In this action in Lieu of Prerogative Writs the plaintiffs attack the validity of provisions of the land use ordinances of the Township of Long Beach regulating what are commonly known as "group rentals".
The plaintiffs are the Ocean County Board of Realtors, a nonprofit trade association whose membership is comprised of licensed real estate brokers, and two individual brokers who are members of the association. The plaintiff Buckley is also a resident and property owner within the Township of Long Beach.
Three portions of the land use ordinances are under scrutiny. Section 18-2.17 defines the term "family" as follows:
One or more persons related by blood or marriage occupying a dwelling unit and living as a single, non-profit housekeeping unit or a collective number of individuals living together in one house, including servants, whose relationship is of a permanent and distinct domestic character and cooking as a single housekeeping unit. This definition shall not include any society, club, fraternity, sorority, association, lodge, combine, federation, group, coterie or organization.
This restriction has apparently been a part of the Long Beach ordinances since November, 1968. On January 18, 1991, the township adopted an amendment to its land use ordinances adding the following sections:
3-26. Aiding and Abetting. It shall be unlawful for any person to assist, aid or abet another in committing a violation of the Township zoning or building code ordinances.
3-27. It shall be unlawful for any person to negotiate a lease, the provisions of which will permit occupancy or use of the leased premises in violation of the zoning ordinance or building code of the Township of Long Beach.
It is alleged that the purpose of the adoption of the 1991 ordinance is to provide a method to prosecute persons, particularly real estate brokers and salespersons, who might participate in leasing property to groups who do not fit within the definition of family as quoted above. Consequently, the plaintiffs challenge both the definitional section of the zoning ordinance and the amendments relating to aiding and abetting a violation of the zoning ordinance.
The defendant asserts that this action is premature, alternatively that it is time barred and finally that recent decisions of our appellate courts enable this court to read the definition of "family" in a manner which would sustain its validity.
The timeliness issues raised by the defendant should be addressed first. The township argues that this action should not be brought until one of the members of the plaintiff association or other real estate broker or salesperson is prosecuted in municipal court for violation of the ordinance. The plaintiffs are making a direct constitutional attack and case law does not require, in such circumstances, that the challenge be preceded by a prosecution for violation of the ordinance. Our courts have entertained litigation concerning group rental ordinances without requiring prior municipal prosecution. Kirsch Holding Co. v. Borough of Manasquan, 59 N.J. 241, 281 A.2d 513 (1971); United Property Owners Ass'n. of Belmar v. Borough of Belmar, 185 N.J. Super. 163, 447 A.2d 933 (App.Div.1982), cert. denied, 91 N.J. 568, 453 A.2d 880 (1982).
Conversely, the defendant contends that this suit is time barred noting that the definition of family emanated from a 1968 ordinance. Defendant alleges that the plaintiffs did not contest the constitutionality of the definition until the 1991 ordinance relating to aiding and abetting was adopted. The defendant concludes that this action is prohibited under R. 4:69-6(a) which requires that prerogative writ suits be brought within 45 days after the accrual of the right to the review, hearing or relief sought.
Plaintiffs acknowledge that they are out of time but argue that the relaxation provision of R. 4:69-6(c) should be applied here. That rule allows the court to enlarge the 45-day time frame "where it is manifest that the interest of justice so requires." Our cases instruct that in determining whether the "interest of justice" would be served by relaxation, the decisional law should be examined since that standard was meant to incorporate exceptions carved out by earlier decisions which allowed relaxation in certain cases. Schack v. Trimble, 28 N.J. 40, 47-48, 145 A.2d 1 (1958). Those exceptions include cases involving (1) important and novel constitutional issues; (2) informal or ex parte determinations of legal questions by administrative officials; and (3) important public rather than private interests which require adjudication or clarification. Brunetti v. Borough of New Milford, 68 N.J. 576, 586, 350 A.2d 19 (1975).
This case concerns two of the exceptions. First, important considerations of due process and equal protection are implicated. The right to own and alienate property is constitutionally guaranteed. Early cases evaluating group rental ordinances found that the restraints were excessively broad and created disparity of treatment which bore no rational relationship to land use regulation or to the conduct of owners and users of property. Gabe Collins Realty, Inc. v. City of Margate, 112 N.J. Super. 341, 349, 271 A.2d 430 (App.Div.1970); Larson v. Mayor and Council of Borough of Spring Lake Heights, 99 N.J. Super. 365, 374-75,
240 A.2d 31 (Law Div.1968). As will be discussed, many subsequent decisions reached the same result. Accordingly, the court should determine whether the restrictions adopted by the township create ...