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Cooney v. Township of South Harrison

Decided: January 25, 1971.

NELSON COONEY & SON, INC., PLAINTIFF-RESPONDENT,
v.
TOWNSHIP OF SOUTH HARRISON, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-APPELLANT



For reversal and remandment -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the Court was delivered by Hall, J. Jacobs, J., (concurring). Jacobs, J. concurring in result.

Hall

Plaintiff, the sole mobile home park operator in defendant township, challenged, by this action in lieu of prerogative writ, various amendatory provisions of the township's ordinance licensing and regulating such parks. The attack with which we are concerned was directed to the validity of a 1968 amendment which increased, from $12 to $18, the amount of a monthly fee imposed upon the park operator for each mobile home space occupied in excess of one week during the previous month. The fee was declared to be imposed for revenue purposes. This monthly exaction, together with a $200 annual operating fee (which was not challenged and may well be said not to exceed beyond permissible limits the costs of regulation prescribed by the ordinance), represents the municipal charge for the yearly business license required by the ordinance.

The Law Division struck down the increase in the monthly fee as confiscatory and excessive on the basis that, while the increased fee bears a reasonable relation to the value of local governmental services furnished to the inhabitants of the park and properly includible in the monthly fee, it prevents a fair margin of profit to the operator and renders the park non-competitive with similar facilities in adjacent municipalities where the license fee is lower. Defendant was ordered to return to plaintiff the amount of the increase

($2904) which the latter had paid. The Appellate Division affirmed this ruling, as well as all other aspects of the trial court judgment, in an unreported decision adopting the opinion of the trial court. We granted certification on the township's petition. 56 N.J. 480 (1970).

The only question actually presented on this appeal -- really raised for the first time in this court -- is the propriety of considering profit margin and competitive ability in passing upon the validity of the amount of a municipal license fee for trailer parks. Resolution of that question depends upon and makes it necessary first to review, however, the deeper matter of the legitimate object and scope of such fees and the true nature thereof.*fn1

The operation of plaintiff's 50 space park is typical. Each mobile home is individually owned. The owner leases a space for it from the park operator on a monthly rental basis. The operator furnishes water, sewage and other utility facilities and connections. The mobile homes, although of considerable size and fully equipped for permanent modern living and not simply transient camping facilities, are freely moveable by special towing equipment. Many remain in the same

park for years; others move more frequently to similar parks elsewhere. The mobile home in a park is indeed a hybrid -- a readily moveable one-family dwelling of substantially less cost and value than a conventional housing structure, owned by the occupant, but located somewhat temporarily in a semiattached fashion on the land of another.

While resident in a park, the mobile home occupant receives all of the general benefits and particular services of the local and county government that are available to persons living in conventional housing accommodations as owners or tenants, and who pay for them, directly or indirectly, primarily through ad valorem property taxation on realty. Mobile homes, however, are not taxable, under present statutes in this state, as either real or personal property.*fn2 The park itself is taxed only on the value of the land and the improvements constructed thereon by the operator.

The space charge, almost universally imposed by New Jersey municipalities having mobile home parks within their boundaries as part of the license fee for the park, is expected to be and is in fact passed on to and paid by the trailer owner through inclusion in his space rental. Here, when the monthly fee went from $12 to $18, plaintiff increased the space rental from $45 to $51. The obvious pragmatic object of such a fee -- and it was so testified by a member of the township governing body in this case -- is to force mobile home residents to pay indirectly something, in lieu of property taxes, for the governmental benefits and services that they receive or are available to them, which otherwise would be obtained without charge and at the expense of the real property owners in the municipality.

Since New Jersey also has no special statute relating to the collection of revenue from mobile home park residents

to cover governmental benefits, as do many states,*fn3 authority for a municipality of this state to exact a fee for this purpose has to be found in our general business licensing statute. N.J.S.A. 40:52-1 and 2. Section 1 provides in pertinent part:

The governing body may make, amend, repeal and enforce ordinances to ...


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