On appeal from the Superior Court of New Jersey, Law Division, Ocean County.
Shebell and Conley. Shebell, J.A.D.
Plaintiff, Mobile Home Village, Inc., owned a 250-unit mobile home park in Jackson Township, Ocean County, called South Wind Village. As such, plaintiff became subject to the provisions of the Jackson Township Rent Control Ordinance (the Ordinance). Kurt H. and Sophie Bielefelot owned a 1972 Forrest Park mobile home located on a rented space in South Wind Village. The last surviving owner died in or about 1989, and the owner's heirs sought to sell the mobile home that was located on the rented space.
On January 19, 1990, plaintiff filed an application for a rent increase because the tenancy relationship ended upon the death of the last surviving owner. As of that date, the controlled rent for the space was $190.31 per month. The Rent Control Board of Jackson Township (Board) conducted hearings on plaintiff's application on March 9 and April 3, 1990.
At the Board hearings, plaintiff presented the testimony of a real estate appraiser. He testified that the fair market rental value of the mobile home rental space in question was $325. The appraiser also testified that the Bielefelot's mobile home was being offered for a sale price of $25,000. He opined that the value of the mobile home would be only $8,000 if plaintiff was permitted to charge the fair market value rent for the space. The Board denied the relief sought by plaintiff. The Board's denial was appealed to the Mayor and Council of Jackson Township (Township)
which also denied relief. Plaintiff filed a complaint in lieu of prerogative writs on May 8, 1990, seeking compensation as the Ordinance effected a taking of plaintiff's property.
On September 20, 1991, the matter was tried before the Law Division on the bifurcated question of liability. On October 30, 1991, Judge Rosalie B. Cooper ruled that the Ordinance did not effect a taking of plaintiff's property in violation of the United States Constitution and 42 U.S.C. § 1983. The Judge denied plaintiff's request for attorney fees under 42 U.S.C. § 1988 and ordered that the plaintiff's challenge to the Board's action be dismissed with prejudice. Plaintiff appeals from this judgment. We affirm Judge Cooper's order.
During the pendency of its appeal, plaintiff filed a motion for a stay on the basis that "the identical issue involved in this Fifth Amendment Takings claim against the absence of vacancy decontrol in the Jackson Township Mobile Home Park Rent Control Ordinance is involved in an appeal presently pending before the United States Supreme Court." On January 6, 1992, we denied this motion.
The Township and the Board moved to dismiss plaintiff's appeal after the case of Yee v. City of Escondido, 503 U.S. , 112 S. Ct. 1522, 118 L. Ed. 2d 153 (1992), was decided contrary to the position asserted by plaintiff. The plaintiff cross-moved to supplement the record or remand. After both motions were denied, the Township and the Board moved to permit the filing of a brief. Their motions were granted on July 2, 1992.
Plaintiff's primary contention in this appeal is that:
[T]he combined effect of taking away the landlord's rights to determine who will be in possession of the land, together with the artificial premium that the tenant who happens to be in possession may now obtain as a result of the fact that rents are artificially maintained at a below market level in the resale, represents a physical taking accomplished by operation of both the State Statute and Rent Control Ordinance.
N.J.S.A. 46:8C-3a provides:
No mobile home park shall deny any resident of such mobile home park the right to sell said resident's mobile home within the park or require the resident to
remove the mobile home from the park solely on the basis of the sale thereof. The park may reserve the right to approve the purchaser of said mobile home as a tenant, but such permission may not be unreasonably withheld and the park shall not exact a commission or fee with respect to the price realized by the seller unless the park owner or ...