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(NOTE: The status of this decision is Unpublished.) Original Wordprocessor Version (NOTE: The status of this decision is Unpublished.) NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2795-08T12795-08T1 EWING CITIZENS FOR CIVIL RIGHTS, INC., and JAMES J. SANOCKI, Plaintiffs-Respondents, v. TOWNSHIP OF EWING, MAYOR OF EWING, and EWING TOWNSHIP COUNCIL, Defendants-Appellants. ____________________________________

Argued November 12, 2009 - Decided: Before Judges Payne and Waugh. On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2037-07. Gregory J. Sullivan argued the cause for appellants (Hartsough Kenny Chase & Sullivan, attorneys; Mr. Sullivan, of counsel and on the briefs). Gary E. Fox argued the cause for respondents (Fox & Melofchik, L.L.C., attorneys; Mr. Fox, on the brief). PER CURIAM Defendants Township of Ewing, Mayor of Ewing, and Ewing Township Council (collectively Township) appeal the invalidation of three municipal ordinances, each of which was intended to address perceived problems created by the density of rental housing associated with students attending the College of New Jersey, which is located in Ewing Township (Ewing) in Mercer County. The ordinances (1) increased minimum square-footage requirements for rental units; (2) required the licensing and inspection of certain rental properties; and (3) required off-street parking
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for all licensed drivers residing in rental properties located in certain zoning districts. Plaintiffs Ewing Citizens for Civil Rights, Inc., a not-for-profit corporation composed of rental property owners and residents, among others, and James J. Sanocki, a Ewing resident and the owner of seven rental properties in Ewing, challenged the ordinances in an action in lieu of prerogative writ. The Law Division judge concluded that the ordinances were "unreasonable, arbitrary, and capricious" and invalidated them. We affirm in part and reverse in part. I. We discern the following facts from the record. Prior to 2004, the Township's primary means of regulating its existing residential properties with respect to issues such as overcrowding and property maintenance was enforcement of the minimum safety standards in its Property Maintenance Code (Code), which the Township adopted by reference to the 1998 International Property Maintenance Code (IPMC). The IPMC does not differentiate between owner-occupied and rental residential properties. The Code was enforced, in part, through the Township's certification of occupancy ordinance, which requires the issuance of a certificate of occupancy whenever there is a change in the occupancy of a residential dwelling unit, whether the unit is owned or rented. A certificate of occupancy would be issued only after one or more code officials had inspected the housing unit for compliance with zoning laws, the IPMC, and any other applicable safety codes. During several years leading up to the adoption of the ordinances at issue, Township officials received complaints from Ewing residents regarding "college rentals." The complaints generally related to obnoxious behavior, overcrowding, illegal parking, and property maintenance deficiencies. According to one of the Township's witnesses, the problems arose primarily from college rentals in smaller properties, rather than larger properties, those with three or more units, subject to the New Jersey Hotel and Multiple Dwellings Act, N.J.S.A. 10:5-1 to -49; and (3) the Municipal Land Use Law, N.J.S.A. 40:55D-1 to -163. The Township filed an answer, and discovery ensued. The Township filed a motion for summary judgment, but the trial judge concluded that an evidentiary hearing was required to resolve the issues raised in the complaint. The hearing was held on July 11, 2008. On January 8, 2009, the trial judge issued a written decision and entered an order invalidating all three of the ordinances. This appeal followed.
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II. In this appeal, we are asked to review a decision reached by the trial judge following a bench trial. "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). We do not disturb the factual findings and legal conclusions of the trial court unless we are convinced that "'they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Id. at 412 (quoting Rova Farms, supra, 65 N.J. at 484); see also Beck v. Beck, 86 N.J. 480, 496 (1981). It appears, however, that the Township challenges the trial judge's legal conclusions, rather than his factual findings. "Whether the facts found by the trial court are sufficient to satisfy the applicable legal standard is a question of law subject to plenary review on appeal." State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004). A. The general standard of review with respect to a municipal ordinance is well-settled. Like other legislative enactments, they are presumed valid and will be upheld where "any state of facts may reasonably be conceived to justify [them]." Quick Chek Food Stores v. Twp. of Springfield, 83 N.J. 438, 447 (1980). In this way, "the underlying policy and wisdom" of the ordinance is left to the governing body, not to the court. Ibid. Because municipal actions are presumed to be proper, a challenger bears a "heavy burden" of showing that they are arbitrary, capricious or unreasonable. Bryant v. City of Atlantic City, 309 N.J. Super. 596, 610 (App. Div. 1998). In undertaking its analysis, the court must review "the relationship between the means and ends of the ordinance." Pheasant Bridge Corp. v. Twp. of Warren, 169 N.J. 282, 290 (2001) (citation omitted), cert. denied, 535 U.S. 1077, 122 S. Ct. 1959, 152 L. Ed.2d 1020 (2002). This review must be undertaken with the understanding that "the means selected must have a real and substantial relation to the object sought to be attained," and the regulation "must be reasonably calculated to meet the evil and not exceed the public need or substantially affect uses which do not partake of the offensive character which cause the problem sought to be ameliorated." Kirsch Holding Co. v. Borough of Manasquan, 59 N.J. 241, 251 (1971). Put another way, the fundamental question in all zoning cases "is whether the requirements of the ordinance are reasonable under the circumstances." Vickers v. Twp. Comm. of Gloucester Twp., 37 N.J. 232, 245 (1962), appeal dismissed and cert. denied, 371 U.S. 233, 83 S. Ct. 326, 9 L. Ed.2d 495

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(1963), modified on other grounds by S. Burlington County N.A.A.C.P. v. Twp. of Mount Laurel, 92 N.J. 158, 276-77 (1983). B. The trial judge determined, and the Township does not dispute, that the ordinances at issue were enacted specifically in response to complaints about misconduct involving college student rentals in Ewing. As the Township's former zoning officer testified, there were complaints about "[l]oud parties, overcrowding at parties of structured single family homes, urination outside in the front and rear yards," as well as parking violations. After a meeting among a small group of elected and appointed Township officials, which took no public testimony and relied on no outside experts, the ordinances were drafted and subsequently enacted. The standard of review applicable in cases such as this one was discussed at length by the Supreme Court in Borough of Glassboro v. Vallorosi, 117 N.J. 421, 426-27 (1990), as follows: The legal principles determinative of this appeal are clear and well-settled. The courts of this state have consistently invalidated zoning ordinances intended "to cure or prevent * * * anti-social conduct in dwelling situations." Kirsch Holding Co. v. Borough of Manasquan, 59 N.J. 241, 253-54 (1971). We have insisted that the municipal power to adopt zoning regulations be reasonably exercised; they may be neither unreasonable, arbitrary nor capricious. The means chosen must have a real and substantial relation to the end sought to be achieved. Moreover, the regulation must be reasonably designed to resolve the problem without imposing unnecessary and excessive restrictions on the use of private property. [Berger v. State, 71 N.J. 206, 223-24 (1976) (citations omitted).] In Kirsch Holding Co. v. Borough of Manasquan, supra, 59 N.J. 241, we invalidated ordinances in two shore communities that restrictively defined "family" and prohibited seasonal rentals by unrelated persons. We held that the challenged ordinances "preclude so many harmless dwelling uses * * * that they must be held to be so sweepingly excessive, and therefore legally unreasonable, that they must fall in their entirety." Id. at 251-52. Similarly, in Gabe Collins Realty, Inc. v. City of Margate City, 112 N.J. Super. 341 (1970), the Appellate Division invalidated a shore community's restrictive ordinance limiting "family" to persons related by blood, marriage, or adoption, or not more than two unrelated persons. The objective of the ordinance was to eliminate summer rentals by unrelated young men and women. The court concluded that the ordinance was "unreasonably restrictive of the ordinary and natural utility of such property as dwellings for people, and of the right of unrelated people in reasonable number to have recourse to common housekeeping facilities * * *." Id. at 349. See also United Prop. Owners Ass'n of Belmar v. Borough of Belmar, 343 N.J. Super. 1, 37 (App. Div.), certif. denied, 170 N.J. 390 (2001). In Kirsch, supra, 59 N.J. at 245, the ordinances at issue sought to prevent "the uninhibited social conduct of

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many such group rental occupants within and without the buildings," including "excessive noise at all hours, wild parties, intoxication, acts of immorality, lewd and lascivious conduct and traffic and parking congestion [that] often accompany [] group rentals." Although the Court observed that "[o]rdinarily obnoxious personal behavior can best be dealt with officially by vigorous and persistent enforcement of general police power ordinances and criminal statutes" and that "[z]oning ordinances are not intended and cannot be expected to cure or prevent most anti-social conduct in dwelling situations," it did not rule out a zoning approach entirely: When intensity of use, i.e., overcrowding of dwelling units and facilities, is a factor in that conduct (as it well may be here on the theory that, pragmatically speaking, fewer people make less noise and disturbance), consideration might quite properly be given to zoning or housing code provisions, which would have to be of general application, limiting the number of occupants in reasonable relation to available sleeping and bathroom facilities or requiring a minimum amount of habitable floor area per occupant. The latter type of regulation was upheld in Nolden v. East Cleveland City Comm'n, 12 Ohio Misc. 205, 232 N.E.2d 421 (C.P. Cuyahoga County 1966), on the basis that fire safety, health, crime prevention and maintenance of property, neighborhood and community -- all matters of public welfare -- are thereby served. [Id. at 253-54 (emphasis added)]. Consequently, a municipality's primary response to anti-social behavior should be through exercise of its police power, through non-zoning enactments or enforcement actions, aimed at the conduct itself, rather than through efforts to exclude or limit the presence of those who fall into a category believed, even if correctly, to be the source of the problem. Nevertheless, a broader approach, such as zoning or building code changes, can be acceptable, but only if (1) they are of general application and (2) the nature of the changes bear a reasonable relationship to the facilities at issue. III. With these legal principles in mind, we now turn to the specific ordinances at issue. A. Ordinance 04-15 amended Chapter 66 of the Code to increase (1) the required non-sleeping floor space to 100 square feet per occupant; and (2) the required sleeping room floor space to 100 square feet for the first occupant and 75 square feet for each additional occupant. For the purposes of the ordinance, an "occupant" is someone eighteen years of age or older. The ordinance applied only to rental units. The ordinance acted as an amendment to the IPMC provisions of the Code that had previously governed
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those issues. Under Section 404.5 of the IPMC, the general requirement for non-sleeping area for living rooms and dining rooms, either separately or combined, was 200 square feet for units with three-to-five occupants and 250 square feet for units with more than five occupants. There was no such minimum requirement for units with fewer than three occupants. With respect to sleeping areas, Section 404.4.1 of the IPMC required 70 square feet for one person and "every bedroom occupied by more than one person shall contain at least 50 square feet of floor area for each occupant thereof." Those requirements apply to all residential housing. The net effect of Ordinance 04-15 was a significant increase in the minimum space requirements for rental residential units, beyond those required by the IPMC, which the Township had chosen to "constitute [its] minimum requirements and standards for premises . . . for light, ventilation, space, heating, sanitation, protection from the elements, life safety, safety from fire and other hazards." IPMC Section 101.2. For example, under the ordinance, a one bedroom unit to house three adults would require 300 square feet of non-sleeping living room and dining room space and 250 square feet for the sleeping space, for a total of 550 square feet, if it were a rental unit. But only 200 square feet of non-sleeping space and 150 square feet for the sleeping space, for a total of 350 square feet, would be required if it were a non-rental unit. Plaintiffs offered an architectural expert at trial who testified that he could discern no relationship between the space requirements set forth in Ordinance 04-15 and any building or safety code known to him. The Township has offered no expert testimony with respect to the derivation of the requirements found in the ordinance. One councilman testified that the council relied on the expertise of the Township's code officials. The code and zoning officials who testified did not relate their recommendations to any recognized housing standards, such as the IPMC or the New Jersey State Housing Code, neither of which support the changed requirements. That testimony amounts to nothing more than a net opinion. See State v. Townsend, 186 N.J. 473, 494 (2006) ("Simply put, the net opinion rule 'requires an expert to give the why and wherefore of his or her opinion, rather than a mere conclusion.'" (citation omitted)). In Kirsch, supra, 59 N.J. at 253-54, the Supreme Court suggested, with respect to concerns about overcrowding, that "consideration might quite properly be given to zoning or housing code provisions" under certain limited circumstances. While it appears that the Township has sought to take that approach, it has not done so with the required "general application" or "reasonable relation" to "habitable floor area per occupant." Ibid. It has simply, but significantly, increased the space requirement solely for rental units, without any articulated basis for the new requirements, other than the unsupported opinions of the code and zoning officials. The practical effect of the increases was clearly to decrease the number of rental space available.
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In United Property Owners, supra, 343 N.J. Super. at 14-18, we upheld an ordinance calling for enforcement of minimum space requirements with respect to summer rental units. However, we did so precisely because the minimum requirements, which were applicable to all residences, were based on provisions of BOCA Code, which was a predecessor of IPMC and contained the same requirements. Because the Township has not followed Kirsch's mandate that space requirements have "general application" and a "reasonable relation" to "habitable floor area per occupant," we conclude that the trial judge correctly found that the Township's action in adopting Ordinance 04-15 was "unreasonable, arbitrary, and capricious." Consequently, we affirm that portion of the order on appeal. B. Ordinance 05-07, which also applies only to rental premises, requires that there be "one off-street parking space on said property for every licensed driver residing in such rental premises." In contrast, a non-rental single family residence is required to have two off-street parking spaces, without regard to the number of licensed residents. Despite the fact that the ordinance was a valid exercise of zoning authority in the abstract, the trial judge invalidated it, concluding that the Township should have addressed the parking issues through enactment of parking regulations rather than zoning requirements. He relied on the Supreme Court's admonition in Glassboro, supra, 117 N.J. at 433, that "[i]t also bears repetition that noise and other socially disruptive behavior are best regulated outside the framework of municipal zoning." We agree. The focus of the ordinance is too broad in that it requires parking spaces based upon the number of licensed drivers in a residential unit, rather than the number of vehicles owned or used by those drivers. Thus, a rental unit with only two on-site parking spaces could not be rented to three adults, whether they were three college students or two parents with a child who is licensed to drive, even if those residents would only be using one or two vehicles, or even if the owner of a third vehicle had a legal off-site parking space at another location. This type of zoning, intended to address antisocial conduct, is not "reasonably designed to resolve the problem without imposing unnecessary and excessive restrictions on the use of private property." Glassboro, supra, 117 N.J. at 426 (quoting Berger v. State, 71 N.J. 206, 223-24 (1976) (citations omitted)). As the trial judge aptly observed, the Township could address the same illegal parking issues by regulating the location and times of onstreet parking, and by enforcing its regulations through its normal police powers. In other words, it could address

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the conduct directly, rather than seeking to narrow the availability of rental units through measures that do not apply generally and are not reasonable. For those reasons, we affirm that portion of the order on appeal that invalidated Ordinance 05-07. C. Finally, the trial judge invalidated Ordinance 04-17, which established a registration and licensing program for residential rental units. While all residential rental locations were to be registered, only those with one or two units were required to be licensed and inspected annually. The ordinance set forth the procedures for licensure, inspection, and enforcement. The trial judge appeared to recognize the Township's authority to inspect and license rental units: These statutes [] demonstrate that the New Jersey legislature has authorized municipalities to inspect, license, and regulate rental properties, which the Township has validly done with enactment of these Ordinances. See also Dome Realty, Inc. v. City of Paterson, 83 N.J. 212, 228-30 (1980). In Dome, the New Jersey Supreme Court found that "[s]uch a broad 'reservoir of police power' is alone sufficient to permit municipal regulation of minimum standards for rental housing--an area that vitally affects 'health, safety, and welfare' of residential tenants." Id. at 230. The trial judge did not provide specific analysis with respect to Ordinance 04-17, nor did he specifically explain his reasons for finding it invalid. This is not a zoning ordinance, but rather a mechanism for ensuring enforcement of zoning and other code provisions. It does not, therefore, necessarily run afoul of the strictures set forth in Glassboro and Kirsch. As noted above, in the context of similar problems with summer rentals in Belmar, we have held that, when it has been demonstrated "that overcrowding and its accompanying problems occur predominantly" in a particular housing context, "[d]irecting enforcement of [an] Ordinance's occupancy restrictions toward [the problem context] is rationally related to the legitimate public interest of abating these problems sufficient to withstand a federal [and state] constitutional challenge." United Prop. Owners, supra, 343 N.J. Super. at 21. We cannot review a decision when we do not have the benefit of the trial judge's reasons for making it. Rosenberg v. Bunce, 214 N.J. Super. 300, 303 (App. Div. 1986). In addition, it appears that the adoption of a licensing ordinance to address a particular problem such as the one involved in this case is not necessarily inappropriate, given our holding in United Property Owners. Finally, we do not believe the issue has been adequately briefed by the parties, particularly as a separate issue independent of the content of the other two ordinances. Consequently, we vacate that portion of the order on appeal that invalidated Ordinance 04-17 and remand to the Law Division for further
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proceedings consistent with this opinion. IV. In summary, we affirm the invalidation of Ordinance 04-15 and Ordinance 05-07. We vacate that portion of the order that invalidated Ordinance 04-17 and remand to the trial court for further proceedings consistent with this opinion. We do not retain jurisdiction.

Affirmed in part; reversed in part and remanded. Plaintiffs initially filed suit in the United States District Court for the District of New Jersey. After their federal claims were dismissed on the merits and their state law claims were dismissed without prejudice, plaintiffs filed the present action in the Superior Court. Two of these ordinances subsequently underwent modest amendments not relevant to this appeal. We have utilized the version of the IPMC contained in the record. We understand that there may be a more recent version with amended requirements. The IPMC has a separate requirement for kitchen space, an issue not covered by the ordinance. The New Jersey State Housing Code, has a similar requirement at N.J.A.C. 5:28-1.11(b). The BOCA (Building Officials & Code Administrators International, Inc.) National Property Maintenance Code (4th ed. 1993). The ordinance requires licensure of "[e]ach rental unit containing two or less units." We understand the language to require licensure of rental locations or facilities with only one or two residential units. The language could, however, be more clearly stated. wvWare/wvWare version 1.0.3 --> This archive is a service of Rutgers School of Law - Camden. This archive is a service of Rutgers School of Law - Camden.

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