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Al Walker Inc. v. Borough of Stanhope

Decided: October 24, 1956.

AL WALKER, INC., A CORPORATION OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
BOROUGH OF STANHOPE, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-RESPONDENT



Clapp, Jayne and Francis. The opinion of the court was delivered by Francis, J.A.D.

Francis

The Borough of Stanhope adopted an ordinance providing for the licensing and regulation of trailer camps. Plaintiff Al Walker, Inc., a retail seller of trailer homes, attacked the validity thereof in a prerogative writ proceeding. The company is not a resident or taxpayer of the municipality; it neither owns nor rents any property intended to be put to trailer camp use; no application for a license to operate such a camp has been made or refused; its place of business is located elsewhere, in a neighboring township, Roxbury. The ordinance makes no attempt to regulate the manufacture or sale of trailers.

The standing of the plaintiff to maintain the action was questioned and by agreement that matter was taken up first by the trial court. After a hearing limited to proof on the subject, judgment was entered for the defendant. Hence this appeal.

The ordinance defines a trailer camp as a "tract of land designed, maintained or intended for the purpose of supplying a location or accommodation for a trailer but shall not include lots on which unoccupied trailers may be parked for the purpose of sale." And it provides that "it shall be unlawful for any person to maintain or operate within the limits of the Borough of Stanhope, any trailer camp for hire or without charge unless such person shall first obtain a license therefor." An annual fee is assessed for the license and a daily service and inspection fee must be paid also. The size of the camp tract is fixed and regulations are established for water and sewage connections, for laundry, toilet facilities, for garbage disposal and for use of electricity.

For nine years plaintiff has been a retail dealer in house trailers in Roxbury Township. It operates a sales lot at the Ledgewood Traffic Circle four miles from defendant

borough, and is the only sales agent within a radius of 20 miles in every direction from that location.

Testimony adduced showed that when the Walker company commenced operations, of 14 municipalities lying within an 18-mile radius, only one had an ordinance governing the occupancy of trailers within its borders. At the time of the hearing all of them had adopted such measures. According to plaintiff's witness, some of these ordinances prohibit the parking of the mobile homes for occupancy purposes; others simply regulate the practice. As a result, according to plaintiff, the cost of doing business has increased because it has become necessary to solicit and advertise outside the normal trading area, sales and consequent profit have decreased, and in the past two years only 15% of its sales were transacted within the 18-mile radius spoken of above. With particular respect to Stanhope, the claim was made that although 15 prospective customers called at its place of business during the two years prior to June 1955, not one resident of the borough came in after the passage of the ordinance and down to the date of the hearing. In addition, some rather ambiguous testimony was introduced to the effect that after the ordinance two trailers which had been sold for use there were repurchased. The buyers were not identified nor produced, and the relation between the reacquisition and the ordinance is not at all clear.

The trial court recognized that the regulatory measures of the various municipalities affecting the use of trailers in plaintiff's potential sales area might visit indirect economic loss on the plaintiff but declared that under the existing law of this state no legally protectible interest had been shown.

The applicable rule has been settled for some time. Under it a person may attack the validity in toto of an ordinance if he "has sustained, or is in immediate danger of sustaining, some direct and certain injury as the result of [its] enforcement * * *." Koons v. Board of Com'rs of Atlantic City , 134 N.J.L. 329, 338 (Sup. Ct. 1946), affirmed o.b. 135 N.J.L. 204 (E. & A. 1947); Musicians' Protective Union, Local 526, American Federation of Musicians

v. Jersey City , 4 N.J. Super. 147 (App. Div. 1949); Gurland v. Town of Kearney , 128 N.J.L. 22 (Sup. Ct. 1942); O'Mealia Outdoor Advertising Co. v. Mayor and Council of Borough of Rutherford , 128 N.J.L. 587, 591 (Sup. Ct. 1942); Rosencrans v. Eatontown Tp. , 80 N.J.L. 227 (Sup. Ct. 1910).

Examples of direct injury which will give standing to question the validity of a municipal enactment in its entirety are: imposition of a sales tax on residents of a city (Koons v. Board of Com'rs of Atlantic City, supra); prohibition of use of outdoor advertising billboards maintained within the city on properties leased or owned by an advertising agency to publicize the wares of others (O'Mealia ...


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