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Ocean County Board of Realtors v. Borough of Beachwood

Decided: April 2, 1991.

OCEAN COUNTY BOARD OF REALTORS, DIANE RHINE, WILLIAM BUCKLEY AND TOM LEWIS, PLAINTIFFS,
v.
BOROUGH OF BEACHWOOD, BOROUGH OF ISLAND HEIGHTS, AND TOWNSHIP OF LONG BEACH, DEFENDANTS



Serpentelli, A.j.s.c.

Serpentelli

Can municipalities condition the issuance of a certificate of occupancy for residential resales on the payment of municipal real estate taxes and water and sewer charges which are due or delinquent at the time of the application for the certificate? Ordinances adopted by the three defendant municipalities mandate those payments.

Plaintiffs charge that defendants lack authority to impose this requirement. Defendants have moved for summary judgment. The court has treated plaintiffs' opposition to the motions as a cross-motion for summary judgment since there is no dispute concerning material issues of fact.

In 1983, Long Beach Township adopted Ordinance 83-7C which directs that a certificate of occupancy must be obtained before title to any existing residential or commercial property is transferred. The next year, Long Beach Township amended the ordinance to provide:

No zoning permit, building permit or certificate of occupancy shall be issued unless application for the same is accompanied by a certification from the Township Tax Collector that no taxes or assessments for local improvements are due or delinquent on the property which is the subject of the application. [Ord. 84-1C]

In 1989, Long Beach Township adopted Ordinance 1989-9C which it believes gives the municipality the authority to require the payment of due or delinquent water and sewer charges before a certificate of occupancy is issued for a resale of any existing structure. While the ordinance does not expressly so provide, the court will assume for the purposes of a complete disposition of this matter that the ordinance is meant to accomplish that result.

Island Heights and Beachwood have adopted ordinances which have been implemented in the same manner as Long Beach Township. The Island Heights and Beachwood ordinances facially govern only structures used for businesses operating under a permit. They were apparently enacted pursuant to authority delegated by N.J.S.A. 40:52-1.2. However, counsel for both municipalities have stipulated that their ordinances also have been applied to residential sales essentially in the same manner as Long Beach Township. Again, in the interest of judicial efficiency, the court will assume that the ordinances accomplish that result.

Plaintiffs are the Ocean County Board of Realtors, a nonprofit corporation comprised of licensed real estate brokers, as well as three individual brokers, one of whom resides in Long Beach Township. The brokers allege that they are actively engaged in listing and selling property throughout Ocean County. They assert that defendants' ordinances have improperly impacted their businesses. Specifically, they claim that in certain instances they have had to advance their own funds to secure a

certificate of occupancy before closing since the seller was unable to pay taxes, water or sewer charges. On the merits, plaintiffs contend that the challenged ordinances are preempted by Titles 54 and 40 of the New Jersey statutes which they insist comprehensively regulate the assessment and collection of real estate taxes and water and sewer charges throughout the State.

All defendants' motions for summary judgment rest on three grounds. First, they argue that plaintiffs have no standing. Second, they contend that this action is time barred by R. 4:69-6(a). Finally, they claim that the ordinances in question are legitimate exercises of the municipal police power. Beachwood has also raised the defense of ripeness.

I.

Standing.

New Jersey courts traditionally have taken a liberal approach to the issue of standing. Generally, plaintiff need only show a sufficient stake in the outcome of the proceeding and a position which is adverse to defendant. Home Builders League of So. Jersey, Inc. v. Tp. of Berlin, 81 N.J. 127, 132, 405 A.2d 381 (1979). Our courts will not render advisory opinions or function in the abstract, New Jersey Turnpike Authority v. Parsons, 3 N.J. 235, 240, 69 A.2d 875 (1949), nor will they entertain suits by strangers to the dispute. Bergen County v. Port of New York Authority, et al., 32 N.J. 303, 307, 318, 160 A.2d 811 (1960). However, the courts will give "due weight to the interests of individual justice, along with the public interest, always bearing in mind that throughout our law we have been sweepingly rejecting procedural frustrations in favor of 'just and expeditious determinations on the ultimate merits.'" Crescent Park Tenants Assoc. v. Realty Equities Corp. of N.Y., 58 N.J. 98, 107-108, 275 A.2d 433 (1971).

Our cases also have discarded the concept that plaintiff must be able to show that some injury has been suffered in order to

maintain standing. Rather, it is sufficient to show a substantial likelihood of harm. Home Builders League of So. Jersey, Inc., supra, 81 N.J. at 134, 405 A.2d 381. Thus, plaintiffs need not show any one particular occurrence of harm and for that reason, Beachwood's contention that this action is not ripe for adjudication must fail.

In keeping with these principles, the Supreme Court in Crescent Park noted the increasing trend to permit nonprofit associations to litigate issues of public interest even though the harm involved may technically not be attributable to the association but rather to its constituents. Crescent Park, supra, 58 N.J. at 105-106, 275 A.2d 433. Furthermore, where a substantial public interest is involved the courts have found that a slight private interest, when added to and harmonized with the public interest, is sufficient to give standing. Home Builders League of ...


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