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United Property Owners Association of Belmar v. Borough of Belmar

July 16, 2001

UNITED PROPERTY OWNERS ASSOCIATION OF BELMAR, NICHOLAS ZAMPETTI, LAURA GIFFORD AND JOHN ROLAND, PLAINTIFFS-APPELLANTS,
v.
BOROUGH OF BELMAR, KENNETH PRINGLE, MAYOR OF THE BOROUGH OF BELMAR, JACK MANUTTI, PATRICIA PROVENZANO, ANDREW GALLAGHER AND DOUG MCGILL, COUNCIL MEMBERS OF THE BOROUGH OF BELMAR, DEFENDANTS-RESPONDENTS.
UNITED PROPERTY OWNERS ASSOCIATION OF BELMAR, NICHOLAS ZAMPETTI, LAURA GIFFORD AND JOHN ROLAND, PLAINTIFFS-RESPONDENTS,
v.
BOROUGH OF BELMAR, KENNETH PRINGLE, MAYOR OF THE BOROUGH OF BELMAR, JACK MANUTTI, PATRICIA PROVENZANO, ANDREW GALLAGHER AND DOUG MCGILL, COUNCIL MEMBERS OF THE BOROUGH OF BELMAR, DEFENDANTS-APPELLANTS.
NICHOLAS M. ZAMPETTI, JR. AND MARIANN ZAMPETTI, PLAINTIFFS-APPELLANTS,
v.
BOROUGH OF BELMAR, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Monmouth County, L-5348-98 and L-4102-98-03.

Judges Carchman, Lintner and Parrillo.

The opinion of the court was delivered by: Carchman, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

As amended September 6, 2001

Argued May 23, 2001

These three appeals require us to determine the validity of a comprehensive local ordinance governing summer rentals at a shore community. Plaintiffs United Property Owners Association of Belmar, an association of approximately eighty property owners in Belmar, and three of its constituent members Nicholas Zampetti, Laura Gifford and John Roland (collectively plaintiffs), brought an action against the Borough of Belmar, Kenneth Pringle, Mayor of Belmar, and Jack Manutti, Patricia Provenzano, Andrew Gallagher and Doug McGill, all members of the Borough Council (collectively "defendants" or "Belmar") seeking to invalidate the Belmar Ordinance 1999-16 (the Ordinance). After an extended trial, the judge voided certain sections of the Ordinance and upheld others. Plaintiffs appeal, and defendants cross-appeal.

Plaintiffs contend on appeal that the judge erred in failing to invalidate the Ordinance provisions that: (1) limit occupancy for summer rentals only; (2) impose more restrictive fire regulations than required; (3) impose liability for occupancy violations on all tenants; (4) increase licensing fees; (5) prohibit exceeding the occupancy rate at night; and (6) restrict noise. Plaintiffs also claim selective enforcement; assert that the Ordinance constituted a taking or inverse condemnation; object to the judge's failure to invalidate the entire Ordinance instead of selected provisions; and contend that their attorneys' fee, awarded under the Federal Fair Housing Act, Title VIII of the Civil Rights Act of 1968, as amended by the Fair Housing Amendments Act of 1988, 42 U.S.C.A. §§ 3601-3631 (the Act) was inadequate.

Defendants on their cross-appeal contend that the judge erred in invalidating those sections of the Ordinance that: (1) require that when a unit is rented to a family with a school-aged child over the winter, the summer rental cannot begin until the end of the spring term of the school year; (2) compel the submission of information regarding tenants on applications for certification; (3) prohibit temporary certifications; (4) proscribe the use of flammable materials as partitions; and (5) prohibit commercial signs and strings of lights.

The trial judge, in a well-reasoned and thoughtful written opinion, upheld the validity of the Ordinance, including a prohibition on the presence of the number of occupants during certain hours, but determined that certain provisions were invalid. We conclude that the trial judge correctly determined the Ordinance was constitutional, was not selectively enforced, properly imposed liability on all tenants for occupancy violations, did not constitute a taking, did not impose punitive fees, and did violate the Act. We further conclude that the judge's award of attorney's fees pursuant to the Act was not inadequate.

We determine, however, that the judge erred in declaring certain provisions of the Ordinance invalid, including the portions of the Ordinance that prohibit: (1) temporary certificates of inspection for summer rentals; (2) the use of flammable materials as partitions; and (3) commercial signs and strings of lights on summer rentals.

A companion appeal (A-40-00T5) filed on behalf of plaintiffs Nicholas M. Zampetti, Jr. and Mariann Zampetti (Zampettis) against defendant Borough of Belmar challenges the imposition of a bond on landlords for multiple convictions of tenants for disorderly conduct, as well as the factual determination as to the necessity of a bond (the Zampetti appeal). Since we address the issue of a bond in the context of plaintiffs' omnibus challenge to the validity of the Ordinance, we consolidate the appeals for purposes of this opinion and determine the Zampetti appeal here as well. We conclude that the bond requirement is valid and affirm the judgment upholding the validity of that provision.

I.

The genesis of the Ordinance is set forth in the legislative findings incorporated in the Ordinance. According to these findings, Belmar is a one-square-mile resort community with a year-round population of approximately 6,000 residents, which experiences an enormous influx of visitors each summer, many of whom seek to rent temporary accommodations while continuing to maintain a permanent residence elsewhere. As of the summer of 1998, Belmar had approximately 550 of such rental units that met the definition set forth in N.J.S.A. 40:52-1(n).*fn1

The legislative findings continue that, because of a great demand for seasonal rentals, they are frequently overcrowded, resulting in unsafe conditions including occupants sleeping in basements, blocking of doors as well as intentionally disabled smoke alarms, construction of partitions made of flammable materials, and "stockpil[ing of] garbage in basements and closets."

The findings conclude that "[s]easonal rental accommodations in Belmar are also frequently detrimental to the health, safety, welfare and quality of life of other nearby residents and visitors." Problems include "excessive noise, unruly behavior, obscene language, fighting, littering, parking of vehicles on lawns, public urination, poor maintenance of the property and grounds, and violation of trash collection ordinances." Belmar Ordinance 1999-16, § 26-7.1E.

After extolling the progress of Belmar in recent years, Mayor Pringle announced the proposed Ordinance in September 1998, commenting that "[t]he only dark cloud on Belmar's horizon is our 560 summer rentals" which have a negative "impact on our property values, our taxes, our school system and our quality of life." Much of Pringle's commentary was based on anecdotal information, but clearly the issue of summer rentals had been the topic of debate and notice for years in the Belmar community. He acknowledged the general problem of unruly behavior, obscene language, public urination and ongoing chronic problems of tenants living with beds on floors, in basements, in makeshift lofts, and "mattresses spread from one end of the room to another."

Pringle's observations and perceptions were supported by substantive information including data presented by the zoning officer describing nine people sleeping in a seventy square foot room in three layers of stacked plywood, fourteen people living in a house with an occupancy limit of four, and a general conclusion that eight out of every ten summer rentals were overcrowded. Others described cars parked on lawns, people sleeping in cars, bottles and other debris littering rental properties and people "totally out of control."

Plaintiffs challenged these observations claiming that the Borough was "heavy-handed" and trying to "beat the property owners" out of the summer rental business. Plaintiffs also claimed that year-round rentals received more favorable treatment than summer rentals, and asserted "selective enforcement" of relevant codes and ordinances.

Plaintiffs filed a complaint in the Law Division challenging then Belmar Ordinance 1998-16 (Sept. 9, 1998), as being so pervasively restrictive that it denied plaintiffs the right to use their properties as seasonal rentals. Plaintiffs' complaint included allegations that: (1) different regulations applicable to short-term and long-term rentals violated equal protection; (2) the fees imposed were excessive; and (3) regulation based on occupancy of school-aged children violated the Act.

Following the issuance of injunctive relief enjoining enforcement of that ordinance pending final disposition and, in response to this litigation, Belmar promulgated the Ordinance which amended Ordinance 1998-16 and which is the subject of this appeal.

II.

In considering the positions of the parties, certain bedrock principles of appellate review apply. The trial judge's findings of fact "are considered binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty v. Township Comm. of Manalapan, 140 N.J. 366, 378 (1995).

With these considerations in mind, we now address plaintiffs' specific claims. Plaintiffs contend that the judge erred in failing to find that the occupancy limitation of Ordinance section 26-7.4 discriminates against summer rentals in violation of the equal protection guarantees of the United States and New Jersey Constitutions. Plaintiffs object to defendants' application of the occupancy restriction to summer rentals only and assert that the occupancy restriction has no rational relation to the Borough's problems, because defendants failed to prove that overcrowding or other problems emanate from summer rentals. Plaintiffs also argue that defendants incorrectly calculated occupancy by allowing only bedrooms to be used for sleeping.

Defendants counter that their method of calculation was correct, that they applied the occupancy restriction to all properties, and that the Ordinance was rationally related to protecting the welfare of summer tenants and the community.

Ordinance section 26-7.4(a) provides: "Each Summer Rental License shall state thereon the maximum permitted occupancy of the dwelling unit as calculated by the Code Official pursuant to and in accordance with PM-405." PM-405 refers to The BOCA (Building Officials & Code Administrators International, Inc.) National Property Maintenance Code (4th ed. 1993) (BOCA Code). The BOCA Code sets forth the minimum area required for a dwelling unit's living room, dining room, and kitchen, depending on the number of occupants. PM-405.5. The BOCA Code also provides:

PM-405.3 Area for sleeping purposes: Every room occupied for sleeping purposes by one occupant shall contain at least 70 square feet (70 m2) of floor area, and every room occupied for sleeping purposes by more than one person shall contain at least 50 square feet (50 m2) of floor area for each occupant thereof.

PM-405.7 Prohibited occupancy: Kitchens, non-habitable spaces and interior public areas shall not be occupied for sleeping purposes.

Both the zoning officer and the fire official interpreted the phrase "interior public areas" in PM-405.7, as including living rooms. The judge noted but did not address plaintiffs' argument that defendants "misinterpreted the BOCA Code by determining the 'maximum occupancy' strictly by measuring bedrooms." The judge determined only that Ordinance section 26-7.4(a) was consistent with the BOCA Code.

Plaintiffs contend that defendants' calculation of occupancy by using solely bedroom space "gives short shrift to the rest of the dwelling and unjustifiably limits the number of occupants at the unit." Plaintiffs argue that the reference in PM-405.3 to rooms "occupied for sleeping purposes," rather than bedrooms, implies that non-bedrooms could be used for sleeping purposes. They point out that the BOCA Code defines "habitable space" as "[s]pace in a structure for living, sleeping, eating or cooking," PM-402.1, and they conclude that living rooms may be used for sleeping provided they meet the square footage requirements of PM-405.3.

We reject plaintiffs' interpretation that all "habitable space" except kitchens could be used for sleeping. Such an expansive view would render the prohibition against using interior public areas for sleeping, set forth in PM-405.7, meaningless. While plaintiffs contest defendants' interpretation, they fail to offer any other reasonable meaning of "interior public areas," or to cite any authority for their interpretation of PM-405. We cannot accept plaintiffs' crabbed view of "occupied for sleeping purposes" other than the well- understood common parlance of "bedrooms." We conclude, as did the trial judge, that defendants' interpretation that "interior public areas" includes living rooms is reasonable and consistent with a logical reading of the ordinance.

Plaintiffs further claim that defendants apply PM-405 to determine occupancy for summer rentals, but not for year-round housing, in violation of plaintiffs' right to equal protection. According to plaintiffs, it is not disputed that the "Ordinance is aimed at curbing the summer rental market." Plaintiffs cite the legislative findings sections of the Ordinance, 26-7.1, -11.1, which specifically address summer rentals. Plaintiffs suggests that PM-405 should apply to all properties. They note that PM-401.1, "Scope," provides that chapter four "shall govern the minimum conditions and standards for . . . space for the occupancy of a structure"; there is no limitation to structures that are rented seasonally.

The Ordinance, however, does require the application of PM- 405 to all buildings. It imposes a penalty for any violation of the BOCA Code, Ordinance § 26-2.8a, and establishes a fine for occupancy violations under PM-405, without any limitation to summer rentals, Ordinance § 26-2.8b. Despite its legislative findings targeting summer rentals, the occupancy provision of the Ordinance on its face is universal and does not discriminate against summer rentals. In fact, the zoning officer observed that he applied the BOCA Code to all properties, not just summer rentals. He said: "I cover the whole Property Maintenance Code with respect to all the properties in Belmar" including all rentals, summer, winter and year-round. On the other hand, Pringle conceded that occupancy standards were not imposed on full-time properties, explaining that "we have our biggest problems" with summer rentals. Despite this apparent factual variance, even if defendants applied the BOCA Code occupancy standards only or primarily to summer rentals, we find no violation of plaintiffs' equal protection rights, and our consideration of both the Federal and State Constitutions supports this conclusion.

The Fourteenth Amendment provides: "No State shall . . . deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. An economic regulation such as the Ordinance, which "does not affect a suspect or semi-suspect class and does not attempt to regulate a fundamental right, . . . need [only be] rationally related to a legitimate state interest to satisfy federal equal protection requirements." Brown v. City of Newark, 113 N.J. 565, 573 (1989). An economic regulation must not be "arbitrary, capricious, or unreasonable." Id. at 572. Plaintiffs concede that the rational basis standard applies.

The New Jersey Constitution does not use the term "equal protection," but states: "All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness." N.J. Const. art. I, ¶ 1.

"The analysis of fundamental rights under the New Jersey Constitution differs from analysis of those rights under the United States Constitution." Greenberg v. Kimmelman, 99 N.J. 552, 567 (1985). Our analysis of this issue requires application of a balancing test, considering "the nature of the affected right, the extent to which the governmental restriction intrudes upon it, and the public need for the restriction." Ibid. "In striking the balance . . . . the more personal the right, the greater the public need must be to justify governmental interference with the exercise of that right." George Harms Constr. Co. v. New Jersey Tpk. Auth., 137 N.J. 8, 29 (1994). In addition, the factors to be balanced are "implicit, if not explicit, in federal analysis of the due process and equal protection clauses." Greenberg, supra, 99 N.J. at 567.

An ordinance is entitled to a presumption of validity. Dome Realty, Inc. v. City of Paterson, 83 N.J. 212, 235 (1980). In Dome Realty, the Court held that the exemption of owner-occupied, two-family homes from the requirements of an ordinance establishing standards of habitability did not violate federal equal protection. Id. at 243. The Court found a rational basis in the exemption because "[l]andlords who live in their buildings have greater incentive to maintain them." Ibid. The city thus acted both rationally and efficiently in conserving "its enforcement resources for larger buildings with absentee landlords." Ibid.

We conclude that directing enforcement of occupancy standards toward summer rentals, if that occurred, is rationally related to the legitimate governmental interest of abating the overcrowding and resulting unacceptable conduct and conditions that occur in summer rentals. Contrary to plaintiffs' arguments, the judge's finding, and the underpinning of his equal protection analysis that these problems emanated from summer rentals, was supported by ample credible evidence. Rova Farms, supra, 65 N.J. at 484. The judge quoted the legislative findings of the Ordinance, cited the supporting testimony of the Mayor and Council members, and concluded that their testimony "was believable and generally supported the Borough's reasoning behind the Ordinance. The inescapable conclusion based on the testimony is that some summer renters create a significant problem for the law-abiding citizens of Belmar."

There was considerable persuasive evidence to support the finding that overcrowding, unsafe conditions, noise and unruly behavior in Belmar emanated from summer rentals. Although anecdotal, Pringle personally heard noise and observed rowdy behavior at summer rentals, and reported complaints about summer tenants using obscene language and urinating in public. Council members corroborated reports of drinking, noise, and bad behavior among summer renters. Borough officials reported overcrowding in summer rentals and the resulting unsafe conditions, both from personal observations and from complaints.

Plaintiffs point to the absence of empirical data to support the conclusion that summer rentals caused Belmar's problems. However, formal studies conducted by experts are not required. "Legislative bodies are presumed to act on the basis of adequate factual support and, absent a sufficient showing to the contrary, it will be assumed that their enactments rest upon some rational basis within their knowledge and experience." Hutton Park Gardens v. Town Council of West Orange, 68 N.J. 543, 564-65 (1975) (upholding a rent control ordinance) (quoted in Dome Realty, supra, 83 N.J. at 235). More recently, we explained: "A municipality's legislative exercise is not to be set aside if any basis may reasonably be conceived to justify the ordinance." Mannie's Cigarette Serv., Inc. v. Town of West New York, 259 N.J. Super. 343, 347-48 (App. Div. 1992).

Witnesses who observed overcrowding and unacceptable behavior at summer rentals, and who, in their capacity as municipal officials, received complaints from residents, provided an adequate basis for the judge's factual finding. Their observations constituted a rational basis, within defendants' knowledge and experience, to justify the Ordinance. Editorial comments noted by plaintiffs regarding a distaste for summer rentals are irrelevant to our analysis and will not invalidate an otherwise valid ordinance. Conversely, demonizing the proponents of the legislative action as "evil" is not persuasive in a facial attack on the Ordinance.

Finally, we reject plaintiffs' contention that a small number of occupancy violation summonses issued in the summers of 1997 and 1998 proved that overcrowding did not exist. Pringle explained that

the problem with chronic overcrowding in Belmar, isn't how many summonses we give out. The problem is you don't get to give summonses out. . . . I'm not looking to give out more summonses for overcrowding.

But the number of summonses that we're giving out is a small percentage of the number of problems we have.

As the trial judge aptly noted, the Court in Kirsch Holding Co. v. Borough of Manasquan, 59 N.J. 241 (1971), in invalidating zoning ordinances in the Boroughs of Belmar and Manasquan which prohibited group rentals, acknowledged the same problems in Belmar that the Ordinance here addresses:

The evil which the ordinance provisions in question seek to prevent relates to the uninhibited social conduct of many such group rental occupants within and without the buildings. Unquestionably, and regrettably, excessive noise at all hours, wild parties, intoxication, acts of immorality, lewd and lascivious conduct and traffic and parking congestion often accompany these group rentals . . . . In essence, they constitute a public and private nuisance by not meeting the minimal standards of expected social conduct even in this rather permissive day and age. [Id. at 245.]

To address overcrowding and its resulting problems, the Court suggested "housing code provisions, which would have to be of general application, limiting the number of occupants in reasonable relation to available sleeping and bathroom facilities or requiring a minimum amount of habitable floor area per occupant." Id. at 254.

Our Supreme Court has subsequently approved municipalities' addressing overcrowding in this way, rather than by indirect means. Borough of Glassboro v. Vallorosi, 117 N.J. 421, 428, 432-33 (1990) (noting that college students sharing a home qualified as a family unit under municipal ordinance); State v. Baker, 81 N.J. 99, 110, 114 (1979) (observing that municipality may not condition residence on the number of unrelated persons living together).

In Sente v. Mayor of City of Clifton, 123 N.J. Super. 274 (App. Div. 1973), vacated as moot, 66 N.J. 204, 209 (1974), we upheld an ordinance establishing minimum floor space requirements for housing, commenting:

[H]ousing space limitations present fundamental policy decisions for determination by municipal governing units. Health regulations are of the utmost consequence to the general welfare, and if they are reasonable, impartial and not against the general policy of the State, they must be submitted to by individuals for the good of the public, irrespective of pecuniary loss. The record, as well as common sense, affirms the existence of a correlation between minimum dwelling space requirements and health. [Id. at 279 (citation omitted).]

This is what defendants have done here. The Ordinance limits the number of occupants in relation to the available sleeping facilities and the amount of floor space, in accordance with the BOCA Code.

Defendants demonstrated that overcrowding and its accompanying problems occur predominantly in summer rentals. Directing enforcement of the Ordinance's occupancy restrictions toward summer rentals is rationally related to the legitimate public interest of abating these problems sufficient to withstand a federal constitutional challenge.

Applying the balancing test analyses under Article I, Paragraph 1 of the New Jersey Constitution, the affected right is that of property owners to maximize their profits by renting to more tenants for the summer. The Ordinance intrudes upon this right by impacting upon the owners' profits. The counterbalance is the strong public need to alleviate summer overcrowding and its resulting conditions, which are unsafe to inhabitants and "detrimental to the health, safety, welfare and quality of life of other nearby residents and visitors." Ordinance section 26- 7.1E. Plaintiffs' asserted right is economic, not personal; however, the public need is substantial. We find no constitutional basis for setting aside the occupancy limitation provisions of the Ordinance.

III.

Plaintiffs next assert that the judge erred in failing to void portions of the Ordinance's fire restrictions, which are more stringent for summer rentals than for other properties; they argue that these provisions violate equal protection principles and contradict the Uniform Fire Code, N.J.A.C. 5:70 (UFC). Defendants counter that the fire safety regulations of the Ordinance are reasonably related to the protection of summer residences and the entire community, and are not preempted by state regulation.

The provision in issue, Ordinance section 26-7.6, "Fire Prevention Regulations Applicable to Summer Rental Licensed Premises": (a) prohibits locks on bedroom doors designed to be locked from outside the room; (b) requires smoke detectors to be in working order at all times; and (c) prohibits "beds, mattresses, futons or sleeping bags" in any location other than a bedroom, and prohibits the use of "curtains, sheets, cardboard or any other material of any kind" as "temporary partitions between beds or sleeping areas." Ordinance § 26-7.6a-c.

Subsection d sets forth several requirements for summer rentals with a permitted occupancy of eight or more persons, including: (1) an approved smoke detection system; (2) a fire escape, in addition to another means of egress, for structures with bedrooms on a third floor or higher; (3) self-closing doors that open into passageways "at grade or exit stair"; and (4) corridor doors that are at least one and three-eighths inches solid-core wood or an approved equivalent. Ordinance § 26-7.6d.

The judge determined that the UFC did not preempt more restrictive requirements. Applying the rational basis test for equal protection, because the provisions in question did not target any fundamental right or suspect class, the judge held that they were "presumably valid." However, the judge ruled that subsection c was "too broad." He reasoned that sleeping should be allowed in an area that was not a bedroom, so long as the area was habitable and satisfied the other BOCA requirements. Plaintiffs do not contest this aspect of the judge's ruling, but defendants object to the invalidation of the second sentence of subsection c, prohibiting the use of flammable materials as partitions, which the judge did not address.*fn2

One of the provisions which plaintiffs contend that the judge ignored is the Uniform Fire Safety Act, N.J.S.A. 52:27D- 213a (UFSA). It provides: "This act shall not be construed as authorizing the adoption of . . . an ordinance requiring that a building conforming in all respects to the requirements of the 'State Uniform Construction Code Act' [N.J.S.A. 52:27D-119 to - 140] be made to conform to more restrictive requirements." Plaintiffs complain that Ordinance section 26-7.6d violates this provision by requiring new smoke detection systems, when the old systems met the requirements of the Uniform Construction Code and UFC applicable when they were installed.

The Ordinance requires smoke detectors to comply with NFPA (National Fire Protection Association Code) section 70-93. Ordinance § 26-7.6d.1. The Uniform Construction Code, N.J.A.C. 5:23-1.1 to 5.23-12A.6, adopts Chapter 9, "Fire Protection Systems," of the BOCA National Building Code (13th ed. 1996), as part of its fire protection subcode. The BOCA National Building Code section 920.1 requires smoke detectors to be installed in accordance with NFPA section 72. The UFC, N.J.A.C. 5:70-4.19(c), provides that smoke detectors "shall be listed in accordance with ANSI/UL 217, incorporated herein by reference."

Plaintiffs failed to demonstrate that the requirement set forth in the Ordinance is more restrictive than the requirement set forth in either the BOCA National Building Code or the UFC. Nor have they shown that any smoke detector in any summer rental conformed to any regulation in effect when it was installed. Moreover, contrary to plaintiffs' argument, the judge correctly observed that an ordinance may impose more stringent fire safety standards than the UFC. The UFSA provides: "Nothing in this act shall preclude the right of any municipality to adopt an ordinance dealing with fire safety whether or not it is more restrictive than this act and the regulations promulgated thereunder." N.J.S.A. 52:27D-202b.

The UFC allows local governments to regulate the repair, use and maintenance of buildings. N.J.A.C. 5:70-1.4(c). This section provides:

When any provision of this Code is found to be in conflict with any zoning, safety, health or other applicable . . . ordinance . . . of the jurisdiction existing on the effective date of this Code or hereafter adopted, the provision which establishes the higher standard for the promotion and protection of the safety and welfare of the public shall prevail. [Id.]

Plaintiff's claim that the fire-safety standard contained in the Ordinance is invalid because it is more stringent than a standard set forth in the UFC is not only erroneous, it conflicts with the plain language of the administrative code.

The fire protections set forth in Ordinance section 26-7.6 do not violate equal protection because they are rationally related to the legitimate government interest of containing the fire hazard caused by summer overcrowding. See Brown, supra, 113 N.J. at 573. Plaintiffs complain about the expense resulting from these more stringent fire regulations, but the financial impingement on them pales in comparison to the need for public fire safety. See Greenberg, supra, 99 N.J. at 567.

Plaintiffs focus on other seemingly unrelated conduct by defendants to support their fire protection claim. Arguing that such action constitutes discrimination, plaintiffs contend that "Belmar prepared a flier to send out to former renters to weed out 'undesirables.'" The flier stated: "Welcome to Belmar . . . WARNING! SUMMER RENTAL OCCUPANCY LIMITS STRICTLY ENFORCED." It admonished renters to learn the occupancy limit of their units, advised that it was unlawful to exceed the limit between 1:30 a.m. and 8:30 a.m., and warned that fines would be imposed for violations.

Plaintiffs apparently view this alleged discrimination against summer rentals as another violation of equal protection, supporting their theory that the imposition of stricter fire regulations was discriminatory.

While alluding to instances of decreased interest in summer rentals by those reading the flier, plaintiffs failed to provide any evidential basis for an inference that the purpose of the flier was to discourage "undesirables." Making prospective tenants aware of new regulations is not unconstitutional; moreover, there is no constitutional prohibition against controlling dangerous conditions, such as overcrowding, and unruly behavior, such as drinking, cursing and urinating in public. "Undesirables" who create these conditions and indulge in this behavior are not a protected class. The imposition of more stringent fire restrictions on summer rentals did not violate either equal protection principles or the UFC.

IV.

We likewise easily dispose of plaintiffs' next contention that the judge erred in rejecting their claim of selective enforcement of the Ordinance, again allegedly in violation of plaintiffs' right to equal protection. They essentially claim that summer landlords were subject to arbitrary enforcement inconsistent with the enforcement of such ordinances as applied to year-round properties.

Two elements must be established to succeed on a claim of unconstitutional enforcement of an ordinance — "a discriminatory effect and a motivating discriminatory purpose." Township of Pennsauken v. Schad, 160 N.J. 156, 183 (1999); State v. Di Frisco, 118 N.J. 253, 266 (1990). As the Court observed in Schad:

In order to establish unconstitutional enforcement of the ordinance, defendant must show both a discriminatory effect and a motivating discriminatory purpose. [Wayte v. United States, 470 U.S. 598, 608, 105 S. Ct. 1524, 1531, 84 L. Ed. 2d 547, 556 (1985).] The conscious exercise of some selectivity in enforcement is not a constitutional violation unless the decision to prosecute is based upon an unjustifiable standard such as race, religion, or other arbitrary classification. [Schad, supra, 160 N.J. at 183 (citation omitted).]

The judge found that "Belmar's officials" were not "evil men and women bent on eliminating summer rentals through any means. . . . They were decent people trying to deal with a problem that has historically plagued Belmar."

The judge agreed with plaintiffs that

violations of ordinances by non-summer rental properties . . . have not been as vigorously enforced. However, the building department in Belmar is certainly not over staffed and their priority has been directed toward the problems created from May to September. Perhaps, the Belmar officials could have acted more even-handed in dealing with other municipal problems, but the plaintiffs have not demonstrated that Belmar used an "unjustifiable standard" in enforcing various Ordinance provisions against summer renters.

The basis for the inconsistent enforcement – summer rentals as opposed to year-round residents – was justified. As the judge found, summer rentals caused overcrowding and resulting hazards. Directing enforcement of the Ordinance "toward the problems created from May to September" was not an arbitrary or unjustifiable standard; it was reasonably related to the legitimate government objective of abating the unsafe and undesirable conditions caused by overcrowding.

We find no merit in plaintiffs' claims that Belmar's officials demonstrated favoritism or arbitrariness. The anecdotal references to enforcement regarding certain properties falls far short of establishing a pattern of discrimination. The plaintiffs failed to meet their burden to establish selective enforcement.

V.

We also reject plaintiffs' claim that the Ordinance is unconstitutional on substantive due process grounds. Plaintiffs contend that the judge erred in refusing to invalidate Ordinance section 26-2.8, which imposes liability for occupancy violations on all tenants.

Ordinance section 26-2.8b provides:

All tenants of a dwelling unit at the time the occupancy thereof unlawfully exceeds the maximum permitted occupancy thereof as calculated by the Code Official pursuant to Section PM-405.0 Occupancy Limitations shall be issued a summons which carries a minimum fine of two hundred and sixty-five ($265.00) dollars, plus court costs, payable through the Violations Bureau of the Municipal Court.

The judge, relying on State v. Kiejdan, 181 N.J. Super. 254 (App. Div. 1981), determined that Ordinance section 26-2.8 was constitutional because "strict liability is a permissible tool for a municipal ordinance that is attempting to deal with a serious health and safety problem." He explained that the strict liability provision "was appropriate due to the well documented problems associated with overcrowding."

In Kiejdan, a landlord was convicted of failing to provide heat to tenants despite his claim that the heating system had been repeatedly vandalized. We held that strict liability was "an unexceptionable and appropriate legislative option where employed to implement a regulatory scheme designed to deal with a serious social problem." Id. at 258. We considered the landlord's obligation to furnish heat as "a regulatory scheme intended to protect and advance the public health and safety," and the imposition of strict liability as "a necessary tool for the effectuation of its public purpose." Ibid. We rejected defendant's claim that strict liability violated his right to substantive due process, noting that he could have, but failed to take action to prevent a recurrence of vandalism. Id. at 260.

Plaintiffs distinguish Kiejdan, suggesting that "it was well established in [Kiejdan] that the failure to provide heat posed a threat to the health and safety of the tenants," whereas "[i]n the instant case no serious social problem exists." As did the trial judge, we disagree. The record clearly supported a finding of overcrowding and the problems attendant to such condition.

Generally, unless fundamental rights are involved, "a state statute does not violate substantive due process if the statute reasonably relates to a legitimate legislative purpose and is not arbitrary or discriminatory." Greenberg, supra, 99 N.J. at 563. Interpreting substantive due process rights under the Fourteenth Amendment, our Supreme Court set forth a more stringent standard: "substantive due process is reserved for the most egregious governmental abuses against liberty or property rights." Rivkin v. Dover Township Rent Leveling Bd., 143 N.J. 352, 366, 368, cert. denied, 519 U.S. 911, 117 S. Ct. 275, 136 L. Ed. 2d 198 (1996) (noting that bias of member of rent leveling board did not result in violation of substantive due process).

We do not perceive that holding tenants liable for occupancy violations is an egregious abuse against liberty or property rights. Imposing liability on all tenants for occupancy violations is not arbitrary or discriminatory and advances the legitimate purpose of alleviating overcrowding and its resulting problems. The realities of the tenancies must be recognized. The complaints fostering the promulgation of the challenged Ordinance are premised on summer congregants sharing the common benefits of the rental; imposing liability for the misdeeds of fellow tenants is an acceptable burden to be assumed by all.

Contrary to plaintiffs' assertion that Ordinance section 26-2.8 interferes with their "fundamental right of privacy," the Ordinance carefully protects the privacy of occupants and owners. Critical procedural safeguards are in place. The Ordinance requires the code official to attempt to locate the owner or person in control of the building to request entry. Ordinance § 26-2.1a. If the request is denied, the code official must obtain a search warrant. Ordinance § 26-2.1a, c. No municipal official may enter a dwelling to ...


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