Tri-State Metro Naturists v. Lower Tp

In Tri-State Metro Naturists v. Lower Tp., 219 N.J. Super. 103, 107-108, 529 A.2d 1047 (Law Div.1987), an organization of nudists sued to invalidate the ordinance which was adopted in 1986 by Lower Township to ban nude sunbathing. The suit was prompted by the fact that several of the plaintiff's members had been arrested under the ordinance on Higbee Beach. Judge Gibson rejected the plaintiff's various constitutional challenges, including those based on the freedom of expression, right to privacy, freedom of association, vagueness, and protected liberty interest. Tri-State Metro Naturists, supra, 219 N.J. Super. at 108-15, 529 A.2d 1047. While conceding that "certain portions of this ordinance are arguably vague, particularly with respect to dress," the judge reaffirmed the Belmar court's view that "there is nothing vague about the prohibition against public nudity." Ibid. Judge Gibson described the beach: The site of the nude sunbathing is a portion of a state-owned wildlife preserve known as Higbee Beach. Higbee Beach consists of approximately 200 acres of generally undeveloped land bordering on Delaware Bay along the southerly most tip of Cape May County. That property was purchased by the State of New Jersey in 1978, following which a Management Plan was adopted by the Department of Environmental Protection and implemented through the Division of Fish, Game and Wildlife. The Management Plan reflects the "growing number of outdoor enthusiasts" that visit the area and the "increasing popularity with such tourists as a free beach and place of quiet solitude." Pursuant to N.J.S.A. 13:8A-25 regulations were promulgated covering a wide variety of subjects, the primary purpose of which was to preserve wildlife but which included the management of human conduct as well, including recreational activities. N.J.A.C. 7:25-2.20. The recreational activity covered by the regulations is extensive and includes birdwatching, picnicking and bathing. No prohibition exists, however, with respect to nude bathing or sunbathing. See N.J.A.C. 7:25-2.9. The area can clearly be labeled as secluded. There is only one road that leads into Higbee Beach and the area is not easily accessible through neighboring property. It is not a place that one would stumble upon by accident. On the other hand, it is clearly open to the public and is used by a large number of people. The fact that it is remote and secluded, therefore, does not mean that it is private or out of public view.