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Freygang v. Borough of Verona

Decided: January 21, 1977.

WALTER H. FREYGANG, PLAINTIFF-RESPONDENT,
v.
BOROUGH OF VERONA, A MUNICIPAL CORPORATION; COUNCIL OF THE BOROUGH OF VERONA; WALTER D. MCKINLEY, MAYOR OF THE BOROUGH OF VERONA, DEFENDANT-APPELLANTS, AND VERONA TENANTS ORGANIZATION, DEFENDANT



Matthews, Seidman and Horn.

Per Curiam

[146 NJSuper Page 311] The Borough of Verona, defendant-appellant herein, adopted a rent control ordinance, No. 2-73, in February 1973. Under its provisions a rent leveling board was created. Owners of tenanted residential units not otherwise exempt under the terms of the ordinance were prohibited from increasing rents except in compliance with the requirements of the ordinance. Plaintiff Walter H. Freygang, owner of premises within said borough occupied by both residential and commercial tenants, increased the rents of certain tenants without complying with the provisions of the ordinance. The Verona Tenants Organization thereupon filed

a complaint with the rent leveling board, asserting that the subject premises were controlled under the ordinance and that Freygang improperly increased the rents. After a hearing the board decided that the increase was invalid. On appeal, under the ordinance, to the borough council, and again following a hearing, that body affirmed the decision of the board.

Plaintiff then filed an action in lieu of prerogative writs in the Superior Court, Law Division, seeking a review of the determination of the council. Following a trial de novo on a record made before the judge by agreement, he entered a judgment declaring that the subject premises were exempt from the provisions of Ordinance 2-73. The borough, being one of the defendants named in the in lieu action, is the sole appellant.*fn1

The determination of the issue raised below as well as before us revolves around the interpretation of ยง 1(a) and (b) of the ordinance. The ordinance by its terms was operative only with respect to rents of housing space not otherwise exempt. Sections 1(a) and (b) provide:

(a) "Housing space" means and includes that portion of a dwelling rented or offered for rent for living and dwelling purposes to one individual or family unit together with all privileges, services, furnishings, furniture, equipment, facilities and improvements connected with the use or occupancy of such portion of the property.

(b) "Dwelling" means and includes any building or structure or trailer or land used as a trailer park, rented or offered for rent to one or more tenants or family units. Exempt from this ordinance are motels, hotels, and similar type buildings and buildings in which at least one-third of the occupied floor space is commercial, and housing units of two units or less. Housing units newly constructed and rented for the first time are exempted, and the initial rent may be determined by the landlord. All subsequent rents will be subject to the provisions of this ordinance.

The trial judge, in reversing the decision of both the rent leveling board and borough council, contrary to their findings, held that the subject premises were occupied more than one-third for commercial purposes and consequently the owner was not restricted by the ordinance in increasing the level of rents. We disagree and accordingly reverse.

In reaching his conclusion the judge made the following findings, which were not disputed:

Residentially Occupied Floor Space

1. Cactus room ...


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