Park to residents of the City and their invited guests became the subject of litigation in 1970. On April 7, 1970 the Council adopted Ordinance No. 967/70 for the purpose of amending the provisions regulating who was permitted to use the Ocean Beach Park and the conditions under which persons could make use of such facilities. Briefly stated, prior to the 1970 amendment no person, except children 12 years of age or under, were permitted to use the area unless they had paid admission charges fixed by other portions of the Code and no one was permitted to use the area for any purpose between the hours of 8:00 p.m. and 9:00 a.m. except employees engaged in the operation of the Ocean Beach Park.
Ordinance No. 967/70 retained the original provisions set forth in Sections 6--105 but added, in a separate subdivision, language which restricted the use of the Ocean Beach Park and the waters adjacent to it to residents of the City of Long Beach and their invited guests. That Ordinance was challenged in the case of Kalin v. The City of Long Beach (Nassau County Index No. 4711/70) which originally took the form of an Article 78 proceeding but which was ultimately treated and tried as an action for a declaratory judgment. The plaintiffs (petitioners) in that prior action were not identical with the plaintiffs in this action although Albert and Paula Gewirtz, who are plaintiffs in the present action, were plaintiffs (Petitioners) in such earlier action. In that earlier case the Court held that the attempt, in effect, to amend Local Law 4/36 by the enactment of Ordinance 967/70 was not an acceptable method of converting the public park from a facility open to the public at large to one open only to the residents of the City of Long Beach and their invited guests. The Court in that case further indicated that the City of Long Beach was bound by Local Law 4/36 until that law was amended in the manner prescribed by the Municipal Home Rule Law (). The Court in the earlier case expressly stated that it did not reach the challenge to the constitutionality of Ordinance 967/70 nor did it find it necessary, in view of its holding that such Ordinance was invalid, to determine other issues relating to such matters as ownership of accreted lands and the claim of extinguishment of a right of way by adverse use.
Following the determination made in the earlier case, the Council of the City of Long Beach sought to achieve the goal of a restricted beach by enacting Local Law IX/70 on November 4, 1970 and it is that latest enactment which has been the subject of challenge in the present action.
As originally commenced, the plaintiffs in this action were Albert Gewirtz and Paula Gewirtz. At the commencement of the trial a motion was made and not opposed to permit one, Judith Friedlaender, to intervene as an additional party plaintiff. That motion was granted and it was consented in open court that the action might proceed under an amended title showing the plaintiffs to be Albert Gewirtz, Paula Gewirtz and Judith Friedlaender as plaintiffs. It was further stipulated that the amended complaint (proposed complaint of plaintiff-intervenor) which had been served upon the defendants in this action on or about May 28, 1971 would constitute the complaint of the plaintiffs and that the answer previously interposed to the original complaint would stand as the answer to the said amended complaint. It should be added that the amended complaint is identical in all respects with the original complaint except that a subparagraph '(b)' was added to paragraph 1 to allege the status of the plaintiff-intervenor, Judith Friedlaender.
In the earlier litigation referred to above it was claimed by the City of Long Beach that the plaintiffs (petitioners) in that earlier action lacked standing to sue. It was determined in the earlier litigation that two of the four plaintiffs (petitioners) did lack standing. However, it was also determined that Albert Gewirtz and Paula Gewirtz did have standing to maintain that earlier action. In the present action the defendants have not questioned the standing of the plaintiffs Gewirtz nor that of the plaintiff-intervenor Friedlaender.
The plaintiffs Gewirtz are non-residents of the City of Long Beach and are residents and taxpayers of the State of New York, residing at Lido in the Town of Hempstead, Nassau County, New York. The plaintiff-intervenor, Judith Friedlaender, is a non-resident of the City of Long Beach and is a resident and taxpayer of the State of New York, residing in the County and City of New York.
A summary of the essential allegations set forth in the complaint of the plaintiffs follows. The beach front within the corporate boundary lines of the defendant, City of Long Beach (hereinafter referred to as 'City') was acquired by the City in the period 1935 to 1967 by...
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