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Case Law - save on Lexis / WestLaw. Original WP 5.1 Version This case can also be found at 343 N.J. Super. 1.
SUPERIOR COURT OF NEW JERSEY
UNITED PROPERTY OWNERS
Plaintiffs-Appellants,
v.
BOROUGH OF BELMAR, KENNETH
Defendants-Respondents.
A-2941-99T5
UNITED PROPERTY OWNERS
Plaintiffs-Respondents,
v.
BOROUGH OF BELMAR, KENNETH
Defendants-Appellants.
A-40-00T5
NICHOLAS M. ZAMPETTI, JR.
Plaintiffs-Appellants,
v.
BOROUGH OF BELMAR,
Defendant-Respondent.
Argued May 23, 2001 - Decided July 16, 2001
Before Judges Carchman, Lintner and Parrillo.
On appeal from Superior Court of New Jersey, Law
Division, Monmouth County, L-5348-98 and L-4102-98-03.
CARCHMAN, J.A.D.
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. 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. 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. 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,
nonhabitable spaces and interior public areas
shall not be occupied for sleeping purposes.
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.
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. 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.See footnote 22 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. 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. 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."
Here, the need to deter overcrowding is substantial, and the
punishment, a fine of at least $265 plus costs, is relatively
minor. The benefit to the public in abating the hazardous and
undesirable results of overcrowding outweighs any injustice
resulting from strict liability. The judge was correct in
determining that strict liability imposed on all tenants for
violation of occupancy restrictions did not violate plaintiffs'
(or tenants') right to substantive due process. Both the United States and New Jersey Constitutions prohibit the taking of private property "for public use, without just compensation." U.S. Const. amend. V; N.J. Const. art. I, ¶ 20. The principles of the federal and state constitutional doctrines "are in general conformity." Gardner v. New Jersey Pinelands Comm'n, 125 N.J. 193, 205 (1991). In Gardner, the Court upheld a portion of the Pineland Commission's Comprehensive Management Plan which restricted residential development to forty-acre lots, thirty-nine of which had to be permanently dedicated to agricultural use. Id. at 204-10. The Court explained that takings analysis makes two fundamental demands of any zoning scheme: it must substantially advance legitimate state interests, and it cannot deny an owner all economically viable use of the land. . . . The economic effect of the regulatory scheme can be assessed in terms of the adjustment of economic benefits and burdens or the extent of interference with "distinct investment- backed expectations." [Id. at 205 (citation omitted) (quoting Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 124-28, 98 S. Ct. 2646, 2659-61, 57 L. Ed.2d 631, 648-51 (1978)).] In determining whether there has been a taking, a court must consider whether a landowner retains viable and economically- beneficial uses of the property and whether the challenged regulations advance legitimate and important public objectives. Id. at 205. See also Edgewater Inv. Assocs. v. Borough of Edgewater, 201 N.J. Super. 267, 271-72 (App. Div. 1985), aff'd, 103 N.J. 227 (1986) (holding that the protections afforded to tenants upon conversion from apartments to condominiums under the Senior Citizens and Disabled Protected Tenancy Act were not an unconstitutional taking since they advanced compelling public policies and represented a valid exercise of police power). Plaintiffs claims here are multifaceted. They first assert that the application and inspection requirements of the Ordinance prevent them from renting their properties for an entire year. The Ordinance prohibits the code official from inspecting "any dwelling unit for purposes of issuing a Summer Rental License during a period it is occupied by another tenant, regardless of whether the tenant is present at the time of the inspection." Ordinance § 26-3.9c. There is an exception for units occupied by families with school-aged children in the winter (summer rentals at these units may not begin until three days after the last school day). Ordinance §§ 26-3.9c, -7.3. This restriction does not prevent plaintiffs from renting their properties for the entire year. It has no impact on year- round rentals. If a landlord chooses seasonal rentals, this provision imposes only a short period of unrented time between the summer and winter leases. Inspections must occur within five business days if the summer rental license application is filed before May 1, or within ten business days if the application is filed after May 1. Ordinance § 26-3.9a. In Dome Realty, supra, 83 N.J. 212, the Court rejected the argument that requiring that a unit be vacant when it was inspected was arbitrary and unreasonable, and that it prevented landlords from earning fair profits. Id. at 235-37. The Court accepted the testimony of housing inspectors that inspections of vacant dwellings were more effective and noted that this scheme encouraged landlords to make apartments available for inspection and to remedy defects. In addition, if violations were uncovered, there would be no need to evict tenants. These considerations also apply to housing in Belmar. We reject plaintiffs' generalized claims that the Ordinance reduces the privacy of short term tenancies; that it limits plaintiffs' abilities to expand their properties; or that the fire or occupancy restrictions so impair the profitability of the rental units as to amount to a taking. These claims are not supported by the record; in fact, the record suggests that the summer rental market has not abated. Little credible evidence was presented that suggested a reduction in profits. Proofs suggesting "rent concessions," standing alone, fail to satisfy plaintiffs' burden to establish a taking. Gardner, supra, 125 N.J. at 210. Although plaintiffs' "investment-backed expectations" are a relevant consideration in determining economic impact, Penn Cent., supra, 438 U.S. at 124, 98 S. Ct. at 2659, 58 L. Ed. 2d at 648; Gardner, supra, 125 N.J. at 205, such proofs, woefully deficient here, must be considered in the context of whether a property owner is deprived of all or substantially all of the beneficial use of the totality of his property. See Karam v. New Jersey Dep't of Envtl. Prot., 308 N.J. Super. 225, 234-35 (App. Div. 1998), aff'd o.b., 157 N.J. 187, cert. denied, 528 U.S. 814, 120 S. Ct. 51, 145 L. Ed.2d 45 (1999) (holding that the denial of a permit to build a dock on riverfront property, because it would interfere with a shellfish habitat, did not constitute a taking. Destruction of the owner's investment-backed expectations is a factor to be considered, together with whether the regulation deprived the owner of "virtually all economically viable uses of the property" and whether the interest that was taken was vested with the owner). Certain facts are inviolate. Plaintiffs retain a viable economic use of their property. The Legislature has acted to regulate summer shore rentals, authorizing municipalities to license and supervise them, N.J.S.A. 40:52-1(n), and to hold landlords responsible for tenants' disorderly behavior, N.J.S.A. 40:48-2.12n-r. The Ordinance promotes public health and safety by abating overcrowding and fire hazards. Plaintiffs have failed to establish that the Ordinance deprived them of all economically viable use of their property. There was no taking. Ordinance section 26-7.4b provides: "It shall be unlawful at any time between the hours of 1:30 a.m. and 8:30 a.m. for the number of adults in a Summer Rental Licensed dwelling unit to exceed the maximum permitted occupancy as calculated by the Code Official." We agree with both the judge and defendants that Ordinance section 26-7.4b does not constitute a curfew because it does not prohibit anyone from appearing in public or on "the streets" after a specified hour. See Black's Law Dictionary 344 (5th ed. 1979). We disagree, however, with the judge's conclusion that the Ordinance improperly enforces occupancy limits. Ordinance section 26-7.4b does not pertain to occupancy per se. It prohibits the presence of adult occupants and non-occupants alike in a summer rental when the number of people exceeds the permitted occupancy. This does not serve to keep or insure the occupancy level at the permitted number. The Ordinance contains no definition of occupancy or occupant, but the common meaning of occupant is a person who resides in a dwelling. The number of residents or occupants remains the same regardless of how many people are present in the dwelling at any particular time. The effect of this Ordinance provision is to either exclude guests when all occupants are present or exclude occupants so that guests may be present, during the specified hours. We conclude that Ordinance section 26-7.4b interferes with summer residents' right to have visitors in their homes, a component of their right to privacy, and that it is overbroad in accomplishing a legitimate municipal goal, in violation of summer residents' due process rights. We first observe that the right to have guests or visitors _ non-occupants _ present in one's home is not, in and of itself, a constitutional or fundamental right. However, as the United States Supreme Court has acknowledged, the right to privacy in one's home encompasses the right to host guests. In an unrelated context, the United States Supreme Court explored the relationship of social guests and privacy rights. In Minnesota v. Olson, 495 U.S. 91, 95-100, 110 S. Ct. 1684, 1687-90, 109 L. Ed.2d 85, 92-96 (1990), the Court held that an overnight guest had a reasonable expectation of privacy, so that a warrantless entry into the house to arrest him violated his Fourth Amendment right to freedom from an unreasonable search and seizure. The Court commented that its holding "merely recognizes the everyday expectations of privacy that we all share. Staying overnight in another's home is a longstanding social custom that serves functions recognized as valuable by society." 495 U.S. at 98, 110 S. Ct. at 1689, 109 L. Ed. 2d at 94. More recently, Justice Ginsburg, in dissent, emphasized that the home was "the most essential bastion of privacy recognized by the law." Minnesota v. Carter, 525 U.S. 83, 106, 119 S. Ct. 469, 481, 142 L. Ed.2d 373, 390 (1998) (Ginsburg, J., dissenting). She commented: My concern centers on an individual's choice to share her home and her associations there with persons she selects. Our decisions indicate that people have a reasonable expectation of privacy in their homes in part because they have the prerogative to exclude others. The power to exclude implies the power to include. See, e.g., . . . Alschiler, Interpersonal Privacy and the Fourth Amendment, 4 N. Ill. U.L. Rev. 1, 13 (1983) ("[O]ne of the main rights attaching to property is the right to share its shelter, its comfort and its privacy with others."). [525 U.S. at 107, 119 S. Ct. at 482, 142 L. Ed. 2d at 391 (other citations omitted).]
Here, plaintiffs and their summer tenants have no complaint about
any physical intrusion into, or search of their homes.
Nevertheless, their right to privacy in their homes includes the
choice to share it with others.
Defendants have articulated no legislative purpose for
Ordinance section 26-7.4b, other than to assertedly address the
general overcrowding, and resulting safety hazards and nuisances,
that occur in summer rentals, as set forth in Ordinance section
26-7.1, "Legislative Findings." Prohibiting the number of people
allowed in a dwelling between 1:30 a.m. and 8:30 a.m. to exceed
the occupancy rate abates overcrowding due to guests, but it does
not abate the continuous or long-term overcrowded living
conditions resulting from too many occupants. We acknowledge
that limiting the number of people allowed in a dwelling during
the specified hours may alleviate the problems of "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," at least during the hours defendants chose for its
application. It thus has a "conceivable rational basis." See
Greenberg, supra, 99 N.J. at 563. However, applying the
"compelling state interest" test used when the legislation
encroaches upon First Amendment or fundamental rights, Chamber of
Commerce, supra, 82 N.J. at 70, the government interest served by
Ordinance section 26-7.4b, reducing the undesirable behavior
described in Ordinance section 26-7.1, and overcrowding due to
guests, does not outweigh its repressive effect on privacy and
associational rights. We reach the same result with respect to the fifty-dollar tourism fee. The fee is authorized by N.J.S.A. 40:52-7, and nothing in the record suggests that it is excessive. We affirm the trial judge's findings in that regard. Finally, we dispose of plaintiffs' contention that the judge improperly severed portions of the Ordinance or provided a "guidebook" to defendants in his opinion as to how to amend the Ordinance. The trial judge had the authority to engage in "judicial surgery," or narrow construction of a statute or ordinance, to free it from constitutional doubt or defect. See N.J.S.A. 1:10- 1; Chamber of Commerce, supra, 82 N.J. at 75. The issue focuses on both legislative intent, ibid., and whether the objectionable feature of the ordinance can be excised without substantial impairment of the principal object of the statute. Affiliated Distillers Brands Corp. v. Sills, 60 N.J. 342, 345 (1972). We will enforce severability where the invalid portion is independent and the remaining portion forms a complete act within itself. Inganamort v. Borough of Fort Lee, 72 N.J. 412, 423 (1977). Such is the case here, as the remaining provisions present a viable legislative action, constitutionally sound, and capable of lawful enforcement. So too, we reject plaintiffs' claim that an ordinance under attack may not be amended during the course of litigation. See Van Dalen v. Washington Township, 205 N.J. Super. 308, 333 (Law Div. 1984) (noting that where an ordinance is amended during the course of litigation, a court will ordinarily decide the validity of the ordinance in its amended form). All of these contentions are clearly without merit and need no further discussion. R. 2:11-3(e)(1)(E). The factual predicate for section 26-7.3 was based in part on a descriptive summary of the plight of Belmar school children in that community. Dr. Lester Richens, Belmar's Superintendent of Schools for over twenty years, explained that children starting school late and leaving early was a long-term problem. Richens noted that Belmar's mobility rate always exceeded the state average of 16%, ranging from 22.5% to 38% between 1994 and 1999. According to Richens, keeping a child in the district for the full school term was "really beneficial for the educational program of that child." Richens said that "the majority of the students leaving after March is due to the winter rental situation," and many of the families who are displaced in the spring become homeless or move into motels. When families relocate into welfare motels, their living quarters are overcrowded, and the children are unable to complete homework assignments. In addition, some children whose families move out of the district in the spring finish the school year in Belmar, with their families providing transportation, but many of these children are left "to wander the streets after school" until their families pick them up at 5:00 p.m. or 6:00 p.m. Children's attention patterns become sporadic and their tardiness increases. According to Richens, "we have a real problem when it comes to children needing stability, and if the Belmar community can give them one year of stability in their education, I think it's well worth it." The Act provides, in relevant part, that "it shall be unlawful . . . [t]o discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling . . . because of . . . familial status."See footnote 44 42 U.S.C.A. §3604(b). The Act further provides: Nothing in this subchapter shall be construed to invalidate or limit any law of a State or political subdivision of a State . . . that grants, guarantees, or protects the same rights as are granted by this subchapter; but any law of a State, a political subdivision, or other such jurisdiction that purports to require or permit any action that would be a discriminatory housing practice under this subchapter shall to that extent be invalid. [ 42 U.S.C.A. §3615.] We briefly address the issue of standing. The judge determined that plaintiffs had standing under the Act, concluding that courts have interpreted standing to pursue a claim under the Act broadly and that the Act includes associations and legal representatives in its definition of "persons." 42 U.S.C.A. §3602(d). The Act authorizes an "aggrieved person" to commence a civil action in state court. 42 U.S.C.A. §3613(a)(1)(A). An "aggrieved person" is defined as "any person who _ (1) claims to have been injured by a discriminatory housing practice; or (2) believes that such person will be injured by a discriminatory housing practice that is about to occur." 42 U.S.C.A. §3602(i). The judge relied on Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 103 n.9, 99 S. Ct. 1601, 1609 n.9, 60 L. Ed.2d 66, 79 n.9 (1979) ("as long as the plaintiff suffers actual injury as a result of the defendant's conduct, he is permitted to prove that the rights of another were infringed"), and concluded that plaintiffs were sufficiently aggrieved to pursue a claim under the Act. We reject defendants' argument that plaintiffs do not have standing because they are not "members of the class of individuals protected by the Federal Fair Housing Act." Other courts have consistently allowed non-members of a protected class to bring actions under the Act, as long as the defendant's violation of the Act resulted in injury to the plaintiffs. For example, in San Pedro Hotel Co. v. City of Los Angeles, 159 F.3d 470, 472-75 (9th Cir. 1998), plaintiff hotel owners who had contracted to sell their hotel to a non-profit developer for use as housing for the mentally disabled had standing to sue under the Act, when the city declined to approve a federally-funded loan to finance the project, despite plaintiffs' "tenuous" connection to the protected individuals: [T]o establish standing under the Act, all the [plaintiffs] need show is that the City interfered with the housing rights of the mentally ill and that, as a result, the [plaintiffs] suffered an actual injury. As potential sellers of the property who were unable to sell their property to a buyer because of the City's allegedly improper interference with an HUD loan, the [plaintiffs] meet this test. [Id. at 475.] See also, Baytree of Inverrary Realty Partners v. City of Lauderhill, 873 F.2d 1407, 1408 (11th Cir. 1989) (holding that a real estate developer, not a member of the protected class under the Act, had standing under the Act to challenge a municipality's refusal to amend a zoning ordinance to allow low-income housing); Mackey v. Nationwide Ins. Cos., 724 F.2d 419, 420, 422-23 (4th Cir. 1984) (holding that former agent of defendant-insurance company who alleged that defendant practiced "redlining," or an "arbitrary refusal to underwrite the risks of persons residing in predominantly black neighborhoods," had standing under the Act because he alleged "an economic injury to himself"). Plaintiffs suffer actual economic injury as a result of the Ordinance; when they rent to families with children over the winter, the term of their summer rentals becomes restricted. Like the owners who were unable to sell their property in San Pedro, supra, 159 F. 3d at 475, and the builder who was unable to build low-income housing in Baytree, supra, 873 F. 2d at 1408, plaintiffs are unable to lease their properties for the terms that are most profitable. We agree with defendants' observation that plaintiffs' interests are adverse to the interests of the family-tenants whom the Ordinance seeks to protect. However, that diversity of interest, even contrary to the protected class, does not deprive plaintiffs of standing under the Act. Plaintiffs need show only actual injury to themselves as a result of defendants' conduct. Bellwood, supra, 441 U.S. at 103 n.9, 99 S. Ct. at 1610 n.9, 60 L. Ed. 2d at 79 n.9. We reject defendants' reliance on Nasser v. City of Homewood, 671 F.2d 432 (11th Cir. 1982). The denial of standing in Nasser was based on zoning which impacted on plaintiff's economic loss alone. Id. at 435-38. Here, in contrast, the Ordinance restricts plaintiffs' use of their properties only when they rent to families with children. The Ordinance thus imposes special conditions for rentals to a class protected by the Act. Unlike Nasser, here the disparate treatment set forth in the Ordinance causes plaintiffs' economic loss. It is this disparate treatment under the Ordinance which serves as the underpinning to support plaintiffs' claim of standing. The possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce. . . . To uphold the Government's contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States. [514 U.S. at 567, 115 S. Ct. at 1634, 131 L. Ed. 2d at 642-43.]
See also United States v. Morrison,
529 U.S. 598,
120 S. Ct. 1740,
146 L. Ed 2d 658 (2000) (holding that the civil remedy
provision of the Violence Against Women Act of 1994,
42 U.S.C.A.
§13981(c), exceeded Congress' Commerce Clause power). This principle was explored recently in Groome Resources Ltd. v. Parish of Jefferson, 234 F.3d 192 (5th Cir. 2000). There, the Parish challenged a provision of the Act, 42 U.S.C.A. §3604(f)(3)(B), which includes, as unlawful discrimination, "a refusal to make reasonable accommodations" to handicapped buyers or renters. Groome, supra, 234 F. 3d at 195. Plaintiff, a business that operated group homes for people with Alzheimer's disease, requested reasonable accommodation in the form of permission to house five people in a group home, when defendant's zoning ordinance allowed only four. Id. at 196. Because of local opposition, the Parish did not act on plaintiff's application. Id. at 197. The court held that the purchase and rental of residential housing, and plaintiff's proposed operation of its group home, were commercial or economic activity and, citing Jones and Russell, concluded that "renting and otherwise using housing for commercial purposes implicates the federal commerce power." Id. at 206. The court explained that the occurrence of an act of discrimination "on a local stage is of no moment, because when Congress has chosen a national arena to regulate, every actor that affects commerce is subject to regulation." Id. at 211. The court found the connection between discrimination against the handicapped in housing and interstate commerce strong enough to pass the attenuation test set forth in Lopez and Morrison. Id. at 214-17. The court reasoned: We do not need to pile "inference upon inference" to see that by refusing to reasonably accommodate the disabled by discriminatory zoning laws, there will be less opportunity for handicapped individuals to buy, sell, or rent homes. . . . Therefore, the regulation of discriminatory policies in the purchase or rental of housing directly affects the housing industry and the economy. [Id. at 215.]
This reasoning is applicable here. Seasonal rentals in
Belmar are commercial activity, earning profits for plaintiff-
owners, just as in Groome. The Ordinance's restriction on
seasonal rentals following the tenancy of a family with school-
aged children affects the housing rental industry. In conclusion, we reject defendants' argument that the Act is an invalid exercise of Congress' power under the Commerce Clause. To determine whether there has been discrimination under the Act, we apply the analysis utilized in employment discrimination claims under Title VII of the Civil Rights Act of 1968, 42 U.S.C.A. §2000e; the plaintiff must prove either disparate treatment or disparate impact. Harris v. Itzhaki, 183 F.3d 1043, 1051 (9th Cir. 1999). We surmise that the judge analyzed the issue as one of disparate impact. To establish a prima facie case of disparate impact, one must demonstrate that a facially neutral practice or policy resulted in a significantly disproportionate or adverse impact on members of the affected class. Pfaff v. HUD, 88 F.3d 739, 745 (9th Cir. 1996) (reversing a determination that a landlord's occupancy limit discriminated on the basis of familial status). Thus, plaintiffs must establish actual discriminatory impact; raising an inference is insufficient. Ibid. Even though plaintiffs assert that the Ordinance discriminates on its face, they commenced this action within months of the enactment of the Ordinance and before defendants had an opportunity to apply it to the extent that its impact could be measured. Plaintiffs thus did not and could not prove even a prima facie case of disparate impact. Despite this failure of proof, we agree that section 26-7.3 is discriminatory on its face. Section 26-7.3 imposes disparate treatment upon families with children because of their familial status. It does not grant or protect the freedom from discrimination as set forth in 42 U.S.C.A. §§3604(b). Although it does not directly affect families with school-aged children, it restricts the use of dwellings rented to such families between the specified dates. This clearly impacts on the terms and conditions of these families' leases. Imposing this different or disparate treatment on units rented to families with school-aged children constitutes a discriminatory housing practice and is invalid under 42 U.S.C.A. §§3604(b) and 3615. We have scrupulously required that state and municipal regulations conform to the Act. See, e.g., Borough of Merchantville v. New Jersey Dep't of Human Servs., 325 N.J. Super. 258, 264-66 (App. Div. 1999) (interpreting N.J.S.A. 30:11B-2, which provides for community residences for the mentally ill, to include people with other handicaps, such as recovering alcoholics and substance abusers, in order to avoid discrimination prohibited by the Act); In Re Commitment J.W., 288 N.J. Super. 197, 207-08 (App. Div. 1996) (invalidating N.J.S.A. 30:11B-2 and N.J.S.A. 40:55D-66.2, which prohibit a person found incompetent to stand trial or not guilty by reason of insanity from living in a community group home, as "fatally inconsistent with 42 U.S.C.A. §3604" because the Act requires "a careful, individualized consideration of the particular facts justifying their exclusion"); Cherry Hill Township v. Oxford House, Inc., 263 N.J. Super. 25, 55 (App. Div. 1993) (remanding for trial to determine whether the township, through its zoning ordinances, had discriminated against former substance abusers living in group homes, in violation of the Act). In sum, section 26-7.3 authorizes discriminatory treatment of dwellings rented to families with school-aged children. The legislative construct creates circumstances that potentially inure not only to the detriment of summer landlords, but to the very children defendants purport to protect. Although well- intentioned, such treatment constitutes discrimination on the basis of familial status in violation of 42 U.S.C.A. §3604(b). We agree with the trial judge's conclusion that section 26-7.3 violated the Act. We first observe that plaintiffs' Act claim was discrete. In similar circumstances, where fee-shifting claims are combined with non fee-shifting claims, we have suggested that while plaintiffs are entitled to fees, the integration of the various claims is a factor to be considered. Chattin v. Cape May Greene, Inc., 243 N.J. Super. 590, 614 (App. Div. 1990), aff'd o.b., 124 N.J. 520 (1991); 49 Prospect St. Tenants Ass'n v. Sheva Gardens, Inc., 227 N.J. Super. 449, 470 (App. Div. 1988). We further note that while plaintiffs prevailed on this aspect of the claim, the overall attack of the Ordinance was generally unsuccessful. This is another relevant factor for consideration. Ultimately, the issue of counsel fees attributable to this claim was a discretionary determination. The trial judge carefully considered the fee application, noted that counsel's time records did not establish the time expended on the Act claim, and awarded ten percent of the claimed $180,297.15. We find that there was no abuse of discretion, and we affirm the judge's award. The judge invalidated the following provisions of the Ordinance: Applications for certificates of inspection must include both (1) a copy of the lease, if there is a written lease, "executed by all adult persons who will be tenants"; the applicant may redact the rent amount, Ordinance § 26-2.4d; and (2) an affidavit of each tenant stating: i. whether he or she maintains a residence elsewhere, and providing the full address thereof; ii. providing a true and correct copy of his or her driver's license or if not available alternative proof of identification; iii. listing the names of all minors who will occupy the dwelling unit, and the ages of each child as of the date of the application. [Ordinance § 26-2.4e.] We note that applications for public accommodations licenses for hotels and motels must include the names and addresses of all tenants, and a copy of the lease if it is in writing (monetary amounts may be redacted), Ordinance § 26-3.5a.4, while applications for summer rental licenses must include: (1) "[t]he names and mailing addresses of all tenants and of all adult persons who are tenants," Ordinance § 26-3.5b.1.iv, or when a special license is issued, covering short-term rentals for thirty-one days or less, the applicant must provide the identities of new tenants and the dates of their occupancy, Ordinance § 26-3.4; (2) a copy of the lease if it is in writing, with the option to delete the amount, Ordinance § 26-3.5b.5; (3) an affidavit of each tenant "stating whether he or she maintains a residence elsewhere, providing the full address and telephone number thereof, [and] stating whether the other address is his or her permanent address," as well as "[a] copy of the tenant's driver's license or if not available such alternative proof of identification," Ordinance § 26-3.5b.6; (4) an affidavit of each tenant substantially as follows: I HEREBY ACKNOWLEDGE that the maximum permitted occupancy of this Summer Rental is _____ persons. I understand that occupancy by a number of persons greater than this maximum limit between the hours of 1:30 a.m. and 8:30 a.m. is a violation of Borough Ordinance and shall result in the issuing of a summons . . . . I further understand that Summer Rental occupancy limits are strictly enforced, and that they apply to all occupants of Summer Rentals regardless of whether they are tenants or guests. [Ordinance § 26-3.5b.7.] Anyone who becomes a tenant after the issuance of a summer rental license must also submit this affidavit unless a special license for short-term rentals is issued in accordance with Ordinance section 26-3.4. Ordinance § 26-3.1a. Defendants' justification for requiring this information was that a copy of the lease was necessary to determine whether it "would fall under the enabling authority," which depended on the period of the tenancy. Also, it was necessary to ascertain whether any children would be residing in a rental unit, so that the Borough could determine whether its restriction on such rentals was applicable. According to Pringle, the Borough obtained the names of tenants to require them to "sign off on a disclosure as to what the occupancy was," which would prevent occupancy violations. "The whole point of this process is to make sure that every person that pays money to live in a summer rental in Belmar, is told what the occupancy is . . . . [and] the hours during which it was going to be enforced." The judge determined that the required information "implicate[s] privacy interests"; it could "provide details of familial relationships and other intimate living arrangements." Yeager v. Hackensack Water Co., 615 F. Supp. 1087, 1092 (D.N.J. 1985). Balancing Belmar's legitimate "interest in protecting itself from the problems caused by summer residents" against "individuals' privacy rights," he concluded that the disclosure requirements of the Ordinance were not narrowly tailored to the end sought to be achieved. The Borough is essentially attempting to curb the rowdiness type behavior caused by summer residents indirectly by requiring them to provide the Borough with private information. However, the Borough does not need to know the names of tenants or their addresses or other personal information to enforce an occupancy limit. Yeager is particularly instructive. In Yeager, defendant- water company demanded the names and social security numbers of residents of homes to which it supplied water, to ration water according to the number of people in the home, in accordance with a state drought emergency program. Id. at 1089. The court held that the demand for social security numbers violated the Privacy Act of 1974, 5 U.S.C.A. §552a. 615 F. Supp. at 1089-92. Regarding the names of residents, the court determined that "the right to be free from compelled disclosure of the names of household members is within the right of privacy which has been recognized by the courts." Id. at 1092. The water company alleged that the names were necessary "to verify the number of water users," in order to determine whether rations were being exceeded. Id. at 1092-93. The court acknowledged the state's "substantial interest in alleviating the water emergency," but determined that "there exist[ed] less intrusive methods by which defendants might achieve their objectives. Contrary to their assertions, defendants [showed] no evidence that individuals, if asked, would intentionally misrepresent the number of household members." Id. at 1093. In Doe v. Poritz, 142 N.J. 1 (1995), the Supreme Court upheld the disclosure requirements of the Registration and Community Notification Laws, N.J.S.A. 2C:7-1 to -11 (Megan's Law), against a challenge that public disclosure of private information related to convicted sex offenders invaded their privacy rights. 142 N.J. at 77-91. The Court explained that the initial inquiry was whether "plaintiff has a reasonable expectation of privacy in the information disclosed." Id. at 78. If plaintiff did have such a reasonable expectation, "we must decide whether the intrusion on the right of privacy is justified, balancing the governmental interest in disclosure against the private interest in confidentiality." Ibid. The Court analyzed each item of information that the provisions required to be disclosed and determined that plaintiff had no reasonable expectation of privacy in most of the items because they were readily available to the public. Id. at 79-83. The Court noted that the records of the Division of Motor Vehicles, which included the applicant's address, were public records under N.J.S.A. 47:1A-2. 142 N.J. at 80. Despite its public availability, the Court held that disclosure of a home address implicated privacy interests, because it might result in unsolicited contact. Id. at 82-84. The Court also held that "a privacy interest is implicated when the government assembles those diverse pieces of information into a single package and disseminates that package to the public." Id. at 87. Nevertheless, on the other side of the equation, the Court said: "The state interest in protecting the safety of members of the public from sex offenders is clear and compelling." Id. at 89. The Court noted that "the degree and scope of disclosure is carefully calibrated to the need for public disclosure: the risk of reoffense." Ibid. In reference to this Ordinance, we have held that the restrictions on rentals to tenants with school-aged children violate the Fair Housing Act; that conclusion places in substantial issue whether Belmar has any legitimate interest in obtaining the names and ages of children who will occupy dwelling units. We answer that query in the negative and conclude that Ordinance section 26-2.4e.iii, requiring this information, is unnecessary. In addition, the judge invalidated the requirement of the tenant's affidavit acknowledging the rental's maximum permitted occupancy as a violation of tenants' right to privacy. However, we observe that the proposed affidavit does not implicate any privacy rights because it does not state any private facts about tenants. Cf. Doe, supra, 142 N.J. at 78. Requiring tenants to execute this affidavit thus does not infringe on their right to privacy, and the judge erred in voiding this requirement.See footnote 66 As the Court pointed out in Doe, drivers' licenses or other identification are "records which are required by law to be made, maintained, or kept on file," and are thus are public records under N.J.S.A. 47:1A-2. See 142 N.J. at 80. However, despite the availability of home addresses, their disclosure implicates privacy interests. Id. at 82-84. In addition, neither unlisted telephone numbers nor copies of leases are public records or otherwise available to the public. Tenants and plaintiffs thus have a reasonable expectation of privacy of this information. Defendants argue that the Borough does not disclose the information to the public. Nor does it compile "diverse pieces of information into a single package." Names, addresses, and identification do not constitute confidential or private information. Unlisted telephone numbers and leases seem more worthy of confidentiality. Belmar has established no interest in disclosure. Defendants have failed to explain why it is necessary to review an entire lease to determine its term. As the court said in Yeager, there are less intrusive methods for obtaining this information; license applicants would supply it when asked. See 615 F. Supp. at 1093. Nor have defendants stated any reason for requiring addresses, telephone numbers, or document identification of tenants. Pringle explained that the Borough obtained the names of tenants to require them to "sign off on a disclosure as to what the occupancy was," which would prevent occupancy violations. However, addresses, telephone numbers and identification are not necessary to obtain a signed occupancy disclosure. Under Ordinance section 26-3.5b.7, applications for summer rental licenses must include tenants' affidavits acknowledging occupancy restrictions. Such a requirement precludes defendants' need to contact tenants to inform them of occupancy limits or to obtain this signed disclosure. It is provided with the application for the summer rental license. The judge was correct that defendants "need not know the names or addresses of tenants in order to enforce occupancy limits," and that the Ordinance requirements are "not narrowly tailored to the end sought to be achieved." In conclusion, the judge erred in voiding that portion of Ordinance section 26-3.5b.7, requiring tenants to submit affidavits acknowledging their rentals' occupancy limits, because it does not violate any right to privacy. The judge properly invalidated all the other Ordinance provisions requiring disclosure of information about tenants and copies of leases, as a violation of plaintiffs' and tenants' right to privacy. Ordinance section 26-3.7 provides: No Summer Rental License or Public Accommodations License shall be issued by the Code Official unless the dwelling unit or premises, as appropriate, has first been inspected and determined to be in full compliance with the Code, and the requirements of Chapter XXVI. No temporary or conditional certificates of inspection or conditional licenses shall be issued in connection with any Summer Rental License or Public Accommodations License. This section goes on to allow temporary certificates of inspection for dwelling units "subject to the restriction set forth in Section 26-7.3." Various property owners complained that minor violations such as dirty windows, dirty carpets, a window sill requiring painting, two different colors of paint on soffits, untrimmed hedges, a crack in the sidewalk, a crack in a corner of a window, or rust on a can of shaving cream in a medicine cabinet prompted license denials. The judge found: A minor violation leads to a denial of a Summer Rental License. This Court finds no rational basis for the Borough's position that no temporary or conditional licenses will be issued to summer rentals, simply because of past violations by some summer landlords. Certainly, the Borough can cite landlords for noncompliance if violations are not corrected by the expiration of the license and deny any extensions. The judge added that he "does not find any problems with a conditional Certificate being issued for 20 days or less to accommodate the Borough's concern that the defects be quickly corrected. The Court simply finds a constitutional problem with § 26-3.7 as currently formulated." Although not fully articulated, the parties apparently focused on equal protection principles in support of the constitutional claim, as the argument is not "that the legislative means are forbidden, but that the Legislature must write evenhandedly." Greenberg, supra, 99 N.J. at 562. Because no fundamental right or suspect class is involved, "the legislative classification need only be rationally related to a legitimate interest." Id. at 564. Defendants cite N.J.S.A. 40:48-2.12m, which authorizes municipalities to regulate "the maintenance and condition" of residential rentals "for the purpose of the safety, healthfulness, and upkeep of the structure and the adherence to such other standards of maintenance and condition as are required in the interest of public safety, health and welfare." The statute provides for certificates of inspection or occupancy prior to rental, which "shall be issued by the municipality upon the inspection of the unit of dwelling space by a municipal inspector and his finding that such unit meets the standards provided by law." Defendants argue that the full compliance requirement of Ordinance section 26-3.7 "is specifically allowed by" this statute. Plaintiffs have cited no statutory or other right to temporary certificates. The statutory scheme does not provide for temporary certificates to allow owners a period of time to correct minor violations. Instead, it provides that certificates of inspection or occupancy be issued upon the finding of the municipal inspector that the unit meets the applicable standards. This is exactly what Ordinance section 26-3.7 accomplishes. Plaintiffs argue that minor violations do not impact health and safety. However, N.J.S.A. 40:48-2.12m is not limited to violations _ it also speaks to "upkeep of the structure" and adherence to "standards of maintenance." Alleged minor items such as dirty and garbage-strewn premises, uncut lawns and cracked windows are health hazards to varying degrees. Inoperative smoke detectors, a minor item according to one property owner, clearly constitutes a safety hazard under any reasonable interpretation. We accept as reasonable defendants' explanation for precluding temporary certificates for summer rentals. The summer rentals are, by definition, relatively short term leases. There is a time-gap between identifying the violation, repair, inspection, and inception of the lease. The Borough determined to make the inspections at an earlier date and eliminate the need for temporary certificates. This approach is a rational, reasonable, and sufficient shield against a constitutional challenge. We conclude that the judge erred in holding Ordinance section 26-3.7 unconstitutional. It was rationally related to the legitimate purpose of ensuring full compliance with housing maintenance requirements. Ordinance section 26-7.12 provides: It shall be unlawful for any person to affix to, hang from, or otherwise display on the exterior of any structure or premise containing a Summer Rental Licensed dwelling unit during any period the license is in effect, any sign, advertisement, banner, poster, cut-out figure or other display advertising a commercial product or service, or to display strings of electric lights. Nothing contained in this section 26.7.12 shall be construed to prohibit or otherwise restrict advertising of the rental of a Summer Licensed dwelling unit in accordance with this Code. The First Amendment provides that "Congress shall make no law . . . abridging the freedom of speech." U.S. Const. amend. I. It applies to the states through the Fourteenth Amendment. Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S. Ct. 900, 903, 84 L. Ed. 1213, 1218 (1940); Hamilton Amusement Ctr. v. Verniero, 156 N.J. 254, 264 (1998), cert. denied, 527 U.S. 1021, 119 S. Ct. 2365, 144 L. Ed.2d 770 (1999). The primary complaint prompting the limitation on signs was the proliferation of "placards and signs and cutouts" that were "pasted all over the front of rental properties." Many of these signs advertised various beers. The signs were located in primarily residential zones and were characterized as "a culturally positive thing for group rental properties to do," but "inappropriate in residential neighborhoods." The judge found that the restriction on signs was not a "commercial speech" restriction. The restriction [a]ffects residential housing, not commercial enterprises. Although the signs are commercial in nature, they are not displayed for commercial purposes, rather they are presumably displayed as a form of expression. . . . The signage prohibitions in the regulation are content-based. The regulation is aimed at the content of signs because the regulation does not restrict all signs, but only signs that advertise "a commercial product or service." The judge concluded that because the restriction was content-based and applied to noncommercial speech, it was presumed invalid and defendants failed to present evidence to overcome this presumption. "'Eye-sore' concerns can be addressed through regulating the physical characteristics of the signs." We disagree with this finding and reverse this determination. Plaintiffs are incorrect that the Ordinance "includes both commercial and non-commercial speech" because it prohibits "a political or religious advertisement." The Ordinance prohibits only displays "advertising a commercial product or service," except for rental advertising. Ordinance § 26-7.12. It does not bar political or religious messages. The Supreme Court recently considered whether restrictions on commercial speech violated the First Amendment in Hamilton, supra, 156 N.J. 254. There, plaintiffs challenged N.J.S.A. 2C:34-7c, which restricted the size, number and content of signs that sexually-oriented businesses could display. Id. at 262-63. The Court applied two tests for determining whether the regulation violated the First Amendment. The first was a four- part inquiry: (1) whether the regulated speech concerned unlawful conduct or is misleading; (2) "whether the asserted governmental interest is substantial," and, if so; (3) "whether the regulation directly advances the governmental interest asserted, and"; (4) whether the regulation "is no more extensive than is necessary to serve that interest." Id. at 267 (quoting Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n, 447 U.S. 557, 566, 100 S. Ct. 2343, 2350, 65 L. Ed.2d 341, 351 (1980)). The second and overlapping test was whether "time, place and manner restrictions" were justified without regard to the content of the speech, advanced a significant governmental interest, and left alternative means of communication open. Id. at 267-68. We disagree with the judge's conclusion that the regulation is content-based because it "does not restrict all signs, but only signs that advertise 'a commercial product or service.'" The judge did not specify whether he considered the Ordinance content-based because it regulated only some commercial speech, or because it regulated only commercial speech. The prohibition against signs advertising a commercial product or service, set forth in the Ordinance, encompasses all commercial signs. Regulation of all commercial speech cannot be considered content- based because it does not include noncommercial speech; although many regulations cover both, where they do not, we consider the two categories separately. In Hamilton, the Court rejected the argument that the statute applied "beyond the commercial context." Id. at 266. Acknowledging that outdoor signs were used to convey political and social messages, the Court noted that "plaintiffs . . . made no showing of actual noncommercial use." Ibid. Nevertheless, even though it regulated only commercial speech, the Court held that the statute in issue was not content-based. Id. at 268. Here too, application of the Ordinance only to commercial speech does not render it content-based. Nor does the exception for rental signs render the prohibition content-based. The United States Supreme Court has determined that a municipality may not prohibit "for sale" signs on homes because alternative channels for communication are inadequate, and the prohibition "restrict[s] the free flow of truthful information." Linmark Assocs., Inc. v. Township of Willingboro, 431 U.S. 85, 92-95, 96 S. Ct. 1614, 1618-20, 52 L. Ed.2d 155, 161-63 (1977). New Jersey courts have also invalidated prohibitions against or severe restrictions on "for sale" signs on residences. Berg Agency v. Township of Maplewood, 163 N.J. Super. 542 (Law Div. 1978); Schoen v. Township of Hillside, 155 N.J. Super. 286 (Law Div. 1977). In Hamilton the Court explained: "A statute or ordinance is considered to be content-neutral when the legislature's predominant concern is with adverse secondary effects, such as those caused by sexually oriented businesses, and not with the content of the speech being restricted." 156 N.J. at 268. Here, Belmar's concern was not with the content of the prohibited advertising signs, but with their adverse secondary effects in residential neighborhoods, i.e., their appearance, or "eye-sore," as the judge put it. Appearance is a valid governmental objective. In City of Ladue v. Gilleo, 512 U.S. 43, 54, 114 S. Ct. 2038, 2044-45, 129 L. Ed.2d 36, 46 (1994), invalidating a nearly total ban on residential signs, the Court recognized that "the City's interest in minimizing the visual clutter associated with signs" was a "concededly valid" interest. Similarly, in State v. Miller, 83 N.J. 402, 409 (1980), invalidating another virtually complete ban on signs in residential zones, the Court, noting that "clean, salubrious neighborhoods contribute to psychological and emotional stability and well-being as well as stimulate a sense of civic pride," held that "a zoning ordinance may accommodate aesthetic concerns." See also Bell v. Township of Stafford, 110 N.J. 384, 396 (1988) (acknowledging "preserving aesthetics" as a legitimate municipal goal, while invalidating a nearly total ban on both commercial and noncommercial signs). A prohibition against commercial signs furthers this goal. Finally, Ordinance section 26-7.12 is no more restrictive than necessary and leaves open alternate channels for communication. It applies only to summer rentals during the periods that their licenses are in effect, which focuses on the problem. Summer renters may express themselves by exhibiting any type of noncommercial sign they choose, as Ordinance section 26- 7.12 prohibits only commercial signs. The prohibition on commercial signs at summer rentals is no more restrictive than necessary to preserve the character and aesthetics of residential neighborhoods. Our courts have upheld zoning bans on commercial or advertising signs. In United Advertising Corp. v. Borough of Metuchen, 42 N.J. 1, 3 (1964), the Court upheld a ban throughout the municipality on "outdoor advertising signs other than those related to a business conducted on the premises." The plaintiff sought to erect billboards in business and manufacturing districts. Ibid. The Court held that the "aesthetic impact of billboards is an economic fact which may bear heavily upon the enjoyment and value of property. It is a relevant zoning consideration." Id. at 6. In State v. J & J Painting, 167 N.J. Super. 384 (App. Div. 1979), we upheld an ordinance prohibiting contractors' signs in residential districts. The defendant-contractors claimed that the ban on posting their business signs at homes on which they were performing work violated their rights to free speech and equal protection. Id. at 385-86. We rejected this argument: "The ordinance regulation is a reasonable one and, fundamentally, simply prohibits the carrying on of a purely commercial activity in a residential zone restricted against such uses _ long a valid zoning proscription." Id. at 386. We concluded that the prohibition "serves legitimate municipal zoning functions in the protection of real estate values and considerations of aesthetics." Id. at 386-87. Here also, the ban on advertising signs at summer rentals prohibits commercial activity in a residential zone. It leaves all other means of advertising, as well as personal expression open, and advances the legitimate governmental purpose of promoting aesthetics. In conclusion, the judge erred in invalidating the prohibition against commercial signs set forth in Ordinance section 26-7.12. The Ordinance enjoys a presumption of validity. Dome Realty, supra, 83 N.J. at 235. The rational basis of fire-safety justifies it. Mannie's Cigarette Serv., supra, 259 N.J. Super. at 347-48. The judge erred in invalidating this provision. We now address the common issue raised in both the United Property Owners' appeal (A-2938-99T5) and the Zampetti appeal (A- 40-00T5) _ the propriety of Ordinance section 26-11.3a, permitting the Borough to impose a bond requirement on landlords whose tenants have acted in a repeatedly disorderly manner as defined by the Ordinance. Our consideration of the issue requires us to summarily set forth the procedural and factual background of the Zampetti appeal. The Zampettis, owners of property in defendant Belmar, leased their property to summer tenants in 1997, two of whom were issued three summonses and pled guilty to violations of Belmar's noise ordinance. Belmar instituted a proceeding to require plaintiffs to post a bond to insure future compliance, pursuant to Belmar Ordinance section 26-11 and its enabling act, N.J.S.A. 40:48-2.12n-r. After a hearing, Belmar's hearing officer required plaintiffs to post a $1500 bond. Plaintiffs contested this decision, and the trial judge affirmed. Plaintiffs appeal, contending that: (1) Ordinance section 26-11 is void because it does not conform to the enabling act; (2) both the Ordinance and the enabling act deprive plaintiffs of their right to due process, and the enabling act constitutes special legislation; and (3) defendant failed to prove that a bond was necessary. All of the issues raised in the United Property Owners' appeal were raised by the Zampettis as well. We reject these arguments and affirm the judge's determination that the bonding requirement is lawful. Plaintiffs argue that the judge erred in failing to determine that Ordinance section 26-11 is invalid because it "includes tenant offenses," i.e., excessive noise, "that are not authorized" by the enabling act. Plaintiffs reason that the Ordinance is "contrary to State law" and thus void. The Legislature determined that: a. Many of the shore resort communities in this State . . . have experienced disturbances, damage and public expense resulting from carelessly granted and inadequately supervised seasonal rentals to irresponsible vacationers by inept or indifferent landlords. b. To preserve the peace and tranquility of those communities . . . it is necessary and desirable that those communities have adequate means to curb and discourage those occasional excesses arising from irresponsible seasonal rentals. c. Accordingly, it is the purpose of this legislation to enable such communities to take effective action to assure that excesses, when they occur, shall not be repeated, and that landlords offering seasonal rentals be held to sufficient standards of responsibility. [N.J.S.A. 40:48-2.12n.]
To accomplish this goal, N.J.S.A. 40:48-2.12p.a, authorizes
municipalities in fifth- or sixth-class counties to enact
ordinances requiring such landlords to post a bond, "under
certain circumstances, as hereinafter in this act described . . .
against the consequences of disorderly behavior of their
tenants."
Belmar Ordinance section 26-11 substantially mirrors this
enabling act. The section to which plaintiffs object, 26-11.3a,
provides:
Here also, the statute and ordinance advance the legitimate
legislative goal of compensation and deterrence. The legislative
intent is "to curb and discourage" the "disturbances, damage and
public expense" that result from "irresponsible summer rentals."
N.J.S.A. 40:48-2.12n.a, b.
Footnote: 1 1 N.J.S.A. 40:52-1(n) authorizes municipalities to license and regulate the "rental of real property for a term less than 175 consecutive days for residential purposes by a person having a permanent place of residence elsewhere." Footnote: 2 2 Plaintiffs complain that the judge failed to "analyze this issue with respect to the relevant provisions of the New Jersey Administrative Code." Plaintiffs cite subsections of N.J.A.C. 5:18, but this chapter regulates liquified petroleum gas and does not apply to housing. Footnote: 3 3 We discuss the issue of the bond requirement more fully at Part XIV. Footnote: 4 4 "Familial status" is defined, in relevant part, as "one or more individuals (who have not attained the age of 18 years) being domiciled with -- (1) a parent or another person having legal custody of such individual or individuals." 42 U.S.C.A. §3602(k). Footnote: 5 5 18 U.S.C.A. §922(q) was amended in 1996 to prohibit possession of a firearm "that has moved in or that otherwise affects interstate or foreign commerce" in a school zone. Id. at U.S.C.A. § 922(q)(2)(A). Footnote: 6 6 The portion of the proposed affidavit referring to occupancy by more persons than permitted between 1:30 a.m. and 8:30 a.m. as a violation is also invalid because of our conclusion that the Ordinance provision violates tenants' rights to share their homes with guests in violation of their right to privacy. See supra, Part VII. Footnote: 7 7 The statute imposing liability on landlords for the disorderly conduct of their tenants, N.J.S.A. 40:48-2.12q was recently amended. L. 2001, c. 71. It relaxed the requirements for the commencement of a proceeding against the landlord, changing the one calendar-year period for substantiated complaints to twelve consecutive months, and reducing the minimum number of required complaints from three to two.
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