decided that government regulation of the landlord-tenant relationship does not implicate the constitutional prohibition against uncompensated government takings of private property for public use. Such regulation passes constitutional muster, therefore, provided it "satisfies the demands of due process and equal protection." 727 F.2d at 302. The holding in Troy leaves no doubt that the taking clause is not implicated in this case.
The Troy court held that "statutory tenancy laws protecting holdover tenants are not takings, but merely regulations of the use to which private property may be part," 727 F.2d at 302. In its brief in opposition to this motion, however, plaintiff asserts that " Troy, Ltd. did not hold that laws creating statutory tenancies are not takings, but merely regulations of the use to which private property may be part." (Emphasis in original.) The plaintiff apparently understood the court's holding to be dicta. That understanding is incorrect. The court expressly bottomed its decision on the absence of a taking, "in order to obviate the necessity to determine the factual question" of whether the state had provided just compensation by requiring the tenants to pay rent. 727 F.2d at 301. Thus the Troy decision binds this Court, and requires it to dismiss this claim.
Substantive Due Process
Plaintiff alleges in its complaint that the ordinance is an example of "excessive police power." It may be that regulation which is "'stretched as far' as to destroy property rights" violates the due process clause. Williamson, 105 S. Ct. at 3123, quoting Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413, 67 L. Ed. 322, 43 S. Ct. 158 (1922). However, the same reasons for refusing to consider an expectation-interest taking claim apply to this sort of due process claim. Williamson, 105 S. Ct. at 3124. For the same reason that the taking claim could not survive, this aspect of the due process claim must also be dismissed.
The plaintiff also asserts that the ordinance is irrational in that it will not further the purposes stated in the preamble. The preamble states that the practice of withholding housing units from the market is done "at the expense of persons desiring to rent such units;" and additionally that the ordinance is intended to "protect the rights of tenants."
The prohibition against withholding units is an obvious attempt to keep more units occupied in the short term. In addition, the interrelationship of the ordinance and the state landlord-tenant laws seems to be a rational way to protect the tenants' state-granted right to buy their units in the event of condo or co-op conversion.
The plaintiff argues, however, that in the long term the ordinance will have the effect of reducing available housing in Hoboken, by reducing the incentive to rehabilitate and renovate existing housing. This is a question of policy that should be addressed to the Mayor and City Council, and not to this Court. For instance, it may be that the city has decided to risk reduced overall housing stocks in the future in order to slow a current pattern of dispossession and dislocation of the city's poorest residents. Such a decision is completely within the province of the city. "In this sphere of economic and social regulation we 'properly defer to legislative judgment as to the necessity and reasonableness'" of the ordinance. Troy, 727 F.2d at 298, quoting Energy Resources Group, Inc. v. Kansas Power and Light Co., 469 U.S. 256, 105 S. Ct. 697, 706 (1983); see City of New Orleans v. Dukes, 427 U.S. 297, 49 L. Ed. 2d 511, 96 S. Ct. 2513 (1976).
Plaintiff asserts that the ordinance establishes "invidious discrimination," but the class of persons discriminated against is never defined. Neither "fundamental personal rights" nor classifications based on "distinctions such as race, religion, or alienage" are at issue here. Therefore, the ordinance must merely meet the test of being "rationally related to a legitimate [governmental] interest." Dukes, 427 U.S. at 303-304. As discussed above, this ordinance easily meets this "rational relationship" test.
In order to defeat a law on vagueness grounds in a facial challenge, a plaintiff must show that it is "impermissibly vague in all its applications." Village of Hoffman Estates v. The Flipside, Inc., 455 U.S. 489, 498, 71 L. Ed. 2d 362, 102 S. Ct. 1186 (1982).
A law is impermissibly vague when "a person of ordinary intelligence" does not have "a reasonable opportunity to know what is prohibited," or when it fails to "provide explicit standards" to the persons charged with enforcing it. Grayned v. City of Rockford, 408 U.S. 104, 108-109, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972).
The terms of this ordinance are quite clear. Any landlord with a vacant apartment must notify the Rent Levelling Board within 30 days; if he does not obtain a waiver, and the apartment remains vacant for 60 days, he may be fined. As yet, there is no vagueness here. If "concrete problems of constitutional dimension" appear in the future, "it will be time enough to consider them when they arise." Joseph E. Seagram & Sons, Inc. v. Hostetter, 384 U.S. 35, 52 (1966).
The Eighth Amendment Claim
Plaintiff alleges that the penalties enacted by the ordinance violate the eighth amendment. Eighth amendment scrutiny, however, is not appropriately applied to a civil ordinance such as this. Eighth amendment protections apply only after a finding of guilt in a criminal prosecution comporting with due process. When punishment for a criminal violation is not at issue, the Due Process Clause of the fourteenth amendment is "the pertinent constitutional guarantee." Ingraham v. Wright, 430 U.S. 651, 671, 51 L. Ed. 2d 711, 97 S. Ct. 1401 (1977). As there is no allegation that the plaintiff has been subjected to a finding of guilt pursuant to due criminal process, this case presents no eighth amendment issue.
The Federal Antitrust Claim
The plaintiff claims that
The ordinance constitutes an unwarranted and unlawful intrusion into areas pre-emptively regulated by the Congress of the United States, in particular with regard to the Antitrust Laws, 15 U.S.C. § 1 and following.
Taken literally, this claim is incomprehensible. Congress, through the enactment of the antitrust laws, cannot be said to have brought residential land use regulation preemptively within the federal ambit.
It becomes clear upon reading plaintiff's brief, however, that plaintiff intended to allege that the ordinance violates the antitrust laws.
The only law specifically cited is section 1 of the Sherman Act, 15 U.S.C. § 1. That section prohibits combinations in restraint of trade. In Fisher v. City of Berkeley, 475 U.S. 260, 106 S. Ct. 1045, 1047, 89 L. Ed. 2d 206 (1986), the Supreme Court held that municipal rent regulation, without an allegation of combination or conspiracy between two or more parties, does not violate section 1. As plaintiff alleges no combination and no co-conspirator, its complaint states no section 1 claim.
As for the other "Antitrust Laws," it is not sufficient simply to allege a violation of any or all of them. Notice pleading does not require much in the way of specificity but it does demand more than this. Northland Equities v. Gateway Construction Corporation, 441 F. Supp. 259, 264 (E.D. Pa. 1977).
The State Law Claims
The State of New Jersey has enacted a large number of laws regulating landlord-tenant relations. Plaintiff argues that these laws preempt the city's ordinance.
Municipalities are creatures of the state, and questions concerning the relative powers of the two levels of government are questions uniquely of state law.
Because there are no federal questions remaining in this suit, the Court is free to decline to take pendant jurisdiction over these state law claims. United Mine Workers v. Gibbs, 383 U.S. 715, 726, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966). Concerns of comity strongly militate against this Court's injecting itself into a disagreement over the allocation of power between state and local governments. State courts are the appropriate forum for this dispute. Under Gibbs, therefore, the state claims will be dismissed.
In accordance with this opinion, the complaint of plaintiff will be dismissed in its entirety.
HERBERT J. STERN, United States District Judge
DATED: December 30, 1986
This matter having been opened to the Court on the motion of defendant-intervenors to dismiss the complaint, and on the motion of the plaintiff for a preliminary injunction; and the Court having considered the submissions of the parties and having heard argument, and for the reasons set forth in the Court's opinion filed herewith;
It is on this 30, day of December, 1986,
ORDERED that plaintiff's motion for a preliminary injunction be, and it hereby is, denied; and it is further
ORDERED that the defendant-intervenors' motion to dismiss the complaint be, and it hereby is, granted.