Conford, Kolovsky and Carton. The opinion of the court was delivered by Conford, P.J.A.D.
Plaintiffs, who are for the most part owners of two-family houses ("duplexes") held for summer rental, challenge the validity of a zoning ordinance of Margate City, an oceanside community in Atlantic County. Under attack is the provision of the ordinance which defines "family," for purposes of the use restriction of certain zones to "single family dwellings" and to "two family houses," among other uses, as follows:
The foregoing definition is contained in a revised zoning ordinance adopted in October 1967, and it was legislated for the purpose of eliminating what the governing body considered undesirable conditions, hereinafter described, attending the summer rental of dwelling units to substantial
groups of unrelated young men or young women. Plaintiffs contend that this limitation on the use of their property is an arbitrary and unwarranted encroachment on the use of private property. The Law Division judge, after a hearing at which testimony was taken, concluded that plaintiffs had failed to carry their burden of overcoming the presumption that the provision was valid and free from arbitrariness or unreasonableness.
Plaintiffs had tendered a subordinate contention that the municipal authorities were enforcing the ordinance in a discriminatory and oppressive manner. We do not reach this issue, which the trial court resolved in favor of defendant, as we have concluded that, as written, the provision impugned is void as an arbitrary and unreasonable restriction upon plaintiffs' right to use or rent their properties, contrary to the constitutional requirements of substantive due process. As further indicated in the course of this opinion, however, we do not entertain the view that the municipality is necessarily without legislative power to control the problem with which it has been concerned by a proper exercise of the zoning authority in relation to occupancy of dwelling units.
Defendant offered proofs at the trial that "group rentals," as tenancies of groups of unrelated persons are commonly denominated in the area affected, are frequently attended by "noise and disturbance." The renters are usually in the 20-30 age range and unmarried. The testimony of the mayor was: "We got phone calls from neighbors who can't sleep, who can't enjoy their homes." The police respond and "pick up any large numbers that were making the disturbance." Moreover, substandard structural and sanitary conditions were found in some cases, allegedly attributable to absentee ownership and irresponsibility of the renters, with premises littered with empty beer and liquor bottles and dirt and debris.
Plaintiffs emphasize that under the terms of the definition of "family" in the ordinance, even occupancy of dwelling
units by unrelated owners themselves is proscribed; for example, three schoolteachers, or close friends, or other small groups of unrelated persons nevertheless constituting a regular housekeeping unit and having common interests. They contend that, in principle, the unreasonableness of the foregoing restrictions under the ordinance extends to occupancy of dwelling units by such innocuous groups in possession as tenants, whether on an all-year basis or for the summer months. As owners, they contend that their property rights are unreasonably curtailed in their being deprived of the opportunity to rent to groups unreasonably restricted by the tests of relationship or numerical limitation to two persons. They argue that such criteria unwarrantably impair the normally expectable economic return from the properties which are functionally appropriate to occupancy by more than two persons. The proofs indicate, however, that such units as are held by plaintiffs are generally rented to groups of six to eight persons. The record is devoid of information as to the number of rooms contained in such units and as to the extent of the kitchen (if any) and sanitary facilities made available to groups of that size.
The economic stake of the plaintiffs in freedom from the restriction of the ordinance is that, by and large, greater rentals can be realized from groups than from normal families usually having only one wage-earning head.
Case authority directly or tangentially bearing upon the constitutional validity of ordinances restricting occupancy of conventional dwelling units to groups related by blood, marriage or adoption is fairly sparse. In this State we may consult Larson v. Mayor, etc., Spring Lake Heights , 99 N.J. Super. 365 (Law Div. 1968); Marino v. Mayor, etc. Norwood , 77 N.J. Super. 587 (Law Div. 1963); and Newark v. Johnson , 70 N.J. Super. 381 (Cty. Ct. 1961). The latter two cases involved zoning ordinances. Larson was concerned with two ordinances, of ...