On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1946-08.
The opinion of the court was delivered by: Ashrafi, J.S.C. (temporarily assigned).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 15, 2009
Before Judges Carchman, Parrillo and Ashrafi.
Plaintiff Gloria Osoria appeals the decisions of defendant West New York Rent Control Board and the Law Division of the Superior Court that her ten-year tenancy lost the protection of a local rent leveling ordinance when her landlord converted the building to an exempt, owner-occupied, four-family dwelling. Because the ordinance is silent on the effect that conversion of rental property may have on the relative rights of tenants and landlords, we must determine whether the Board and the court interpreted the ordinance correctly, as well as address a conflict in our own prior decisions.
Although our analysis differs in part from that of the Law Division, we conclude that the Board and the Law Division correctly dismissed Osoria's complaints. See Isko v. Planning Bd. of Livingston, 51 N.J. 162, 175 (1968) (a decision may be affirmed on grounds other than those relied upon by the trial court), overruled on other grounds, Lang v. Zoning Bd. of Adj., 160 N.J. 41, 53, (1999); Grow Co. v. Chokshi, 403 N.J. Super. 443, 467 n.8 (App. Div. 2008) (same).
We hold that the West New York rent leveling ordinance provides tenant protections that are at least coextensive with New Jersey's Anti-Eviction Act, N.J.S.A. 2A:18-61.1 to -61.12, but that neither the Anti-Eviction Act nor the municipal ordinance implicitly creates vested rights protecting tenants whose buildings are converted from non-exempt to exempt status. We disagree with the contrary holding of Surace v. Papachristou, 244 N.J. Super. 70, 76 (App. Div. 1990), regarding the Anti-Eviction Act, and we disapprove a similar contrary holding of Chambers v. Nunez, 217 N.J. Super. 202 (Law Div. 1986).
The relevant facts are not in dispute. Osoria moved into her son's apartment in West New York in about 1997. At that time, the three-story building had five residential units and two stores. The rent for the residential units was controlled by the West New York rent leveling ordinance. W.N.Y. Mun. Code, c. 312 (1982).
In 2000, defendant 5004 Bergenline Realty, L.L.P., a partnership of two brothers, purchased the property and became the landlord. Also in 2000, Osoria's son moved out of the apartment. In 2001, the landlord attempted to raise the rent. When Osoria and her son refused to enter into a new lease at the higher rent, the landlord brought a landlord-tenant eviction action in the Superior Court, Special Civil Part (hereinafter referred to as "landlord-tenant court"). The parties settled that action, and Osoria was named as the tenant on a new lease.
In 2006, the landlord obtained permits from the municipality and remodeled the building, moving a staircase and eliminating an apartment and one store on the ground floor. The building now has one store on the ground floor and four apartments above. In 2007, the general partner of the landlord 5004 Bergenline Realty, L.L.P. moved into one of the apartments. Thus, the landlord claimed that the building became owner-occupied with four residential units.
Believing that the rent leveling ordinance no longer applied to its building, the landlord served Osoria with a notice to quit her tenancy or, alternatively, to enter into a new lease increasing her monthly rent to $750. The increase was substantially more than permitted by the rent leveling ordinance. Osoria agreed to pay $427 rent and tendered that amount each month, but the landlord has not accepted that amount as rent.
Osoria filed a complaint with defendant Rent Control Board in June 2007. The Board held hearings on three dates from September 2007 through February 2008. The hearings focused primarily on whether the building actually contained four or five residential apartments and whether the general partner was a bona fide resident of an apartment in the building. But counsel for Osoria also asserted that her client was protected by the rent leveling ordinance even if the building was converted to four residential units and the partner was living in one of the apartments. The Board concluded that the partner was a bona fide resident. It also decided that the building was converted into a four-family dwelling, exempting it from the rent leveling ordinance. By written decision, the Board denied Osoria's complaint of rent overcharge.
The landlord immediately filed a complaint in the landlord-tenant court to evict Osoria for failure to pay the charged rent. Osoria, in turn, challenged the Board's decision by filing an action in lieu of prerogative writs in the Superior Court, Law Division, in accordance with Rule 4:69. The landlord's eviction action was then consolidated with the prerogative writs action.
Following argument, the Law Division rendered an oral decision and entered an order on October 24, 2008, dismissing Osoria's prerogative writs complaint. The court concluded, as had the Board, that Osoria was not protected by the West New York rent leveling ordinance because the building was now exempt as an owner-occupied, four-family dwelling. Pending appeal, the parties agreed that Osoria would pay into escrow the difference between the rent the landlord sought and the rent permitted under the rent leveling ordinance, and the eviction action was voluntarily dismissed.
On appeal, Osoria does not challenge the Board's factual finding that the general partner of the landlord is a bona fide resident of the building, or that the building now has only four residential units. She asserts that the Board and the Law Division erred in concluding that her building is exempt from the West New York rent leveling ordinance. She also challenges a Board member's allegedly ex parte inspection of the building and acceptance of his report by the Board.
The West New York ordinance applies rent controls to all "controlled housing space" in the municipality, W.N.Y. Mun. Code § 312-3(A) (2007), but ...