61 N.J. 296, 294 A.2d 47 (1972)
Borough of Neptune City, an adjacent inland municipality, and two of its residents challenged an ordinance of the Borough of Avon-by-the-Sea that imposed higher beach fees on non-residents.1 Avon is a seasonal resort community bordering the Atlantic Ocean.2 Its year-round population of 1850 increases to about 5500 people in the summer, not counting day visitors.3 The municipality owns and maintains an elevated boardwalk and a stretch of sand between Ocean Avenue and the ordinary high water line.4 This area has been dedicated for public beach recreational purposes and is used for bathing, sunning, and other beach activities.5
Years ago Avon's beach was free to all.6 With the advent of automobile traffic and increasing numbers of vacationers the beaches became overcrowded.7 Municipalities began to regulate use and charge fees to limit congestion and cover costs of lifeguards, policing, cleaning, erosion control, and expanded municipal services.8 In 1969 Avon issued 32,741 badges of all categories and collected $149,758.15 in revenue from beachfront operations, which was deposited into the borough's general revenues.9 Legislative authority to charge such fees was granted by statutes in 1950 and 1955 applicable to municipalities owning lands for public resort and recreation.10
Until 1970 Avon's ordinance made no distinction in charges between residents and non-residents.11 The 1970 amendment restricted the sale of season badges priced at $10 to residents and taxpayers of Avon and their immediate families.12 It made the monthly badge rate the same as the season rate.13 Daily badge fees increased from $1.00 and $1.25 to $1.50 and $2.25.14 A resident was defined as any person living within the borough for not less than 60 consecutive days in the calendar year.15 This resulted in non-residents such as those from Neptune City paying twice as much for seasonal use through two monthly badges.16
Avon sought to justify the discrimination by showing an approximately $50,000 deficit between 1969 user fees and beach operation and maintenance costs.17 Plaintiffs contested some of the cost allocations.18 No demonstration was made that the discriminatory schedule closed any gap.19 The Law Division sustained the ordinance.20 Plaintiffs appealed and the Supreme Court granted their motion to certify the appeal to the Appellate Division before argument there.21
Whether an oceanfront municipality may charge non-residents higher fees than residents for the use of its beach area?22
Under the public trust doctrine, lands owned by a municipality and dedicated to public beach recreational purposes must remain open to all citizens on equal terms without preference or discrimination based on residency, although reasonable uniform fees may be charged to cover maintenance and operational costs.23
No. Avon owns the stretch of sand dedicated for public beach use between Ocean Avenue and the high water line.24 The 1970 amendatory ordinance restricted season badges at the $10 rate to residents defined as those living in the borough for at least sixty consecutive days.25 It charged non-residents from Neptune City twice as much through monthly badges and higher daily rates.26 This directly violated the doctrine's mandate of equal access.27
The amendatory ordinance is invalid and must be set aside, with the judgment operating prospectively from January 1, 1973, to avoid practical confusion while affirming that beach fees must be uniform for residents and non-residents alike.28
Related opinions on this issue
Joined by Justice Mountain
Justice Francis dissented from the majority's application of the public trust doctrine.29 He contended that the doctrine applies solely to the state-owned strip of beach seaward of the mean high water mark.30 The upland beach area above that mark, owned by the municipality, is not subject to the same public rights requiring equal access.31
Francis argued that Avon could therefore charge higher fees to non-residents for use of its dedicated upland property.32 This position diverges from the majority by limiting the doctrine's reach and permitting differential treatment based on residency.33 He concluded that the fee schedule was neither arbitrary nor invidiously discriminatory and would have affirmed the trial court's judgment upholding the ordinance.34