SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2938-99T5
UNITED PROPERTY OWNERS
ASSOCIATION OF BELMAR,
NICHOLAS ZAMPETTI, LAURA
GIFFORD and JOHN ROLAND,
Plaintiffs-Appellants,
v.
BOROUGH OF BELMAR, KENNETH
PRINGLE, Mayor of the Borough
of Belmar, JACK MANUTTI,
PATRICIA PROVENZANO, ANDREW
GALLAGHER and DOUG McGILL,
Council Members of the Borough
of Belmar,
Defendants-Respondents.
A-2941-99T5
UNITED PROPERTY OWNERS
ASSOCIATION OF BELMAR,
NICHOLAS ZAMPETTI, LAURA
GIFFORD and JOHN ROLAND,
Plaintiffs-Respondents,
v.
BOROUGH OF BELMAR, KENNETH
PRINGLE, Mayor of the Borough
of Belmar, JACK MANUTTI,
PATRICIA PROVENZANO, ANDREW
GALLAGHER and DOUG McGILL,
Council Members of the Borough
of Belmar,
Defendants-Appellants.
A-40-00T5
NICHOLAS M. ZAMPETTI, JR.
and MARIANN ZAMPETTI,
Plaintiffs-Appellants,
v.
BOROUGH OF BELMAR,
Defendant-Respondent.
Argued May 23, 2001 - Decided July 16, 2001
Before Judges Carchman, Lintner and Parrillo.
On appeal from Superior Court of New Jersey, Law
Division, Monmouth County, L-5348-98 and L-4102-98-03.
Randy T. Pearce argued the cause for appellants in A-
2938-99T5 and respondents in A-2941-99T5 (Pearce
Fleisig, attorneys; Mr. Pearce, of counsel and on the
brief; Jennifer A. McAdam, Catherine A. Muldoon and
Jennifer Brigliadoro, on the brief).
Andrew T. Fede argued the cause for appellants in A-40-
00T5 (Contant, Atkins, Rogers, Fede, Keane & Hille,
attorneys; Mr. Fede, of counsel and on the brief).
Karl P. Kemm argued the cause for respondents in A-
2938-99T5, appellants in A-2941-99T5 and respondent in
A-40-00T5 (Philibosian, Russell, Killmurray &
Kinneally, attorneys; Mr. Kemm, of counsel and on the
brief).
The opinion of the court was delivered by
CARCHMAN, J.A.D.
These three appeals require us to determine the validity of
a comprehensive local ordinance governing summer rentals at a
shore community. Plaintiffs United Property Owners Association
of Belmar, an association of approximately eighty property owners
in Belmar, and three of its constituent members Nicholas
Zampetti, Laura Gifford and John Roland (collectively
plaintiffs), brought an action against the Borough of Belmar,
Kenneth Pringle, Mayor of Belmar, and Jack Manutti, Patricia
Provenzano, Andrew Gallagher and Doug McGill, all members of the
Borough Council (collectively "defendants" or "Belmar") seeking
to invalidate the Belmar Ordinance 1999-16 (the Ordinance).
After an extended trial, the judge voided certain sections of the
Ordinance and upheld others. Plaintiffs appeal, and defendants
cross-appeal.
Plaintiffs contend on appeal that the judge erred in failing
to invalidate the Ordinance provisions that: (1) limit occupancy
for summer rentals only; (2) impose more restrictive fire
regulations than required; (3) impose liability for occupancy
violations on all tenants; (4) increase licensing fees; (5)
prohibit exceeding the occupancy rate at night; and (6) restrict
noise. Plaintiffs also claim selective enforcement; assert that
the Ordinance constituted a taking or inverse condemnation;
object to the judge's failure to invalidate the entire Ordinance
instead of selected provisions; and contend that their attorneys'
fee, awarded under the Federal Fair Housing Act, Title VIII of
the Civil Rights Act of 1968, as amended by the Fair Housing
Amendments Act of 1988,
42 U.S.C.A.
§§3601-3631 (the Act) was
inadequate.
Defendants on their cross-appeal contend that the judge
erred in invalidating those sections of the Ordinance that: (1)
require that when a unit is rented to a family with a school-aged
child over the winter, the summer rental cannot begin until the
end of the spring term of the school year; (2) compel the
submission of information regarding tenants on applications for
certification; (3) prohibit temporary certifications; (4)
proscribe the use of flammable materials as partitions; and (5)
prohibit commercial signs and strings of lights.
The trial judge, in a well-reasoned and thoughtful written
opinion, upheld the validity of the Ordinance, including a
prohibition on the presence of the number of occupants during
certain hours, but determined that certain provisions were
invalid. We conclude that the trial judge correctly determined
the Ordinance was constitutional, was not selectively enforced,
properly imposed liability on all tenants for occupancy
violations, did not constitute a taking, did not impose punitive
fees, and did violate the Act. We further conclude that the
judge's award of attorney's fees pursuant to the Act was not
inadequate.
We determine, however, that the judge erred in declaring
certain provisions of the Ordinance invalid, including the
portions of the Ordinance that prohibit: (1) temporary
certificates of inspection for summer rentals; (2) the use of
flammable materials as partitions; and (3) commercial signs and
strings of lights on summer rentals.
A companion appeal (A-40-00T5) filed on behalf of plaintiffs
Nicholas M. Zampetti, Jr. and Mariann Zampetti (Zampettis)
against defendant Borough of Belmar challenges the imposition of
a bond on landlords for multiple convictions of tenants for
disorderly conduct, as well as the factual determination as to
the necessity of a bond (the Zampetti appeal). Since we address
the issue of a bond in the context of plaintiffs' omnibus
challenge to the validity of the Ordinance, we consolidate the
appeals for purposes of this opinion and determine the Zampetti
appeal here as well. We conclude that the bond requirement is
valid and affirm the judgment upholding the validity of that
provision.
The findings conclude that "[s]easonal rental accommodations in Belmar are also frequently detrimental to the health, safety, welfare and quality of life of other nearby residents and visitors." Problems include "excessive noise, unruly behavior, obscene language, fighting, littering, parking of vehicles on lawns, public urination, poor maintenance of the property and grounds, and violation of trash collection ordinances." Belmar Ordinance 1999-16, § 26-7.1E.
After extolling the progress of Belmar in recent years, Mayor Pringle announced the proposed Ordinance in September 1998, commenting that "[t]he only dark cloud on Belmar's horizon is our 560 summer rentals" which have a negative "impact on our property values, our taxes, our school system and our quality of life." Much of Pringle's commentary was based on anecdotal information, but clearly the issue of summer rentals had been the topic of debate and notice for years in the Belmar community. He acknowledged the general problem of unruly behavior, obscene language, public urination and ongoing chronic problems of tenants living with beds on floors, in basements, in makeshift lofts, and "mattresses spread from one end of the room to another."
Pringle's observations and perceptions were supported by substantive information including data presented by the zoning officer describing nine people sleeping in a seventy square foot room in three layers of stacked plywood, fourteen people living in a house with an occupancy limit of four, and a general conclusion that eight out of every ten summer rentals were overcrowded. Others described cars parked on lawns, people sleeping in cars, bottles and other debris littering rental properties and people "totally out of control."
Plaintiffs challenged these observations claiming that the Borough was "heavy-handed" and trying to "beat the property owners" out of the summer rental business. Plaintiffs also claimed that year-round rentals received more favorable treatment than summer rentals, and asserted "selective enforcement" of relevant codes and ordinances.
Plaintiffs filed a complaint in the Law Division challenging then Belmar Ordinance 1998-16 (Sept. 9, 1998), as being so pervasively restrictive that it denied plaintiffs the right to use their properties as seasonal rentals. Plaintiffs' complaint included allegations that: (1) different regulations applicable to short-term and long-term rentals violated equal protection; (2) the fees imposed were excessive; and (3) regulation based on occupancy of school-aged children violated the Act.
Following the issuance of injunctive relief enjoining enforcement of that ordinance pending final disposition and, in response to this litigation, Belmar promulgated the Ordinance which amended Ordinance 1998-16 and which is the subject of this appeal.
With these considerations in mind, we now address plaintiffs' specific claims. Plaintiffs contend that the judge erred in failing to find that the occupancy limitation of Ordinance section 26-7.4 discriminates against summer rentals in violation of the equal protection guarantees of the United States and New Jersey Constitutions. Plaintiffs object to defendants' application of the occupancy restriction to summer rentals only and assert that the occupancy restriction has no rational relation to the Borough's problems, because defendants failed to prove that overcrowding or other problems emanate from summer rentals. Plaintiffs also argue that defendants incorrectly calculated occupancy by allowing only bedrooms to be used for sleeping.
Defendants counter that their method of calculation was correct, that they applied the occupancy restriction to all properties, and that the Ordinance was rationally related to protecting the welfare of summer tenants and the community.
Ordinance section 26-7.4(a) provides: "Each Summer Rental License shall state thereon the maximum permitted occupancy of the dwelling unit as calculated by the Code Official pursuant to and in accordance with PM-405." PM-405 refers to The BOCA (Building Officials & Code Administrators International, Inc.) National Property Maintenance Code (4th ed. 1993) (BOCA Code). The BOCA Code sets forth the minimum area required for a dwelling unit's living room, dining room, and kitchen, depending on the number of occupants. PM-405.5. The BOCA Code also provides:
PM-405.3 Area for sleeping purposes: Every
room occupied for sleeping purposes by one
occupant shall contain at least 70 square
feet (70 m2) of floor area, and every room
occupied for sleeping purposes by more than
one person shall contain at least 50 square
feet (50 m2) of floor area for each occupant
thereof.
PM-405.7 Prohibited occupancy: Kitchens,
nonhabitable spaces and interior public areas
shall not be occupied for sleeping purposes.
Both the zoning officer and the fire official interpreted the
phrase "interior public areas" in PM-405.7, as including living
rooms. The judge noted but did not address plaintiffs' argument
that defendants "misinterpreted the BOCA Code by determining the
'maximum occupancy' strictly by measuring bedrooms." The judge
determined only that Ordinance section 26-7.4(a) was consistent
with the BOCA Code.
Plaintiffs contend that defendants' calculation of occupancy
by using solely bedroom space "gives short shrift to the rest of
the dwelling and unjustifiably limits the number of occupants at
the unit." Plaintiffs argue that the reference in PM-405.3 to
rooms "occupied for sleeping purposes," rather than bedrooms,
implies that non-bedrooms could be used for sleeping purposes.
They point out that the BOCA Code defines "habitable space" as
"[s]pace in a structure for living, sleeping, eating or cooking,"
PM-402.1, and they conclude that living rooms may be used for
sleeping provided they meet the square footage requirements of
PM-405.3.
We reject plaintiffs' interpretation that all "habitable
space" except kitchens could be used for sleeping. Such an
expansive view would render the prohibition against using
interior public areas for sleeping, set forth in PM-405.7,
meaningless. While plaintiffs contest defendants'
interpretation, they fail to offer any other reasonable meaning
of "interior public areas," or to cite any authority for their
interpretation of PM-405. We cannot accept plaintiffs' crabbed
view of "occupied for sleeping purposes" other than the well-
understood common parlance of "bedrooms." We conclude, as did
the trial judge, that defendants' interpretation that "interior
public areas" includes living rooms is reasonable and consistent
with a logical reading of the ordinance.
Plaintiffs further claim that defendants apply PM-405 to
determine occupancy for summer rentals, but not for year-round
housing, in violation of plaintiffs' right to equal protection.
According to plaintiffs, it is not disputed that the "Ordinance
is aimed at curbing the summer rental market." Plaintiffs cite
the legislative findings sections of the Ordinance, 26-7.1,
-11.1, which specifically address summer rentals. Plaintiffs
suggests that PM-405 should apply to all properties. They note
that PM-401.1, "Scope," provides that chapter four "shall govern
the minimum conditions and standards for . . . space for the
occupancy of a structure"; there is no limitation to structures
that are rented seasonally.
The Ordinance, however, does require the application of PM-
405 to all buildings. It imposes a penalty for any violation of
the BOCA Code, Ordinance § 26-2.8a, and establishes a fine for
occupancy violations under PM-405, without any limitation to
summer rentals, Ordinance § 26-2.8b. Despite its legislative
findings targeting summer rentals, the occupancy provision of the
Ordinance on its face is universal and does not discriminate
against summer rentals. In fact, the zoning officer observed
that he applied the BOCA Code to all properties, not just summer
rentals. He said: "I cover the whole Property Maintenance Code
with respect to all the properties in Belmar" including all
rentals, summer, winter and year-round. On the other hand,
Pringle conceded that occupancy standards were not imposed on
full-time properties, explaining that "we have our biggest
problems" with summer rentals. Despite this apparent factual
variance, even if defendants applied the BOCA Code occupancy
standards only or primarily to summer rentals, we find no
violation of plaintiffs' equal protection rights, and our
consideration of both the Federal and State Constitutions
supports this conclusion.
The Fourteenth Amendment provides: "No State shall . . .
deny to any person within its jurisdiction the equal protection
of the laws." U.S. Const. amend. XIV, § 1. An economic
regulation such as the Ordinance, which "does not affect a
suspect or semi-suspect class and does not attempt to regulate a
fundamental right, . . . need [only be] rationally related to a
legitimate state interest to satisfy federal equal protection
requirements." Brown v. City of Newark,
113 N.J. 565, 573
(1989). An economic regulation must not be "arbitrary,
capricious, or unreasonable." Id. at 572. Plaintiffs concede
that the rational basis standard applies.
The New Jersey Constitution does not use the term "equal
protection," but states: "All persons are by nature free and
independent, and have certain natural and unalienable rights,
among which are those of enjoying and defending life and liberty,
of acquiring, possessing, and protecting property, and of
pursuing and obtaining safety and happiness." N.J. Const. art.
I, ¶ 1.
"The analysis of fundamental rights under the New Jersey
Constitution differs from analysis of those rights under the
United States Constitution." Greenberg v. Kimmelman,
99 N.J. 552, 567 (1985). Our analysis of this issue requires application
of a balancing test, considering "the nature of the affected
right, the extent to which the governmental restriction intrudes
upon it, and the public need for the restriction." Ibid. "In
striking the balance . . . . the more personal the right, the
greater the public need must be to justify governmental
interference with the exercise of that right." George Harms
Constr. Co. v. New Jersey Tpk. Auth.,
137 N.J. 8, 29 (1994). In
addition, the factors to be balanced are "implicit, if not
explicit, in federal analysis of the due process and equal
protection clauses." Greenberg, supra, 99 N.J. at 567.
An ordinance is entitled to a presumption of validity. Dome
Realty, Inc. v. City of Paterson,
83 N.J. 212, 235 (1980). In
Dome Realty, the Court held that the exemption of owner-occupied,
two-family homes from the requirements of an ordinance
establishing standards of habitability did not violate federal
equal protection. Id. at 243. The Court found a rational basis
in the exemption because "[l]andlords who live in their buildings
have greater incentive to maintain them." Ibid. The city thus
acted both rationally and efficiently in conserving "its
enforcement resources for larger buildings with absentee
landlords." Ibid.
We conclude that directing enforcement of occupancy
standards toward summer rentals, if that occurred, is rationally
related to the legitimate governmental interest of abating the
overcrowding and resulting unacceptable conduct and conditions
that occur in summer rentals. Contrary to plaintiffs' arguments,
the judge's finding, and the underpinning of his equal protection
analysis that these problems emanated from summer rentals, was
supported by ample credible evidence. Rova Farms, supra, 65 N.J.
at 484. The judge quoted the legislative findings of the
Ordinance, cited the supporting testimony of the Mayor and
Council members, and concluded that their testimony "was
believable and generally supported the Borough's reasoning behind
the Ordinance. The inescapable conclusion based on the testimony
is that some summer renters create a significant problem for the
law-abiding citizens of Belmar."
There was considerable persuasive evidence to support the
finding that overcrowding, unsafe conditions, noise and unruly
behavior in Belmar emanated from summer rentals. Although
anecdotal, Pringle personally heard noise and observed rowdy
behavior at summer rentals, and reported complaints about summer
tenants using obscene language and urinating in public. Council
members corroborated reports of drinking, noise, and bad behavior
among summer renters. Borough officials reported overcrowding in
summer rentals and the resulting unsafe conditions, both from
personal observations and from complaints.
Plaintiffs point to the absence of empirical data to support
the conclusion that summer rentals caused Belmar's problems.
However, formal studies conducted by experts are not required.
"Legislative bodies are presumed to act on the basis of adequate
factual support and, absent a sufficient showing to the contrary,
it will be assumed that their enactments rest upon some rational
basis within their knowledge and experience." Hutton Park
Gardens v. Town Council of West Orange,
68 N.J. 543, 564-65
(1975) (upholding a rent control ordinance) (quoted in Dome
Realty, supra, 83 N.J. at 235). More recently, we explained: "A
municipality's legislative exercise is not to be set aside if any
basis may reasonably be conceived to justify the ordinance."
Mannie's Cigarette Serv., Inc. v. Town of West New York,
259 N.J.
Super. 343, 347-48 (App. Div. 1992).
Witnesses who observed overcrowding and unacceptable
behavior at summer rentals, and who, in their capacity as
municipal officials, received complaints from residents, provided
an adequate basis for the judge's factual finding. Their
observations constituted a rational basis, within defendants'
knowledge and experience, to justify the Ordinance. Editorial
comments noted by plaintiffs regarding a distaste for summer
rentals are irrelevant to our analysis and will not invalidate an
otherwise valid ordinance. Conversely, demonizing the proponents
of the legislative action as "evil" is not persuasive in a facial
attack on the Ordinance.
Finally, we reject plaintiffs' contention that a small
number of occupancy violation summonses issued in the summers of
1997 and 1998 proved that overcrowding did not exist. Pringle
explained that
the problem with chronic overcrowding in
Belmar, isn't how many summonses we give out.
The problem is you don't get to give
summonses out. . . . I'm not looking to give
out more summonses for overcrowding.
But the number of summonses that we're
giving out is a small percentage of the
number of problems we have.
As the trial judge aptly noted, the Court in Kirsch Holding
Co. v. Borough of Manasquan,
59 N.J. 241 (1971), in invalidating
zoning ordinances in the Boroughs of Belmar and Manasquan which
prohibited group rentals, acknowledged the same problems in
Belmar that the Ordinance here addresses:
The evil which the ordinance provisions
in question seek to prevent relates to the
uninhibited social conduct of many such group
rental occupants within and without the
buildings. Unquestionably, and regrettably,
excessive noise at all hours, wild parties,
intoxication, acts of immorality, lewd and
lascivious conduct and traffic and parking
congestion often accompany these group
rentals . . . . In essence, they constitute a
public and private nuisance by not meeting
the minimal standards of expected social
conduct even in this rather permissive day
and age.
[Id. at 245.]
To address overcrowding and its resulting problems, the Court
suggested "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." Id. at 254.
Our Supreme Court has subsequently approved municipalities'
addressing overcrowding in this way, rather than by indirect
means. Borough of Glassboro v. Vallorosi,
117 N.J. 421, 428,
432-33 (1990) (noting that college students sharing a home
qualified as a family unit under municipal ordinance); State v.
Baker,
81 N.J. 99, 110, 114 (1979) (observing that municipality
may not condition residence on the number of unrelated persons
living together).
In Sente v. Mayor of City of Clifton,
123 N.J. Super. 274
(App. Div. 1973), vacated as moot,
66 N.J. 204, 209 (1974), we
upheld an ordinance establishing minimum floor space requirements
for housing, commenting:
[H]ousing space limitations present
fundamental policy decisions for
determination by municipal governing units.
Health regulations are of the utmost
consequence to the general welfare, and if
they are reasonable, impartial and not
against the general policy of the State, they
must be submitted to by individuals for the
good of the public, irrespective of pecuniary
loss. The record, as well as common sense,
affirms the existence of a correlation
between minimum dwelling space requirements
and health.
[Id. at 279 (citation omitted).]
This is what defendants have done here. The Ordinance limits the
number of occupants in relation to the available sleeping
facilities and the amount of floor space, in accordance with the
BOCA Code.
Defendants demonstrated that overcrowding and its
accompanying problems occur predominantly in summer rentals.
Directing enforcement of the Ordinance's occupancy restrictions
toward summer rentals is rationally related to the legitimate
public interest of abating these problems sufficient to withstand
a federal constitutional challenge.
Applying the balancing test analyses under Article I,
Paragraph 1 of the New Jersey Constitution, the affected right is
that of property owners to maximize their profits by renting to
more tenants for the summer. The Ordinance intrudes upon this
right by impacting upon the owners' profits. The counterbalance
is the strong public need to alleviate summer overcrowding and
its resulting conditions, which are unsafe to inhabitants and
"detrimental to the health, safety, welfare and quality of life
of other nearby residents and visitors." Ordinance section 26-
7.1E. Plaintiffs' asserted right is economic, not personal;
however, the public need is substantial. We find no
constitutional basis for setting aside the occupancy limitation
provisions of the Ordinance.
The provision in issue, Ordinance section 26-7.6, "Fire Prevention Regulations Applicable to Summer Rental Licensed Premises": (a) prohibits locks on bedroom doors designed to be locked from outside the room; (b) requires smoke detectors to be in working order at all times; and (c) prohibits "beds, mattresses, futons or sleeping bags" in any location other than a bedroom, and prohibits the use of "curtains, sheets, cardboard or any other material of any kind" as "temporary partitions between beds or sleeping areas." Ordinance § 26-7.6a-c.
Subsection d sets forth several requirements for summer rentals with a permitted occupancy of eight or more persons, including: (1) an approved smoke detection system; (2) a fire escape, in addition to another means of egress, for structures with bedrooms on a third floor or higher; (3) self-closing doors that open into passageways "at grade or exit stair"; and (4) corridor doors that are at least one and three-eighths inches solid-core wood or an approved equivalent. Ordinance § 26-7.6d.
The judge determined that the UFC did not preempt more restrictive requirements. Applying the rational basis test for equal protection, because the provisions in question did not target any fundamental right or suspect class, the judge held that they were "presumably valid." However, the judge ruled that subsection c was "too broad." He reasoned that sleeping should be allowed in an area that was not a bedroom, so long as the area was habitable and satisfied the other BOCA requirements. Plaintiffs do not contest this aspect of the judge's ruling, but defendants object to the invalidation of the second sentence of subsection c, prohibiting the use of flammable materials as partitions, which the judge did not address.See footnote 22
One of the provisions which plaintiffs contend that the judge ignored is the Uniform Fire Safety Act, N.J.S.A. 52:27D- 213a (UFSA). It provides: "This act shall not be construed as authorizing the adoption of . . . an ordinance requiring that a building conforming in all respects to the requirements of the 'State Uniform Construction Code Act' [N.J.S.A. 52:27D-119 to - 140] be made to conform to more restrictive requirements." Plaintiffs complain that Ordinance section 26-7.6d violates this provision by requiring new smoke detection systems, when the old systems met the requirements of the Uniform Construction Code and UFC applicable when they were installed.
The Ordinance requires smoke detectors to comply with NFPA (National Fire Protection Association Code) section 70-93. Ordinance § 26-7.6d.1. The Uniform Construction Code, N.J.A.C. 5:23-1.1 to 5.23-12A.6, adopts Chapter 9, "Fire Protection Systems," of the BOCA National Building Code (13th ed. 1996), as part of its fire protection subcode. The BOCA National Building Code section 920.1 requires smoke detectors to be installed in accordance with NFPA section 72. The UFC, N.J.A.C. 5:70-4.19(c), provides that smoke detectors "shall be listed in accordance with ANSI/UL 217, incorporated herein by reference."
Plaintiffs failed to demonstrate that the requirement set forth in the Ordinance is more restrictive than the requirement set forth in either the BOCA National Building Code or the UFC. Nor have they shown that any smoke detector in any summer rental conformed to any regulation in effect when it was installed. Moreover, contrary to plaintiffs' argument, the judge correctly observed that an ordinance may impose more stringent fire safety standards than the UFC. The UFSA provides: "Nothing in this act shall preclude the right of any municipality to adopt an ordinance dealing with fire safety whether or not it is more restrictive than this act and the regulations promulgated thereunder." N.J.S.A. 52:27D-202b.
The UFC allows local governments to regulate the repair, use and maintenance of buildings. N.J.A.C. 5:70-1.4(c). This section provides:
When any provision of this Code is found to be in conflict with any zoning, safety, health or other applicable . . . ordinance . . . of the jurisdiction existing on the effective date of this Code or hereafter adopted, the provision which establishes the higher standard for the promotion and protection of the safety and welfare of the public shall prevail.
[Id.]
Plaintiff's claim that the fire-safety standard contained in the
Ordinance is invalid because it is more stringent than a standard
set forth in the UFC is not only erroneous, it conflicts with the
plain language of the administrative code.
The fire protections set forth in Ordinance section 26-7.6
do not violate equal protection because they are rationally
related to the legitimate government interest of containing the
fire hazard caused by summer overcrowding. See Brown, supra, 113
N.J. at 573. Plaintiffs complain about the expense resulting
from these more stringent fire regulations, but the financial
impingement on them pales in comparison to the need for public
fire safety. See Greenberg, supra, 99 N.J. at 567.
Plaintiffs focus on other seemingly unrelated conduct by
defendants to support their fire protection claim. Arguing that
such action constitutes discrimination, plaintiffs contend that
"Belmar prepared a flier to send out to former renters to weed
out 'undesirables.'" The flier stated: "Welcome to Belmar . . .
WARNING! SUMMER RENTAL OCCUPANCY LIMITS STRICTLY ENFORCED." It
admonished renters to learn the occupancy limit of their units,
advised that it was unlawful to exceed the limit between 1:30
a.m. and 8:30 a.m., and warned that fines would be imposed for
violations.
Plaintiffs apparently view this alleged discrimination
against summer rentals as another violation of equal protection,
supporting their theory that the imposition of stricter fire
regulations was discriminatory.
While alluding to instances of decreased interest in summer
rentals by those reading the flier, plaintiffs failed to provide
any evidential basis for an inference that the purpose of the
flier was to discourage "undesirables." Making prospective
tenants aware of new regulations is not unconstitutional;
moreover, there is no constitutional prohibition against
controlling dangerous conditions, such as overcrowding, and
unruly behavior, such as drinking, cursing and urinating in
public. "Undesirables" who create these conditions and indulge
in this behavior are not a protected class. The imposition of
more stringent fire restrictions on summer rentals did not
violate either equal protection principles or the UFC.
Two elements must be established to succeed on a claim of unconstitutional enforcement of an ordinance _ "a discriminatory effect and a motivating discriminatory purpose." Township of Pennsauken v. Schad, 160 N.J. 156, 183 (1999); State v. Di Frisco, 118 N.J. 253, 266 (1990). As the Court observed in Schad:
In order to establish unconstitutional enforcement of the ordinance, defendant must show both a discriminatory effect and a motivating discriminatory purpose. [Wayte v. United States, 470 U.S. 598, 608, 105 S. Ct. 1524, 1531, 84 L. Ed.2d 547, 556 (1985).] The conscious exercise of some selectivity in enforcement is not a constitutional violation unless the decision to prosecute is based upon an unjustifiable standard such as race, religion, or other arbitrary classification.
[Schad, supra, 160 N.J. at 183 (citation omitted).]
The judge found that "Belmar's officials" were not "evil men and women bent on eliminating summer rentals through any means. . . . They were decent people trying to deal with a problem that has historically plagued Belmar." The judge agreed with plaintiffs that
violations of ordinances by non-summer rental properties . . . have not been as vigorously enforced. However, the building department in Belmar is certainly not over staffed and their priority has been directed toward the problems created from May to September. Perhaps, the Belmar officials could have acted more even-handed in dealing with other municipal problems, but the plaintiffs have not demonstrated that Belmar used an "unjustifiable standard" in enforcing various Ordinance provisions against summer renters.
The basis for the inconsistent enforcement _ summer rentals as opposed to year-round residents _ was justified. As the judge found, summer rentals caused overcrowding and resulting hazards. Directing enforcement of the Ordinance "toward the problems created from May to September" was not an arbitrary or unjustifiable standard; it was reasonably related to the legitimate government objective of abating the unsafe and undesirable conditions caused by overcrowding.
We find no merit in plaintiffs' claims that Belmar's officials demonstrated favoritism or arbitrariness. The anecdotal references to enforcement regarding certain properties falls far short of establishing a pattern of discrimination. The plaintiffs failed to meet their burden to establish selective enforcement.
Ordinance section 26-2.8b provides:
All tenants of a dwelling unit at the time the occupancy thereof unlawfully exceeds the maximum permitted occupancy thereof as calculated by the Code Official pursuant to Section PM-405.0 Occupancy Limitations shall be issued a summons which carries a minimum fine of two hundred and sixty-five ($265.00) dollars, plus court costs, payable through the Violations Bureau of the Municipal Court.
The judge, relying on State v. Kiejdan,
181 N.J. Super. 254
(App. Div. 1981), determined that Ordinance section 26-2.8 was
constitutional because "strict liability is a permissible tool
for a municipal ordinance that is attempting to deal with a
serious health and safety problem." He explained that the strict
liability provision "was appropriate due to the well documented
problems associated with overcrowding."
In Kiejdan, a landlord was convicted of failing to provide
heat to tenants despite his claim that the heating system had
been repeatedly vandalized. We held that strict liability was
"an unexceptionable and appropriate legislative option where
employed to implement a regulatory scheme designed to deal with a
serious social problem." Id. at 258. We considered the
landlord's obligation to furnish heat as "a regulatory scheme
intended to protect and advance the public health and safety,"
and the imposition of strict liability as "a necessary tool for
the effectuation of its public purpose." Ibid. We rejected
defendant's claim that strict liability violated his right to
substantive due process, noting that he could have, but failed to
take action to prevent a recurrence of vandalism. Id. at 260.
Plaintiffs distinguish Kiejdan, suggesting that "it was well
established in [Kiejdan] that the failure to provide heat posed a
threat to the health and safety of the tenants," whereas "[i]n
the instant case no serious social problem exists." As did the
trial judge, we disagree. The record clearly supported a finding
of overcrowding and the problems attendant to such condition.
Generally, unless fundamental rights are involved, "a state
statute does not violate substantive due process if the statute
reasonably relates to a legitimate legislative purpose and is not
arbitrary or discriminatory." Greenberg, supra, 99 N.J. at 563.
Interpreting substantive due process rights under the Fourteenth
Amendment, our Supreme Court set forth a more stringent standard:
"substantive due process is reserved for the most egregious
governmental abuses against liberty or property rights." Rivkin
v. Dover Township Rent Leveling Bd.,
143 N.J. 352, 366, 368,
cert. denied,
519 U.S. 911,
117 S. Ct. 275,
136 L. Ed.2d 198
(1996) (noting that bias of member of rent leveling board did not
result in violation of substantive due process).
We do not perceive that holding tenants liable for occupancy
violations is an egregious abuse against liberty or property
rights. Imposing liability on all tenants for occupancy
violations is not arbitrary or discriminatory and advances the
legitimate purpose of alleviating overcrowding and its resulting
problems. The realities of the tenancies must be recognized.
The complaints fostering the promulgation of the challenged
Ordinance are premised on summer congregants sharing the common
benefits of the rental; imposing liability for the misdeeds of
fellow tenants is an acceptable burden to be assumed by all.
Contrary to plaintiffs' assertion that Ordinance section 26-
2.8 interferes with their "fundamental right of privacy," the
Ordinance carefully protects the privacy of occupants and owners.
Critical procedural safeguards are in place. The Ordinance
requires the code official to attempt to locate the owner or
person in control of the building to request entry. Ordinance
§ 26-2.1a. If the request is denied, the code official must
obtain a search warrant. Ordinance § 26-2.1a, c. No municipal
official may enter a dwelling to determine whether an occupancy
violation has occurred without first obtaining the permission of
the occupant. Ordinance § 26-2.1d.
In State v. Maldonado,
137 N.J. 536 (1994), upholding the
imposition of strict criminal liability on manufacturers and
distributors of controlled dangerous substances when death
results from their ingestion, the Court commented:
Absolute liability for regulatory offenses
traditionally finds justification in
administrative convenience, the need to deter
through the most effective forms of
prosecution, dispensing with proof of intent,
and imposing relatively minor punishment, all
adding up to a conclusion that whatever
injustice results from strict liability is
more than counterbalanced by benefit to the
public.
[Id. at 550.]
Here, the need to deter overcrowding is substantial, and the
punishment, a fine of at least $265 plus costs, is relatively
minor. The benefit to the public in abating the hazardous and
undesirable results of overcrowding outweighs any injustice
resulting from strict liability. The judge was correct in
determining that strict liability imposed on all tenants for
violation of occupancy restrictions did not violate plaintiffs'
(or tenants') right to substantive due process.
Both the United States and New Jersey Constitutions prohibit the taking of private property "for public use, without just compensation." U.S. Const. amend. V; N.J. Const. art. I, ¶ 20. The principles of the federal and state constitutional doctrines "are in general conformity." Gardner v. New Jersey Pinelands Comm'n, 125 N.J. 193, 205 (1991). In Gardner, the Court upheld a portion of the Pineland Commission's Comprehensive Management Plan which restricted residential development to forty-acre lots, thirty-nine of which had to be permanently dedicated to agricultural use. Id. at 204-10. The Court explained that
takings analysis makes two fundamental demands of any zoning scheme: it must substantially advance legitimate state interests, and it cannot deny an owner all economically viable use of the land. . . . The economic effect of the regulatory scheme can be assessed in terms of the adjustment of economic benefits and burdens or the extent of interference with "distinct investment- backed expectations."
[Id. at 205 (citation omitted) (quoting Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 124-28, 98 S. Ct. 2646, 2659-61, 57 L. Ed.2d 631, 648-51 (1978)).]
In determining whether there has been a taking, a court must consider whether a landowner retains viable and economically- beneficial uses of the property and whether the challenged regulations advance legitimate and important public objectives. Id. at 205. See also Edgewater Inv. Assocs. v. Borough of Edgewater, 201 N.J. Super. 267, 271-72 (App. Div. 1985), aff'd, 103 N.J. 227 (1986) (holding that the protections afforded to tenants upon conversion from apartments to condominiums under the Senior Citizens and Disabled Protected Tenancy Act were not an unconstitutional taking since they advanced compelling public policies and represented a valid exercise of police power).
Plaintiffs claims here are multifaceted. They first assert that the application and inspection requirements of the Ordinance prevent them from renting their properties for an entire year. The Ordinance prohibits the code official from inspecting "any dwelling unit for purposes of issuing a Summer Rental License during a period it is occupied by another tenant, regardless of whether the tenant is present at the time of the inspection." Ordinance § 26-3.9c. There is an exception for units occupied by families with school-aged children in the winter (summer rentals at these units may not begin until three days after the last school day). Ordinance §§ 26-3.9c, -7.3.
This restriction does not prevent plaintiffs from renting their properties for the entire year. It has no impact on year- round rentals. If a landlord chooses seasonal rentals, this provision imposes only a short period of unrented time between the summer and winter leases. Inspections must occur within five business days if the summer rental license application is filed before May 1, or within ten business days if the application is filed after May 1. Ordinance § 26-3.9a.
In Dome Realty, supra, 83 N.J. 212, the Court rejected the argument that requiring that a unit be vacant when it was inspected was arbitrary and unreasonable, and that it prevented landlords from earning fair profits. Id. at 235-37. The Court accepted the testimony of housing inspectors that inspections of vacant dwellings were more effective and noted that this scheme encouraged landlords to make apartments available for inspection and to remedy defects. In addition, if violations were uncovered, there would be no need to evict tenants. These considerations also apply to housing in Belmar.
We reject plaintiffs' generalized claims that the Ordinance reduces the privacy of short term tenancies; that it limits plaintiffs' abilities to expand their properties; or that the fire or occupancy restrictions so impair the profitability of the rental units as to amount to a taking. These claims are not supported by the record; in fact, the record suggests that the summer rental market has not abated. Little credible evidence was presented that suggested a reduction in profits. Proofs suggesting "rent concessions," standing alone, fail to satisfy plaintiffs' burden to establish a taking. Gardner, supra, 125 N.J. at 210. Although plaintiffs' "investment-backed expectations" are a relevant consideration in determining economic impact, Penn Cent., supra, 438 U.S. at 124, 98 S. Ct. at 2659, 58 L. Ed. 2d at 648; Gardner, supra, 125 N.J. at 205, such proofs, woefully deficient here, must be considered in the context of whether a property owner is deprived of all or substantially all of the beneficial use of the totality of his property. See Karam v. New Jersey Dep't of Envtl. Prot., 308 N.J. Super. 225, 234-35 (App. Div. 1998), aff'd o.b., 157 N.J. 187, cert. denied, 528 U.S. 814, 120 S. Ct. 51, 145 L. Ed.2d 45 (1999) (holding that the denial of a permit to build a dock on riverfront property, because it would interfere with a shellfish habitat, did not constitute a taking. Destruction of the owner's investment-backed expectations is a factor to be considered, together with whether the regulation deprived the owner of "virtually all economically viable uses of the property" and whether the interest that was taken was vested with the owner).
Certain facts are inviolate. Plaintiffs retain a viable economic use of their property. The Legislature has acted to regulate summer shore rentals, authorizing municipalities to license and supervise them, N.J.S.A. 40:52-1(n), and to hold landlords responsible for tenants' disorderly behavior, N.J.S.A. 40:48-2.12n-r. The Ordinance promotes public health and safety by abating overcrowding and fire hazards. Plaintiffs have failed to establish that the Ordinance deprived them of all economically viable use of their property. There was no taking.
Ordinance section 26-7.4b provides: "It shall be unlawful at any time between the hours of 1:30 a.m. and 8:30 a.m. for the number of adults in a Summer Rental Licensed dwelling unit to exceed the maximum permitted occupancy as calculated by the Code Official." We agree with both the judge and defendants that Ordinance section 26-7.4b does not constitute a curfew because it does not prohibit anyone from appearing in public or on "the streets" after a specified hour. See Black's Law Dictionary 344 (5th ed. 1979).
We disagree, however, with the judge's conclusion that the Ordinance improperly enforces occupancy limits. Ordinance section 26-7.4b does not pertain to occupancy per se. It prohibits the presence of adult occupants and non-occupants alike in a summer rental when the number of people exceeds the permitted occupancy. This does not serve to keep or insure the occupancy level at the permitted number.
The Ordinance contains no definition of occupancy or occupant, but the common meaning of occupant is a person who resides in a dwelling. The number of residents or occupants remains the same regardless of how many people are present in the dwelling at any particular time. The effect of this Ordinance provision is to either exclude guests when all occupants are present or exclude occupants so that guests may be present, during the specified hours. We conclude that Ordinance section 26-7.4b interferes with summer residents' right to have visitors in their homes, a component of their right to privacy, and that it is overbroad in accomplishing a legitimate municipal goal, in violation of summer residents' due process rights.
We first observe that the right to have guests or visitors _ non-occupants _ present in one's home is not, in and of itself, a constitutional or fundamental right. However, as the United States Supreme Court has acknowledged, the right to privacy in one's home encompasses the right to host guests. In an unrelated context, the United States Supreme Court explored the relationship of social guests and privacy rights. In Minnesota v. Olson, 495 U.S. 91, 95-100, 110 S. Ct. 1684, 1687-90, 109 L. Ed.2d 85, 92-96 (1990), the Court held that an overnight guest had a reasonable expectation of privacy, so that a warrantless entry into the house to arrest him violated his Fourth Amendment right to freedom from an unreasonable search and seizure. The Court commented that its holding "merely recognizes the everyday expectations of privacy that we all share. Staying overnight in another's home is a longstanding social custom that serves functions recognized as valuable by society." 495 U.S. at 98, 110 S. Ct. at 1689, 109 L. Ed. 2d at 94.
More recently, Justice Ginsburg, in dissent, emphasized that the home was "the most essential bastion of privacy recognized by the law." Minnesota v. Carter, 525 U.S. 83, 106, 119 S. Ct. 469, 481, 142 L. Ed.2d 373, 390 (1998) (Ginsburg, J., dissenting). She commented:
My concern centers on an individual's choice to share her home and her associations there with persons she selects. Our decisions indicate that people have a reasonable expectation of privacy in their homes in part because they have the prerogative to exclude others. The power to exclude implies the power to include. See, e.g., . . . Alschiler, Interpersonal Privacy and the Fourth Amendment, 4 N. Ill. U.L. Rev. 1, 13 (1983) ("[O]ne of the main rights attaching to property is the right to share its shelter, its comfort and its privacy with others.").
[525 U.S. at 107, 119 S. Ct. at 482, 142 L. Ed. 2d at 391 (other citations omitted).]
Here, plaintiffs and their summer tenants have no complaint about
any physical intrusion into, or search of their homes.
Nevertheless, their right to privacy in their homes includes the
choice to share it with others.
The right to privacy in New Jersey is expansive. It derives
not only from the Search and Seizure Clause of the New Jersey
Constitution, N.J. Const. art. I, ¶ 7, and New Jersey common law,
but also from the "natural and unalienable rights" which all
people have under Article I, Paragraph 1 of the New Jersey
Constitution. N.J. Const. art. I, ¶ 1, supra, p. 12-13.
Hennessey v. Coastal Eagle Point Oil Co.,
129 N.J. 81, 94-99
(1992) (declining to decide whether a private employer's random
urine testing of an employee for drugs violated the employee's
right to privacy, but holding that "constitutional privacy
protections may form the basis for a clear mandate of public
policy supporting a wrongful-discharge claim"). A summer
tenants' right to share their homes with guests or visitors, even
when all occupants are present, is within the panoply of their
right of privacy.
There are other legitimate complaints pertaining to the
effect of this section of the Ordinance. We conclude that the
Ordinance provision in issue here is overbroad. "[T]he
overbreadth doctrine 'involves substantive due process
considerations concerning excessive governmental intrusion into
protected areas.'" Karins v. City of Atlantic City,
152 N.J. 532, 544 (1998) (quoting In re Soto,
236 N.J. Super. 303, 324
(App. Div.), certif. denied,
121 N.J. 608 (1989), cert. denied,
496 U.S. 937,
110 S. Ct. 3216,
110 L. Ed.2d 664 (1990)). The
Legislation must reach "a substantial amount of constitutionally
protected conduct," and "there must be a strong showing that the
statute's deterrent effect on legitimate expression is real and
substantial." In re Soto, supra, 236 N.J. Super. at 324. The
overbreath concept "rests on principles of substantive due
process" and "whether the reach of the law extends too far. The
evil of an overbroad law is that in proscribing constitutionally
protected activity, it may reach farther than is permitted or
necessary to fulfill the state's interests." Town Tobacconist v.
Kimmelman,
94 N.J. 85, 125 n.21 (1983).
Substantive due process requires that the legislation under
attack have a legitimate purpose or a "conceivable rational
basis." Greenberg, supra, 99 N.J. at 563. However, when a
fundamental right is involved, due process requires a "more
exacting" standard. Id. at 564.
The Court set forth this standard in cases in which the
statute in question "encroach[es] on First Amendment interests";
whether it is overbroad
turns upon whether there is a compelling
state interest to be served by the statute
and a substantial connection between that
compelling governmental interest and the
statutory regulation; the compelling state
interest must clearly outweigh the
"repressive effect" on expressional or
associational rights engendered by the
application of the statute.
[New Jersey State Chamber of Commerce v. New
Jersey Election Law Enforcement Comm'n,
82 N.J. 57, 70 (1980).]
Defendants have articulated no legislative purpose for
Ordinance section 26-7.4b, other than to assertedly address the
general overcrowding, and resulting safety hazards and nuisances,
that occur in summer rentals, as set forth in Ordinance section
26-7.1, "Legislative Findings." Prohibiting the number of people
allowed in a dwelling between 1:30 a.m. and 8:30 a.m. to exceed
the occupancy rate abates overcrowding due to guests, but it does
not abate the continuous or long-term overcrowded living
conditions resulting from too many occupants. We acknowledge
that limiting the number of people allowed in a dwelling during
the specified hours may alleviate the problems of "excessive
noise, unruly behavior, obscene language, fighting, littering,
parking of vehicles on lawns, public urination, poor maintenance
of the property and grounds, and violation of trash collection
ordinances," at least during the hours defendants chose for its
application. It thus has a "conceivable rational basis." See
Greenberg, supra, 99 N.J. at 563. However, applying the
"compelling state interest" test used when the legislation
encroaches upon First Amendment or fundamental rights, Chamber of
Commerce, supra, 82 N.J. at 70, the government interest served by
Ordinance section 26-7.4b, reducing the undesirable behavior
described in Ordinance section 26-7.1, and overcrowding due to
guests, does not outweigh its repressive effect on privacy and
associational rights.
There are instances where the asserted public safety
interests claimed by defendants are potentially at cross-
purposes. It is a short inductive leap to envisage summer rental
occupants or their guests consuming alcoholic beverages. In
these circumstances, we can further perceive the restriction
potentially encouraging people who are intoxicated to drive
because they are not allowed to remain in the dwelling unit after
1:30 a.m. if the number of people present exceeds the occupancy
limit. Public safety would be well-served by permitting
intoxicated guests or occupants to remain at the summer rental
unit until they are able to depart safely, instead of forcing
them to leave. This public safety problem of driving while
intoxicated renders the necessity for Ordinance section 26-7.4b
less compelling in a balancing test.
Additional probable circumstances are equally of concern.
Other ordinances or statutes prohibiting disorderly or criminal
conduct apply to the objectionable behavior which Ordinance
sections 26-7.1 and -7.4b seek to prevent. See, e.g., N.J.S.A.
2C:33-2a(1) (engaging in "fi