This is an appeal from a conviction in the Upper Deerfield Township Municipal Court. The violation was of municipal
ordinance $50-7 of the Township Code which requires a certificate of occupancy prior to the sale of an existing structure. This court gave notice to the Attorney General pursuant to R. 4:28-4 who did not see fit to intercede.
Appellant, Seabrook Housing Corporation (hereinafter called Seabrook) owned real property located in Upper Deerfield, Cumberland County. The property was transferred by deed on November 15, 1989. The property had been boarded up for a considerable time prior to the transfer and was admittedly non-inhabitable. This property has been vacant for 15 years and according to the testimony was not suitable nor intended for habitation. Inspection was not conducted prior to the sale by the township housing officer and no certificate of occupancy was issued. After the hearing, Seabrook was fined $100, $25 court costs and was mandated to comply with the order within two weeks from the date of conviction. Appeal was taken and judgment was stayed.
The defendant contests the validity of the ordinance.
The burden of establishing the invalidity of the zoning ordinance is upon the person attacking it. Vickers v. Twp. Comm. of Gloucester, 37 N.J. 232, 181 A.2d 129 (1962), cert. den. 371 U.S. 233, 83 S. Ct. 326, 9 L. Ed. 2d 495 (1963). The burden is to show affirmatively that the ordinance bears no reasonable relationship to the public health, morals, safety or welfare.
A zoning ordinance is insulated from attack by a presumption of validity, which may be overcome by a showing that the ordinance is "clearly arbitrary, capricious or unreasonable, and plainly contrary to fundamental principles of zoning or the (zoning) statute." Bow & Arrow Manor v. Town of West Orange, 63 N.J. 335, 343, 307 A.2d 563 (1973). Accord Zilinsky v. Zoning Bd. of Adjustment of Verona, 105 N.J. 363, 368, 521 A.2d 841 (1987); Taxpayers Ass'n of Weymouth Township, Inc. v. Weymouth Township, 80 N.J. 6, 20, 364 A.2d 1016 (1976).
The statutes upon which the ordinance is based are N.J.S.A. 40:48-2 and N.J.S.A. 40:48-2.12a and read as follows:
Any municipality may make, amend, repeal and enforce such other ordinances, regulations, rules and by-laws not contrary to the laws of this State, or of the United States, as it may deem necessary and proper for the good government order and protection of persons and property and for the preservation of the public health, safety and welfare of the municipality and its inhabitants, and as may be ...