A town recently constructed a recreational center that offers an indoor pool, exercise equipment, and fitness classes. Several town residents have asked the town council to limit use of the facility to town residents and their invited guests. The residents are concerned that the center will become overcrowded if nonresidents can join the facility. Because the town funded the construction of the recreational center with local taxes, the council has agreed to restrict membership to town residents to ensure that they may fully enjoy the space. May the town legally restrict the new facility in this way?

Like many legal questions, the best answer to the above hypothetical may be, it depends. G.S. 160A-353 grants cities and counties authority to establish supervised recreational programs and set apart land for recreation centers and similar recreational facilities. However, neither the statute nor our courts indicate whether a local government may exclude nonresidents from enjoying locally-funded recreational facilities. Nonetheless, local officials do sometimes differentiate between residents and nonresidents in providing access to some right, privilege, or benefit.

For example, local governments often distinguish between residents and nonresidents by charging nonresidents higher fees than residents for the privilege of engaging in local recreational activities. The term “recreation” has been defined to include any activity that promotes entertainment, pleasure, relaxation, instruction, or cultural development, including using a recreation facility, or participating in a class or activity. G.S. § 160A-352. As such, nonresidents could theoretically be charged more to reserve a room in a public library, swim at an aquatic facility, or participate in a sport, class, or lesson offered at a public recreation center. The Supreme Court has held that it is “not in itself invidious or unconstitutional” to impose a reasonable differential in cost between residents and nonresidents to engage in state-funded recreational activities. Baldwin v. Fish & Game Comm’n of Montana, 436 U.S. 371, 390 (1978).

Most challenges to classifications that distinguish between residents and nonresidents are brought on equal protection grounds. For a residency classification to be upheld, a local government must satisfy the rational basis test by demonstrating a reasonable relationship between the residency classification and a legitimate governmental interest. City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432 (1985). Additionally, residency classifications may not violate other constitutional mandates, such as the First Amendment or the privileges and immunities clause. Further, an ordinance will be void if it arbitrarily or unreasonably discriminates against nonresidents or has a disparate impact on a protected class, such as race or nationality. 5 McQuillin Mun. Corp. § 19:25 (3d ed.).

Residency Classifications and Recreational Activities

There is case law in other jurisdictions (albeit limited) that suggests that a local government may sometimes distinguish between residents and nonresidents when it comes to using local recreational facilities. In these cases, the courts focused on the limited capacity of the respective recreational facility as the primary basis to uphold the residency classification. However, it was also important that the recreational facilities at issue were developed and maintained through local taxes financed by residents and the facilities were never dedicated to or intended for general public use.

For example, in Zaroogian v. Town of Narragansett, 701 F. Supp. 302 (D.R.I. 1988), a Rhode Island state statute enabled a town to operate a general beach and bathhouse business for the benefit of the public. Accordingly, the town granted the public full access to the beach, rest rooms, and concessions. Pursuant to a “resident priority policy,” the town reserved the use of the shower rooms and the rental of beach cabanas for town residents. When the resident priority policy was challenged on equal protection grounds, the district court upheld the policy, concluding it was a “reasonable rule and regulation” because the facilities at issue were maintained through local taxes and were never intended for use by the general public. Further, the beach cabanas and shower rooms were a “scarce resource” for which the “very nature of the use require[ed] exclusion.”

Similarly, in Van Ness v. Borough of Deal, 367 A.2d 1191 (App. Div. 1976) , a New Jersey court held that there was no equal protection violation when a city adopted a residency classification to exclude nonresidents from joining a municipal-owned beach club that consisted of a 350-car parking lot, a large pool, 484 changing facilities, a snack bar, and recreational facilities including shuffleboard, ping pong, and basketball. In reaching its conclusion, the court noted that the construction of the facility was financed by a bond issue and subsequent improvements were financed by municipal revenues. Further, there was evidence that facility was fully utilized by residents, and there had been a tendency toward over-utilization in recent years. Thus, because the club was a “limited capacity facility” that had never been dedicated for public use, the town had a legitimate interest in reserving membership to town residents who “contributed to its creation and continue[ed] to contribute to its maintenance.”

Residency Classifications and Public Parks

Public parks are generally not the type of recreational spaces that may be reserved for use by local residents. Instead, land held by a local government for park purposes is “held for the benefit of the people of the state at large and not only for the benefit of local inhabitants.” 64 C.J.S. Municipal Corporations § 1996. This is because public parks are used for purposes of assembly and as locations for free expression, making them traditional public forums for First Amendment purposes. And a residency-based classification that excludes nonresidents from visiting a public park will likely raise First Amendment concerns. Kunz v. People of State of New York, 340 U.S. 290, 293 (1951). When a residency classification is challenged on First Amendment grounds, the regulation must pass strict scrutiny. Strict scrutiny requires a local government to demonstrate that the regulation serves a compelling governmental interest and that it is narrowly drawn to achieve that interest. This is a difficult burden to satisfy.

This principle is illustrated in Leydon v. Town of Greenwich, 257 Conn. 318 (2001), where the Connecticut Supreme Court struck down a town ordinance that imposed a residency requirement to visit Greenwich Point, a 147-acre facility with a small beachfront area, picnic shelters, a marina, ponds, walkways, trails, and a public library book drop. The town argued the residency classification served a compelling government interest because, foremost, the town funded and operated the facility for the benefit of local residents, and, secondly, the limited capacity at the small beachfront area made it difficult for residents to enjoy the space. The court was not persuaded. It overturned the ordinance on the basis that the town failed to show a compelling governmental interest in excluding nonresidents from this park, a traditional public forum. It also held that the ordinance was substantially overbroad because it barred a large class of people, namely all nonresidents, from visiting the public forum and engaging in “a multitude of expressive and associational activities[.]” Id. at 347.

Residency Classifications and Access to Navigable Waters

The public trust doctrine protects the public’s right to the unobstructed access to the state’s natural waters, including oceans, river, and lakes, for purposes of commerce, navigation, or to enjoy recreational activities, such as, boating, swimming, and other shore activities. Fish House, Inc. v. Clarke, 204 N.C. App. 130, 134 (2010) (the public trust doctrine protects the public’s access to all navigable watercourses, whether tidal or inland, for “all purposes of pleasure or profit[.]”). Implicit in the public trust doctrine is a duty not to discriminate between residents and nonresidents when it comes to the enjoyment of the state’s waters. As such, nonresidents may not be charged higher fees than residents to access or enjoy the state’s navigable waterways. And local governments may not prefer its residents when providing access to public waterways.

For example, State v. Town of Linn, 556 N.W.2d 394 (Ct. App. 1996), a court struck down a village ordinance that reserved most parking spaces at a public boat launch for village residents on the basis that the public trust doctrine mandated that access to navigable waterways must be equally available to all users—residents and nonresidents alike needed to park at the boat launch to be able to enjoy the water. Extending this logic, it would similarly violate the public trust doctrine if a local government were to preclude nonresidents from using a public boat ramp to launch watercraft into navigable waters.

Key Takeaways

While these cases do not necessarily predict how North Carolina courts would rule in a case involving a residency-based classification, some standards can be derived from these decisions. Foremost, courts will probably consider the nature of the use of a recreational facility, as well as its overall capacity, in determining whether a classification that excludes nonresidents from enjoying a recreational facility is reasonable. The funding source for the construction and ongoing maintenance of a facility is also an important factor. Finally, the extent to which the facility was dedicated for general public use is also important, as would be any conduct to by the local government to suggests an intent to hold the facility in trust for the benefit of the public. See 57 A.L.R.3d 998. If a recreational facility has limited capacity and local residents contribute significantly to the costs incurred in the construction and/or maintenance of the recreation space, there is a greater chance that a residency classification will withstand an equal protection challenge. However these factors probably would not be sufficient to survive the strict scrutiny that courts apply to First Amendment challenges, but those challenges usually arise with public parks or other public forums not recreation centers or other limited-use facilities.