NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3059-16T2

JOHN E. SUSKO, FRANCINE

M. DOLAN, KYLE BROWN, 

MICHAEL SEEBECK, PATRICIA

COREA, NOREEN DEAN, JAMES

BEAN, and JOY DESANCTIS,1

Plaintiffs-Respondents,

v.

BOROUGH OF BELMAR and 

MAYOR AND COUNCIL OF

THE BOROUGH OF BELMAR,

Defendants-Appellants.

______________________________

Argued September 20, 2018 – Decided April 22, 2019

Before Judges Alvarez, Nugent and Reisner.

On 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).

 

1

 Plaintiffs Dolan and DeSanctis passed away while this litigation was 

pending. 

APPROVED FOR PUBLICATION

April 22, 2019

APPELLATE DIVISION
A-3059-16T2 2

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). 

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 (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 
A-3059-16T2 3

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 

 

2

 The trial court memorialized its decisions in orders dated January 27, 2016, 

September 27, 2016, and February 16, 2017. 
A-3059-16T2 4

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. 
A-3059-16T2 5

I

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 (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). 

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. 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 
A-3059-16T2 6

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 swimming").

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. 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 
A-3059-16T2 7

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. 

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. "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. 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 
A-3059-16T2 8

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. " 

Ibid.

As a 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 the future:

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.]
A-3059-16T2 9

Based 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. 

To 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 Slocum. 

II

As a 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-
A-3059-16T2 10

board" campaign, telling potential donors that their donations would allow 

them to pay for actual boards on the boardwalk. 

The 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. 

 III

We will 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, 
A-3059-16T2 11

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).

We 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. 

As the 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 
A-3059-16T2 12

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 208.3 

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. 

The 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, 

 

3

 Our view of Slocum finds support in the following observation: 

[W]e are not convinced that Slocum should be read, as 

plaintiffs demand, to require a municipality to 

maintain a separate account for beach tag revenue in 

all cases. Slocum provides an example of a remedy 

that may be used in a case where serious accounting 

irregularities have been proven. The nature of the 

remedy is necessarily dependent on the severity of the 

irregularities uncovered. 

[Secure Heritage, Inc. v. City of Cape May, 361 N.J. 

Super. 281, 310 (App. Div. 2003).] 
A-3059-16T2 13

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 referendum. 

DeSanctis 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.4 Id. at 331-32. That was part of the 

same pattern of conduct involved here, including the mayor's public statements 

 

4

 In DeSanctis, we also affirmed the trial court's award to plaintiffs of about 

$40,000 in counsel fees under the CRA, for unlawfully interfering with 

plaintiffs' substantive right of referendum. Id. at 334-35. See Tumpson v. 

Farina, 218 N.J. 450, 480-81 (2014). 
A-3059-16T2 14

and emails to constituents, designed to convince voters that the $4 million 

bond issue would cost the Borough's taxpayers nothing. 

The same trial judge who presided over this case was handling 

DeSanctis and was therefore familiar with the Borough's campaign to convince 

voters to support the referendum. The judge was also familiar with the long 

history of disputes over Belmar's use or misuse of beach funds. That litigation 

included an injunction issued by Assignment Judge Lawrence M. Lawson, 

precluding the Borough from spending beach funds to rebuild the Taylor 

Pavilion.5 The trial judge also construed the parties' joint submission of issues 

– which referred to "the Borough's plans" to take the disputed actions – as an 

admission by the Borough that it had such plans. We find no error in the trial 

judge drawing that inference. 

Given the history of this litigation, we cannot say the trial judge erred in 

deciding that there was a genuine dispute over which assets belonged in the

beach fund and that there was a current need for a declaratory ruling as to the 

proper allocation of the funds, even in the absence of a municipal 

 

5

 The injunction was dissolved and the litigation dismissed without prejudice, 

after the Borough abandoned its plan to implement a bond ordinance that 

would have explicitly funded non-beach construction with beach funds. The 

evidence supports a conclusion that, in adopting the next ordinance, Ordinance 

2015-25, the Borough planned to accomplish indirectly that which Judge 

Lawson had enjoined it from doing directly. 
A-3059-16T2 15

appropriation of the funds or other legally binding action by the Borough 

Council. 

IV

Several of defendants' additional arguments are clearly without merit 

and warrant only brief discussion. See R. 2:11-3(e)(1)(E). 

Defendants argue that they were entitled to use the buy-a-board funds to 

reconstruct the Taylor Pavilion and the trial court erred in holding otherwise. 

We disagree. The buy-a-board funds were not beach fees. However, they 

were voluntary contributions, raised through a solicitation that clearly 

indicated they would be used to pay for the reconstruction of the boardwalk. 

The proper use of those contributions is governed by the statute 

addressing the use of funds raised by bequests, legacies and gifts. That statute, 

N.J.S.A. 40A:5-29, states in pertinent part: "Any local unit is authorized and 

empowered to accept . . . gifts made to it and is empowered to utilize such . . . 

gifts in the manner set forth in the conditions of the . . . gift . . . ." (emphasis 

added). For the reasons stated in the trial judge's October 23, 2015 oral 

opinion, we conclude that the buy-a-board donations were solicited for the 

explicit purpose of rebuilding the boardwalk, and the language of the 

solicitations constituted the "conditions" of the gifts or donations. N.J.S.A. 
A-3059-16T2 16

40A:5-29. The judge's factual findings, underlying her legal conclusions, are 

supported by substantial credible evidence. Rova Farms, 65 N.J. at 484. 

As the judge concluded, the fundraising proceeds constitute a trust for 

the purpose for which they were solicited, and hence, the funds must be used 

for boardwalk construction and cannot be used to rebuild the Taylor Pavilion. 

Accordingly, the donations must be deposited in the beach fund and used to 

pay for reconstruction of the boardwalk. Defendants' arguments to the 

contrary are without sufficient merit to warrant further discussion. R. 2:11-

3(e)(1)(E). 

On this appeal, defendants do not challenge the substance of the trial 

court's decision determining the extent to which beach funds could be used to 

reconstruct the Taylor Pavilion, although they contend the issue was not ripe 

for decision. The funds at issue derived from pavilions whose prior 

construction was paid for with beach fees. The court held that when those 

pavilions were destroyed by Sandy, the insurance proceeds and FEMA 

reimbursement funds received, or to be received in future by the Borough, had 

to be allocated to the beach fund and used for beach purposes. With respect to 

the Taylor Pavilion, which was primarily to be used for non-beach purposes, 

the judge held that a portion of those funds could be used to pay the 

proportionate cost of rebuilding the relatively small area of the building that 
A-3059-16T2 17

would be used for beach purposes. We affirm that decision, as to ripeness and 

as to the merits, for the reasons stated by the trial court. 6

We agree with the trial judge that the Borough was not entitled to spend 

money from the beach fund to settle claims from a lawsuit (known as the 

"Partner Litigation") that were unrelated to the beach. That issue was ripe for 

the court's consideration. While the case was pending in the trial court, the 

parties were able to agree on which portion of the Partner Litigation settlement 

should be paid from the beach fund and which portion should be paid from the 

general fund. Accordingly, they agreed that the general fund would reimburse 

the beach fund for the former's share of the settlement obligation. 

 V

We next turn to the parking fee issue, which concerns parking spaces on 

the beach side of Ocean Avenue. The Slocum decision apparently assumed 

that parking fees could be considered beach-related income, because it held 

that the administrative costs associated with maintaining the parking meters 

could be charged to the beach fund. See Slocum, 238 N.J. Super. at 206. 

Slocum also approved the use of beach funds to pay for what it called "traffic 

and paint supplies" on Ocean Avenue adjacent to the beach, because they were 

 

6

 Defendants' brief advised us that the Taylor Pavilion has now been rebuilt. 

We presume defendants complied with the trial court's order in paying for the 

reconstruction. 
A-3059-16T2 18

associated with "the summer parking lines." Id. at 199-200. The Slocum court 

further approved allocating "a small percentage of road repair costs" to the 

beach fund due to "increased volume of traffic on the streets during the 

summer months[.]" Id. at 202. As previously noted, defendants did not ask 

the trial court to relieve them from the orders resulting from Slocum, but 

instead accepted that the Borough was still bound by the Slocum decision. As 

a result, we need not decide whether the public trust doctrine or N.J.S.A. 

40:61-22.20 apply to parking fees generally. However, we add these 

observations pertinent to this particular case. 

At oral argument on May 6, 2016, both sides agreed on the essential 

facts concerning parking in the Borough. There are no parking lots where 

beach users can park. Therefore, anyone arriving by car to use the beach must 

use street parking. The Borough does not charge for street parking (i.e., 

through meters or parking kiosks) anywhere except for the parking spaces on 

the eastern side of Ocean Avenue, directly adjacent to the beach. Under those 

unique circumstances, it is reasonable to conclude that the parking fees are a 

form of beach fee – a fee aimed at persons who are parking in order to obtain 

access to the beach. The Borough has essentially conceded that point for 

decades; it has allocated sixty percent of the parking revenue to the beach fund 

and forty percent to either its general fund or a parking utility fund, on the 
A-3059-16T2 19

theory that the majority of parking revenue comes from beach users, but some 

parking revenue is earned at night from people who do not intend to use the 

beach. In turn, Slocum allows the Borough to charge the beach fund for the 

upkeep of the meters and for other costs related to the parking spaces. 

We affirm the trial court's finding that in 2013 and 2014, the Borough 

departed from the sixty-forty split of income between the parking utility fund 

and the beach fund without a financial justification.7 We also find that the trial 

court's decision, ordering the allocation to the beach fund of parking fees paid 

during hours the beach was open to the public, was reasonable and supported 

by the evidence. Rova Farms, 65 N.J. at 484. 

There is also substantial credible evidence to support the judge's finding 

that the one hundred percent increase in the hourly parking fee, from a dollar 

to two dollars per hour, was not imposed to pay for permissible beach-related 

costs, but was instead aimed at increasing the Borough's general revenues to 

avoid raising taxes on its residents. Contrary testimony from the Borough's 

CFO was vague and not supported by documentary evidence. The mayor and 

 

7

 In her deposition testimony, the Borough's Chief Financial Officer (CFO), 

Robbin Kirk, admitted that she did not note any interfund loan on the 

Borough's books and records, which would have indicated an intent to 

reimburse the beach fund for a temporary fund transfer to the parking fund. 

The record supports the judge's finding that Kirk had no intention of causing 

any such repayment. 
A-3059-16T2 20

Borough Council members repeatedly expressed their intent to increase 

general revenues without raising taxes, and the Council rejected proposals to 

impose parking fees anywhere else in the town. Given this particular town's 

past history as detailed in Slocum, and its current policy of charging for 

parking on the beachfront and nowhere else in the town, we conclude there 

was sufficient credible evidence to support the trial court's findings that the 

parking charge amounted to a beach fee and the town violated N.J.S.A. 40:61-

22.20, by imposing on beach users an unreasonable increase in that fee. 

To be clear, we are not holding that any and all fees for parking near a 

beach necessarily constitute beach fees; that issue is not before us. However, 

the record here supports the trial court's finding that these parking fees were 

beach fees. The record also supports the court's conclusion that in doubling 

the fees, the Borough was intentionally and improperly using beach fees to 

raise money for its general fund, to avoid raising taxes on its residents. 

"Limiting access by placing an unreasonable economic burden on the public 

undermines the objectives of the public trust doctrine to the same extent as any 

physical barrier. . . . The notion that lands are to be held in public trust, 

protected and regulated for the common use and benefit, is incompatible with 

the concept of profit." Raleigh Ave. Beach Ass'n v. Atlantis Beach Club, Inc., 

370 N.J. Super. 171, 193 (App. Div. 2004), aff'd, 185 N.J. 40 (2005). 
A-3059-16T2 21

VI

Before reaching the CRA counsel fee issue, we find it necessary to 

address more precisely the violations the Borough committed. We agree with 

the trial judge's conclusions that the Borough misallocated and misused some 

beach-related funds, for the reasons she stated. However, apart from parking 

fees, the judge did not decide the reasonableness of the Borough's beach fees, 

an issue that was not before her in any event. In their appellate brief, plaintiffs 

argue that we can infer from the record that they paid unreasonable beachbadge fees, but their claim is unsupported by the evidence. Plaintiffs assert 

that if the Borough misspent money from the beach fund, or failed to deposit 

monies into the fund that belonged there, the beach-badge fees the Borough 

charged must necessarily be unreasonable. We cannot agree. 

The Slocum case illustrates the kind of expert evidence needed to 

present a rate-setting case concerning the reasonableness of beach-badge fees. 

See Slocum, 238 N.J. Super. at 192-93, 196-207. The evidence in this case did 

not approach that level of detail. There was, for example, no evidence as to 

the reasonableness of the amount of the reserve in the beach fund. 8 At most, 

there was evidence that buy-a-board funds that should have been placed in the 

 

8

 Our courts have consistently recognized that a municipality may maintain "a

reasonable annual reserve designed to meet expected future capital expenses " 

connected with the beach. E.g. Avon, 61 N.J. at 311. 
A-3059-16T2 22

beach fund were placed in another account, some beach-related funds were 

improperly spent to pay litigation expenses, and the Borough government had 

future plans to spend beach funds on non-beach projects. However, those 

plans had not yet been implemented and might never have been implemented if 

the voters disapproved the bond ordinance for the Taylor Pavilion. There was 

also evidence that the beach fund could have avoided paying about $36,000 in 

annual bond interest if the Borough had used the buy-a-board proceeds to pay 

down the bonds. But, there was no evidence that the $36,000 would have 

made a difference to the reasonable amount of beach fees charged. 

Plaintiffs did not introduce the type of expert rate-setting testimony that 

would have been needed to support a conclusion that the current beach-badge 

fees the Borough was charging were unreasonable. In fact, their complaint did 

not even specifically allege that those rates were unreasonable. 9 Nor did they 

introduce the type of expert evidence the court relied on in Slocum concerning 

the reasonableness of the amount of the beach fund reserve. Those are not 

trivial evidentiary gaps. Superstorm Sandy had recently inflicted tens of 

millions of dollars in damage to the beach and boardwalk. Absent expert 

 

9

 On December 16, 2014, the Borough Council passed Resolution 2014-196, 

increasing the beach-badge fees for 2015. However, plaintiff's second 

amended complaint, which was the basis for this litigation, did not challenge 

that resolution or seek to enjoin the increases from taking effect. 
A-3059-16T2 23

testimony, one cannot say that it was unreasonable for the Borough to maintain 

a significant reserve in the beach fund against potential future storm damage, 

or that it was unreasonable to raise the beach-badge fees. 

After reviewing the transcripts, we also have reservations about some of 

the language the court used concerning the absolute duty to maintain beach fee 

proceeds in the beach account at all times, and the imprecise use of language 

concerning the identity of money raised through beach fees. To address the 

latter issue first, both plaintiffs and the court repeatedly referred to the funds 

as belonging to beachgoers, as though they had an individual right to the 

money, which would be violated by any misallocation of the funds. The 

characterization is inaccurate. The funds belong to the municipality, albeit 

they can only be used for restricted purposes relating to the beach, as provided 

in N.J.S.A. 40:61-22.20.

The Borough's CFO, Robbin Kirk, testified that it is not unusual for a 

municipal fiscal administrator to transfer money back and forth between 

accounts during a fiscal year to meet temporary shortages in one account or the 

other. Kirk testified that on occasion, she had transferred funds from another 

account to the beach fund to meet a temporary shortfall in the beach fund, and 

vice versa. She testified that was not deemed improper accounting so long as 

the Borough's accounts documented the interfund transfers, so that money 
A-3059-16T2 24

temporarily transferred from one fund to another would be reimbursed to the 

proper fund. There was no testimony, expert or otherwise, that this was 

improper or not a generally accepted practice in municipal finance and 

accounting. 

The Borough does not challenge that it remains bound by the accounting 

procedures set forth in Slocum. However, that does not necessarily mean that 

any violation of Slocum is itself a violation of the public trust doctrine or of 

plaintiffs' substantive civil rights. In ruling otherwise, the trial court 

essentially morphed prophylactic remedies or procedures, designed to prevent 

violations of the public trust doctrine, into elements of the doctrine itself and 

characterized any variation from those procedures as violations of individual, 

substantive civil rights. Taking that approach conflates substantive rights with 

procedural remedies, may unduly involve courts in the day-to-day business of 

municipal accounting, and may encourage unnecessary litigation. See Secure 

Heritage, 361 N.J. Super. at 310 (declining to read Slocum as "requir[ing] a 

municipality to maintain a separate account for beach tag revenue in all cases"

provided the municipality has an appropriate accounting system in place for its 

general fund). 10

 

10

 The Legislature recently reaffirmed the broad authority of the Department 

of Environmental Protection (DEP) to protect the public's right of access to 

(continued)
A-3059-16T2 25

VII

Next, we address the CRA issue and plaintiffs' claim for counsel fees. 

We begin with the observation that plaintiffs did not need to assert a 

substantive, individual civil right in order to have standing to file this lawsuit. 

"[T]he standing of a taxpayer to attack illegal disbursements of public funds or 

other illegal official action has been long and firmly established." Crescent 

Park Tenants Ass'n v. Realty Equities Corp. of N.Y., 58 N.J. 98, 102 (1971). 

Consequently, the fact that plaintiffs filed the lawsuit to rectify misallocation 

of expenses for the Partnership Litigation, correct violations of accounting 

procedures required by Slocum, and prevent the future misuse of various 

funds, does not determine their right to counsel fees under the CRA. 

 

(continued)

tidally flowed waters and their adjacent shorelines under the public trust 

doctrine, through the agency's permitting authority in N.J.S.A. 12:5-3(d) 

(regulating waterfront development) and N.J.S.A. 13:19-10(h) (regulating 

costal development). See L. 2015, c. 260. Those statutory amendments 

responded to our opinion in Hackensack Riverkeeper, Inc. v. New Jersey 

Department of Environmental Protection, 443 N.J. Super. 293 (App. Div. 

2015), which invalidated DEP's public access rules. See Senate Env't & 

Energy Comm. Statement to S. 3321 (Jan. 7, 2016). Pursuant to its current 

regulations, N.J.A.C. 7:7-16.9, under the circumstances set forth therein, DEP 

has authority to review the reasonableness and use of beach-badge and parking 

fees. N.J.A.C. 7:7-16.9(v). See 49 N.J.R. 3145(a) (Sept. 18, 2017). See also

N.J.A.C. 7:7-9.48 (addressing public trust rights). In addition, the Supreme 

Court previously recognized DEP's power to review beach fees as part of its 

authority to regulate coastal development. See Raleigh Avenue, 185 N.J. at 

61-62. DEP's exercise of its oversight authority may mitigate the need for 

individual lawsuits challenging the reasonableness of beach fees. 
A-3059-16T2 26

The CRA does not extend the right to counsel fees for any and all 

successful litigation against a government entity. It is limited to successful 

litigation concerning individual substantive rights guaranteed by "laws" or by 

the Constitution. The CRA provides in relevant part:

Any person who has been deprived of any substantive 

due process or equal protection rights, privileges or 

immunities secured by the Constitution or laws of the 

United States, or any substantive rights, privileges or 

immunities secured by the Constitution or laws of this 

State, or whose exercise or enjoyment of those 

substantive rights, privileges or immunities has been 

interfered with or attempted to be interfered with, by 

threats, intimidation or coercion by a person acting 

under color of law, may bring a civil action for 

damages and for injunctive or other appropriate relief.

[N.J.S.A. 10:6-2(c) (emphasis added).]

We previously construed this provision as requiring either (a) a 

deprivation of a substantive right; or (b) threats, intimidation, or coercion 

constituting an interference or attempted interference with the right. 

[P]lacement of a comma after "laws of this State" and 

before the word "or" divides the clause into two 

separate, independent phrases that do not act to 

modify nor qualify one another. Thus, properly read, 

the statute provides a person may bring a civil action 

under the Act in two circumstances: (1) when he's 

deprived of a right, or (2) when his rights are 

interfered with by threats, intimidation, coercion or 

force. Clearly, defendants' contrary interpretation 

renders the terms "deprive" and "interfere"

indistinguishable, yet they are clearly different in 

meaning. Indeed, it makes sense to require, as the 
A-3059-16T2 27

Legislature evidently did, that a plaintiff show 

"threats, intimidation or coercion" were employed if 

constitutional rights were merely interfered with or an 

attempt was made at interfering with them, and that no 

such showing is required where one has actually been 

deprived of the right. 

[Felicioni v. Admin. Office of the Courts, 404 N.J. 

Super. 382, 400 (App. Div. 2008).]

In Tumpson v. Farina, 218 N.J. 450 (2014), the Supreme Court 

confirmed that reading. In Tumpson, a municipal clerk unlawfully refused to 

file a referendum petition. In determining whether the plaintiffs were entitled 

to counsel fees under the CRA, the Court observed: 

Although N.J.S.A. 10:6–2(c) provides relief for either 

the deprivation of a statutory substantive right or the 

interference with such a right "by threats, intimidation 

or coercion," no one contends that the Clerk engaged 

in "threats, intimidation or coercion" in refusing to file 

the referendum petition. Therefore, plaintiffs cannot 

look to the interference portion of this statute for 

relief. Their claim under the Civil Rights Act must 

rise or fall on whether the Clerk deprived them of a 

substantive right.

[Id. at 473.]

In Tumpson, the Court found that the right at issue was "substantive" because 

it gave rise to a cause of action to enforce a right specified in the referendum 

statute, and the Legislature did not intend to withhold relief under the CRA 

merely because the plaintiffs could enforce their rights through an action in 

lieu of prerogative writs. Id. at 478-79. Instead, the Legislature would have 
A-3059-16T2 28

intended to empower voters to enforce the right of referendum, because it is 

fundamental to representative democracy. Id. at 480-81. 

The Court rejected the defendant's argument that the plaintiffs were not 

entitled to counsel fees because they obtained injunctive relief and hence were 

not "deprived" of their right to file the petition.

Certainly, before plaintiffs secured judicial relief, the 

Clerk's refusal to file their referendum petition took 

away, withheld, and kept plaintiffs from enjoying their 

right of referendum. That the Law Division later 

provided a judicial remedy by compelling the Clerk to 

abide by the Faulkner Act and process the referendum 

petition does not alter the nature of the Clerk's earlier 

act, which deprived plaintiffs of a statutory right.

[Id. at 481.]

Most recently, in Harz v. Borough of Spring Lake, 234 N.J. 317 (2018), 

the Court set forth a three-step test, derived from Blessing v. Freestone, 520 

U.S. 329, 340-41 (1997), to determine whether a right is "substantive" for 

purposes of the CRA. See also Gonzaga Univ. v. Doe, 536 U.S. 273 (2002).

In the three-step test, a court must determine: (1) 

whether, by enacting the statute, the Legislature 

intended to confer a right on an individual; (2) 

whether the right "is not so 'vague and amorphous' that 

its enforcement would strain judicial competence,"

and (3) whether the statute "unambiguously impose[s] 

a binding obligation on the [governmental entity]."

In addition to satisfying those three "factors,"

for purposes of our Civil Rights Act, plaintiffs must 
A-3059-16T2 29

also "show that the right is substantive, not 

procedural." . . . 

In essence, a substantive right is "[a] right that 

can be protected or enforced by law; a right of 

substance rather than form." Black's Law Dictionary

1437, 1438 (9th ed. 2009) (defining a procedural right, 

in contrast, as "[a] right that derives from legal or 

administrative procedure; a right that helps in the 

protection or enforcement of a substantive right").

[Harz, 234 N.J. at 331-32 (bracketed alterations in 

original) (emphasis added) (additional citations 

omitted).]

In Harz, the Court found that a property owner's statutory right to appeal 

from the decision of a zoning officer was substantive: 

Here, the nature of the substantive right at 

issue—a property right—is clearly identifiable. The 

right of an interested party to appeal the issuance of a 

zoning permit—to have her concerns 'heard'—is 

rooted in principles of property rights, specifically the 

right to not be deprived of an interest in one's property 

without process. 

[Id. at 333.]

Against that backdrop, we begin our analysis by considering the possible 

sources of the rights plaintiffs asserted here. Like the trial court, plaintiffs rely 

heavily on the public trust doctrine. On the one hand, it can be argued that 

since the doctrine is grounded in the common law rather than in statutory or 

constitutional provisions, a violation of the doctrine is not covered by the 

CRA. On the other hand, because the CRA is remedial legislation, and 
A-3059-16T2 30

because it uses the term "laws" rather "statutes," it could be argued that the 

Legislature intended the term "laws" to include fundamental rights enshrined 

in our common law and that the right to use the beaches is such a fundamental 

right. The Supreme Court has never extended the CRA that far, however, and 

we need not decide that novel issue here.11 Plaintiffs were not prevented from 

using the Borough's beach, which is the core substantive right protected by the 

public trust doctrine, and their right to pay reasonable beach fees is protected 

by a statute.

Thus, we look to N.J.S.A. 40:61-22.20(a), which delegates to 

municipalities the State's responsibilities under the public trust doctrine and is 

integral to its enforcement. 

The statute amounts to a delegation to a municipality 

having a dedicated beach (dry sand area) of the state's 

police power over that area and the tide-flowed land 

seaward of the mean high water mark; the proviso 

indicates an affirmation of the state's paramount 

interest and inherent obligation in insuring that such 

seaward land be equally available for the use of all 

citizens.

[Avon, 61 N.J. at 301-02.]

 

11

 Research reveals no reported opinions awarding CRA counsel fees for a 

violation of the public trust doctrine or the beach fee statute. In Secure 

Heritage, 361 N.J. Super. at 310-11, which predated enactment of the CRA, the 

plaintiff sought counsel fees for proving a violation of the public trust 

doctrine. We found no source of authority for a fee award. 
A-3059-16T2 31

We have also recognized that "a municipality's obligation to charge only 

reasonable, non-discriminatory beach fees is a well-established component of 

the public trust doctrine[.]" Borough of Avalon v. N.J. Dep't of Envtl. Prot., 

403 N.J. Super. 590, 607-08 (App. Div. 2008). The beach fee statute enforces 

that component. 

We conclude that a violation of N.J.S.A. 40:61-22.20(a)'s prohibition on 

unreasonable beach fees would entitle an injured plaintiff to an award of 

counsel fees under the CRA, but a violation of financial accounting rules 

would not. The statutory mandate that municipalities charge "reasonable"

beach fees states a substantive individual right of members of the public. 12

N.J.S.A. 40:61-22.20(a). It is a "clearly identifiable" right, rooted in the 

historic and fundamental principle of public access to the beach. Harz, 234 

N.J. at 333. See Borough of Avalon, 403 N.J. Super. at 607-08. On the other 

hand, N.J.S.A. 40:61-22.20(a) contains no specific provision, unambiguous or 

otherwise, that guarantees the public a right to any particular form of 

municipal financial accounting or fund allocation, including the creation of a 

 

12

 In so holding, we do not mean to imply that every rate-setting statute 

creates a substantive individual right that can be enforced under the CRA. The 

beach fee statute is unique; in prohibiting unreasonable beach fees, it 

safeguards a fundamental public right of beach access. See Avon, 61 N.J. at 

302. We also do not decide here whether physical exclusion from the beach 

would entitle an excluded party to CRA counsel fees under N.J.S.A. 40:61-

22.20; that issue is not before us. 
A-3059-16T2 32

separate beach fund. The only unambiguous fiscal-related obligation the 

statute creates is the requirement that a municipality charge beachgoers 

"reasonable" beach fees.13 See Harz, 234 N.J. at 331-32. 

As previously noted, the Borough did not physically exclude plaintiffs 

from the beach, or attempt to do so, and plaintiffs did not prove that the 

current beach-badge fees were unreasonable. The fact that, at some future 

point, the Borough might charge unreasonably high beach-badge fees as a 

result of having misallocated monies due to the beach fund, does not constitute 

the current violation of a substantive right. Nor does that conduct constitute an 

attempt to interfere "by threats, intimidation or coercion" with the exercise of 

either of those substantive rights. N.J.S.A. 10:6-2(c). See Tumpson, 218 N.J. 

at 473. The only unreasonable fee that plaintiffs proved the Borough actually 

imposed on them was the increased fee for beach parking which, in the 

particular circumstances of this case, was tantamount to a beach fee. 

Accordingly, with the exception of that limited and discrete claim, plaintiffs 

were not entitled to counsel fees under the CRA, N.J.S.A. 10:6-2(f). 

 

13

 Likewise, for CRA purposes, we could not infer such an unambiguous 

"substantive right" of proper municipal accounting from the common law. It 

would be anomalous to limit substantive statutory rights to those 

unambiguously guaranteed by a statute, but to apply a looser standard to rights 

created by the common law. 
A-3059-16T2 33

We therefore reverse the order awarding counsel fees except as to the 

parking fee claim. We remand the case to the trial court to recalculate the fee 

award based on plaintiffs' limited success on their CRA-related claims. See

Szczepanski v. Newcomb Med. Ctr., Inc., 141 N.J. 346, 354-56 (1995). For 

the court's guidance on remand, we reject defendant's arguments that no 

counsel fees were due because there was no retainer agreement and that any 

fee award should be paid from the beach fund rather than the general fund. As 

we held in DeSanctis, those arguments are completely without merit, and they 

do not warrant further discussion. DeSanctis, 455 N.J. Super. at 335-36; R.

2:11-3(e)(1)(E).14 

Affirmed in part, reversed in part, remanded in part. We do not retain 

jurisdiction. 

 

14

 We have not specifically addressed defendants' contentions based on the 

separation of powers doctrine, because those arguments are without sufficient 

merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).