For dismissal -- Chief Justice Hughes and Justices Jacobs, Hall, Sullivan and Clifford. For affirmance -- Justices Pashman and Mountain. The opinion of the Court was delivered by Hall, J. Pashman, J. (dissenting).
This case is long since moot. While we may determine a moot appeal when the public interest in the issue presented is so great as to make a resolution of it desirable, Busik v. Levine, 63 N.J. 351, 364 (1973), appeal dismissed 414 U.S. 1106, 94 S. Ct. 831, 38 L. Ed. 2 d 733 (1973), we should not do so when, as here, the record and contentions on a novel and very far-reaching question are so unsatisfactory that we cannot be confident of reaching the correct result.
The action, in lieu of prerogative writ, commenced in the Law Division in 1970, sought a declaration of invalidity of a police power ordinance of the city of Clifton requiring a certain minimum floor area for each dwelling unit based on the number of occupants. The enactment then required 150 square feet of floor space for each of the first two occupants and an additional 100 square feet for each additional occupant regardless of age. The prohibition of the ordinance extended to any person occupying, or letting to another for occupancy, any dwelling or dwelling unit which did not comply. Prior to 1964, the ordinance required only 120 square feet for the first occupant and 80 square feet for each additional occupant, except that only 60 square feet was
needed for each child under six years of age. By amendment in that year, the requirement for the first occupant was raised to 150 square feet and 100 square feet for each additional occupant, irrespective of age. An amendment in 1970 raised the requirement for the second occupant to 150 square feet.
Plaintiff was employed as superintendent of a garden apartment complex and received the use of an apartment rent-free as part of his compensation. His family consisted of his wife and five children. The apartment was not large enough to meet the requirements for a living group of that size. Plaintiff was threatened by municipal officials with enforcement of the ordinance against him, which would mean he would not only have to vacate the apartment, but give up his job. The suit followed.
The trial court sustained the enactment, without a trial, by granting defendants' motion for summary judgment.*fn1 While plaintiff's appeal was pending unheard in the Appellate Division, he was discharged from his position and so required to vacate the apartment. The family moved to another municipality in October 1972 and obviously plaintiff no longer has any real interest in Clifton's ordinance or litigation attacking it. The action, which thereby became moot, has since been carried on in plaintiff's name by a civil liberties organization (which arranged counsel for him originally) having no standing itself. Such included continuation of the appeal in the Appellate Division, resulting in an affirmance of the trial court, 123 N.J. Super. 274 (1973), and the prosecution of the present appeal to this court, which was brought on the claim of involvement of a substantial constitutional question. R. 2:2-1(a)(1).
Regulations basing minimum floor area requirements of a dwelling unit on the number of occupants apparently have
never previously been passed upon by an appellate court. The only case that can be found on the subject is a trial court opinion in Ohio, Nolden v. East Cleveland City Commission, 12 Ohio Misc. 205, 232 N.E. 2 d 421 (1965), which sustained a comparable enactment, having, however, certain ameliorating aspects.
The instant ordinance affects a fundamental for living -- housing -- very drastically. Not only must an apartment tenant vacate if the birth of an additional child or the arrival of an aged relative causes the minimum required floor area to be exceeded, but the owner of a single-family dwelling must likewise move his family from their own home if such an event occurs. The minimum figures are such that mobile homes and two person occupancy of a one-room apartment are impossible. And no distinction is made with respect to the age of the occupants; young children and possibly elderly people may well need less living space. Moreover, since this regulation is grounded in the general police power and not as part of the municipality's zoning ordinance, under the law of this state to date it applies to all dwelling units as of the moment of passage and there is no protection to a nonconforming unit. In addition, for the same reason, there is no possibility of obtaining any alleviation. The regulation in the Ohio case cited was at least subject to these ameliorative features.
Turning to the factual and legal contentions and the record, the case was, as we have said, decided in the Law Division on motion without a trial. Plaintiff offered no substantial evidence and rested on abstract federal constitutional propositions largely of little relevance. These included claims of violation of due process and equal protection by burdening the exercise of fundamental rights without a compelling state interest, such as the right to privacy, the right to procreate,*fn2
the right to marry, the right to the free exercise of religion, and the right not to be uprooted, as well as by discrimination against large families, the poor and racial minorities. The municipality relied on the conclusional affidavit of its local health officer, as a purported expert (he was not even cross-examined), in support of the legal propriety and reasonableness of the regulation. The arguments on appeal follow the same tack.
We assume that government may legitimately require a minimum floor area for living units based on the number and character of the occupants in the interest of public health and that such power has been delegated to municipalities in this state by N.J.S.A. 40:48-2. The real questions with respect to any such regulation are whether the minimums prescribed are legally reasonable, and if so, whether the regulation was actually adopted for health reasons and not for some other purpose. As previously indicated, regulations of this kind drastically affect the availability of housing, especially for large families of poor or modest means, like plaintiff's, as to whom there is undoubtedly a general severe shortage of decent, suitable living accommodations. The record indicates this is true in Clifton.
The consequences being so great in so fundamental an area, perhaps justification for the particular enactment ought to rest upon the municipality. See Moyant v. Paramus, 30 N.J. 528, 535 (1959). Indeed, the legal reasonableness of a regulation of this kind might depend upon proof that every person enjoying less than the particular prescribed minimum amount of living space necessarily encounters a realistic individual health hazard and presents a substantially certain public health problem. (It may be noted that the Clifton minimums are, in one respect at least, higher than suggested in the proposed model housing codes relied upon in the affidavit.) A municipal enactment should neither be struck down nor validated when, as here, truly vital aspects have not been presented or considered.
Furthermore, the absence of any exploration at the trial level of why this ordinance or its predecessors was adopted makes one wonder what was the real reason for passage. The health officer's affidavit did not say that health was the reason and the progressive increases in the minimum suggest the possibility of some other motivation. Judicial notice can be taken of the fact that Clifton is adjacent to the cities of Paterson and Passaic, both of which have substantial and increasing numbers of poor families predominantly from minority groups, which might be expected naturally to spill over into Clifton. Such families are frequently large and cannot afford expensive quarters, but still need extensive municipal services. The Clifton ordinance will effectively wall them out of the municipality. The city should be required to establish that it was not enacted for any such improper purpose.
For all of the reasons mentioned, we should not decide this moot appeal nor should the Appellate Division have entertained it. It is dismissed and the judgment of the Appellate Division is vacated. No costs.
PASHMAN, J. (dissenting). The majority now concludes that this case is moot. The majority does not contend that this conclusion is compelled by the doctrine of mootness on appeal. It necessarily concedes that this Court can and often has decided factually moot cases of public interest. Dunellen Bd. of Ed. v. Dunellen Ed. Ass'n, 64 N.J. 17, 21 (1973); Busik v. Levine, 63 N.J. 351, 364 (1973), appeal dismissed 414 U.S. 1106, 94 S. Ct. 831, 38 L. Ed. 2d 733 (1973); John F. Kennedy Memorial Hospital v. Heston, 58 N.J. 576, 578 (1971); Bd. of Ed. E. Brunswick Tp. v. Coun., E. Brunswick, 48 N.J. 94, 109 (1966); State v. Perricone, 37 N.J. 463, 469 (1962), cert. denied, 371 U.S. 890, 83 S. Ct. 189, 9 L. Ed. 2d 124 (1962); Annotation, "Public interest as a ground for refusal to dismiss an appeal, where question has become moot, or dismissal is sought by one or both parties," 132 A.L.R. 1185 (1941). Nor does the majority suggest that the issues presented for consideration here are not of public
interest. Indeed, it takes the remarkable position that this case should not be decided for the very reason that the questions are "novel and very far reaching." Ante at 205.
The doctrine of mootness serves important interests of judicial economy and restraint. Decision of moot cases involves the risk of wasteful expenditure of judicial resources on issues of practical importance to no one, of erroneous or overgeneralized opinions caused by the absence of the vigorous adversary advocacy necessary to focus questions of fact and of law and to bring to the court's attention all the ramifications of the issues. It also involves the creation of unnecessary constitutional precedents which limit the flexibility of subsequent action by courts and legislature. Against these considerations must be balanced the interest of the judicial system in avoiding repeated relitigation of the same issues and, of most important weight, the interest of the people in having issues of public importance given prompt and definitive resolution.
The position of this Court was enunciated most clearly by Chief Justice Weintraub in Busik v. Levine, 63 N.J. 351 (1973):
The balance in this case clearly weighs against dismissal on grounds of mootness. The case has been fully and completely -- even zealously -- briefed and argued by both parties.*fn1 The advocacy displays no lack of adversary spirit.
The Court is not faced with the perils of deciding an abstract question or couching its opinion in terms of an unrealistic or artificial factual situation. The record displays a real set of facts, one which sharply focuses the constitutional arguments the parties have made. Cf. Davis, Administrative Law, § 6.14 at 274-83 (1970 Supp.).
Finally, and most significantly, this is not an idle exercise in constitutional jurisprudence. The Clifton ordinance at issue in this case substantially resembles the Model State Housing Code Ordinance developed by the New Jersey Department of Community Affairs for adoption by New Jersey municipalities. It also resembles model codes developed by the United States Public Health Service and the American Public Health Association and has significant features in common with provisions of the New Jersey State Sanitary Regulations. N.J.A.C. 5:10-6.3. The challenges made by plaintiff to the ordinance, whether ultimately meritorious or not, raise fundamental questions as to both the power of municipalities to act to forestall urban blight and protect the health of their residents and the constitutional limits on the means they may use to achieve those ends. These are questions which the Court ought to resolve at the earliest opportunity. In the words of Justice Brennan, "[The Court] should not transform principles of avoidance of constitutional decisions into devices for sidestepping resolution of difficult cases." De Funis v. Odegaard, 416 U.S. 312, 350, 94 S. Ct. 1704, 1722, 40 L. Ed. 2d 164, 188 (1974) (dissenting opinion).
Ordinarily, having registered my dissent to the decision to treat this matter as moot, I would stop at this point. In this case, however, the majority has acted in a manner which I find quite objectionable. Having first declared that this case ought not be and will not be decided, the majority then goes ahead, in effect, to comment on the merits -- and not just to comment on the matter, but to do so in a fashion somewhat short of a reasoned analysis of the questions of fact and law here presented. I feel obliged, therefore, to comment at some length on the merits of this case.
Plaintiff, his wife and four children, moved to the City of Clifton in 1969, where they occupied a 4 1/2 room apartment of approximately 600 square feet of floor space when the applicable municipal ordinance required a minimum of 650 square feet. At the time, Mr. Sente was employed as the building superintendent and received his apartment rent-free as partial compensation. Further amendments to the ordinance and the subsequent birth of a fifth child in 1970 resulted in the Sentes' apartment being 200 square feet smaller than the ordinance stipulated.
By letter dated July 1, 1970, the housing director of Clifton informed plaintiff that he was in violation of the ordinance and should vacate the premises. A subsequent letter, dated October 13, 1970, gave plaintiff a six-month grace period "because of hardship placed on larger families due to shortage of rental units." Since then, Mrs. Sente had given birth to a sixth child, late in the summer of 1972. On October 21, 1972, plaintiff and his family moved to Lodi, after being discharged as building superintendent and told to vacate his Clifton dwelling.
On December 21, 1970, plaintiff filed a complaint in lieu of prerogative writ, challenging the validity of Chapter 9, Article 3, Section 9-31(a)*fn2 of the Revised Ordinances of Clifton.
Plaintiff has vigorously maintained that both the equal protection and due process clauses of the Fourteenth Amendment have been violated. To this, defendant Clifton responded that the ordinance was a legitimate exercise of police power, and was both reasonable and necessary for the public health and welfare. Clifton filed an affidavit of its health officer to this effect. The said official made it clear that in his opinion "adequate housing is directly related to public health" and, therefore, believed that the ordinance was "eminently reasonable and did not exceed a minimum standard reasonably required for the maintenance and preservation of the health of the citizens of the City of Clifton." He further indicated that the ordinance's requirements were substantially similar to those suggested in the New Jersey Housing Code, a proposed model State housing code issued jointly in 1962 by the Department of Conservation and Economic Development and the Department of Health.
Plaintiff's motion for summary judgment was denied and on defendants' similar motion, the judge gave plaintiff 60 days to present evidence demonstrating that the standards set forth in the ordinance were unreasonable. Plaintiff failed to present any such evidence, and defendants' motion was granted. As a matter of fact, plaintiff's counsel conceded at oral argument that "Mrs. Sente realizes right now that her apartment is not adequate for her and her five children."
Plaintiff's appeal to the Appellate Division proved unsuccessful; it was determined that the ordinance was authorized under N.J.S.A. 40:48-2, that it did not conflict with any other State law, and that plaintiff's constitutional allegations were without merit. Sente v. Mayor & Mun. Coun. ...