Susko v. Borough of Belmar
| Decision Date | 22 April 2019 |
| Docket Number | DOCKET NO. A-3059-16T2 |
| Parties | John E. SUSKO, Francine M. Dolan, Kyle Brown, Michael Seebeck, Patricia Corea, Noreen Dean, James Bean, and Joy DeSanctis, Plaintiffs-Respondents, v. BOROUGH OF BELMAR and Mayor and Council of the Borough of Belmar, Defendants-Appellants. |
| Court | New Jersey Superior Court — Appellate Division |
William W. Northgrave, Newark, 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, Belmar, 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).
Before Judges Alvarez, Nugent and Reisner.
The opinion of the court was delivered by
REISNER, J.A.D.
In 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, 569 A.2d 312 (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).2
In 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.
We 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.
Under 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.
As background, it is helpful to briefly review the public trust doctrine and the Slocum decision.
The 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, 4 A.3d 542 (2010) (quoting Matthews v. Bay Head Improvement Ass'n, 95 N.J. 306, 316-17, 471 A.2d 355 (1984) ). Accord Borough of Neptune City v. Borough of Avon-By-The-Sea, 61 N.J. 296, 303-04, 294 A.2d 47 (1972) (). 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, 879 A.2d 112 (2005). "[W]ithout access the doctrine has no meaning."
Id. at 53, 879 A.2d 112 (citing Matthews, 95 N.J. at 323, 471 A.2d 355 ).
Our 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, 294 A.2d 47. See Lusardi v. Curtis Point Prop. Owners Ass'n, 86 N.J. 217, 228, 430 A.2d 881 (1981) (). 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, 874 A.2d 1064 (2005) (). "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, 393 A.2d 571 (1978). See also Lusardi, 86 N.J. at 228, 430 A.2d 881 ().
Our 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, 294 A.2d 47. 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, 393 A.2d 571, 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. at 330-32, 471 A.2d 355, the Court held that a beach owned and operated by a quasi-public association with close connections to the municipality could not exclude certain beachgoers from the dry upland portion of the beach. In Avon, 61 N.J. at 310, 294 A.2d 47, 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.
In 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, 569 A.2d 312. "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." Ibid.
The 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, 569 A.2d 312. 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, 569 A.2d 312. 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...
To continue reading
Request your trial
-
388 Route 22 Readington Realty Holdings, LLC v. Twp. of Readington
...of seasonal beach passes to residents, which resulted in non-residents paying disproportionally higher fees for daily and monthly passes. Id. at 592 (citing Avon, 61 N.J. 310). N.J.S.A. 40:61-22.20(a) "amounts to a delegation to a municipality having a dedicated beach . . . of the state's p......