Bass River Associates v. Mayor, Tp. Com'r, Planning Bd. of Bass River Tp.

• Decision Date: 31 August 1984
• Docket Number: No. 83-5727,83-5727
• Citation: 743 F.2d 159
• Parties: BASS RIVER ASSOCIATES, t/a Bass River Yachting Center and Mariner Houseboats, Inc., Appellants v. The MAYOR, TOWNSHIP COMMISSIONER, PLANNING BOARD OF BASS RIVER TOWNSHIP and Bass River Township.
• Court: U.S. Court of Appeals — Third Circuit

Page 159

743 F.2d 159

1985 A.M.C. 1896

BASS RIVER ASSOCIATES, t/a Bass River Yachting Center and Mariner Houseboats, Inc., Appellants v. The MAYOR, TOWNSHIP COMMISSIONER, PLANNING BOARD OF BASS

RIVER TOWNSHIP and Bass River Township.

No. 83-5727.

United States Court of Appeals, Third Circuit.

Argued July 3, 1984.

Decided Aug. 31, 1984.

Edward V. Cattell, Jr. (argued), Stuart M. Goldstein, Cattell & Keating, Haddonfield, N.J., for appellants.

Richard J. Shackleton (argued), James E. Bishop, Frank A. Buczynski, Jr., Shackleton, Hazeltine & Dasti, Ship Bottom, N.J., for appellees.

Before HIGGINBOTHAM, SLOVITER, Circuit Judges, and GREEN, District Judge ^*.

OPINION OF THE COURT

SLOVITER, Circuit Judge.

At issue is the validity of an ordinance of Bass River Township, N.J., that bans "floating homes." The plaintiffs are the owner of a marina and a builder of houseboats, who together had planned to sell and moor boats. They were unable to do so because the township adopted the exclusionary ordinance as a response to the plaintiffs' proposal. Plaintiffs challenged the constitutionality of the measure in the United States District Court for the District of New Jersey. The district court rejected their challenge. We will affirm.

I. FACTS

Bass River Township, in the pine barrens of New Jersey, is a sparsely populated, ecologically fragile area. Its waters are used by campers and boaters, and the estuarine areas contain oyster beds. The township does not have a police force or trash collection service, and it depends on volunteer firefighters. All real estate development is governed by the township's master plan, subdivision and site plan ordinance, and zoning ordinances, as well as the New Jersey Pinelands Protection Act, N.J.S.A. 13:18A-1 et seq. (1979 & Supp.1984), and Coastal Area Facility Review Act, N.J.S.A. 13:19-1 et seq. (1979). Under the master plan, minimum lot size for a dwelling is 3.2 acres.

Appellant Bass River Associates devised a plan to buy an existing 32-acre marina on the Bass River, to install amenities and, in a dealership agreement with appellant Mariner Houseboats, to sell and moor houseboats there. Sixty-six boats were to be moored in the eight-acre basin. The boats were designed for year-round living; they could either be towed from location to location or propelled by optional outboard engines but none of those built through 1982 were ordered with an optional outboard. App. at 80a. Sewage was to be removed by a vacuum pump system and discharged elsewhere, but the boats would discharge water from the bath, laundry and kitchen, termed "gray water".

The appellants and their architect presented the plan to township officials, who did not expressly oppose it. Appellants then purchased the marina. It is not clear what the parties' understanding was at this point. However, very soon thereafter, the township drafted the ordinance banning floating homes and the Board of Commissioners conducted a hearing. There, the marina project was opposed by state officials, shellfish industry representatives, and the chief of the local volunteer fire company, among others. The opposition was based primarily on ecological concerns but a consultant also anticipated problems The Board then adopted the ordinance, which provides, in principal part:

involving trash disposal, flood and ice storm damage, traffic and parking, and police protection.

(a) No Floating Home shall be occupied and no Floating Home Marina shall be permitted in any zone within the Township of Bass River.

(b) No marina shall permit in water or out of water storage of any Floating Home.

(c) No person, firm or corporation shall operate or cause to be operated a Floating Home Marina or rent, hold out for rent or sell any site or space for the location of a Floating Home.

Bass River Township, N.J., Ordinance 83-1, Section II (January 20, 1983).

The ordinance distinguishes between houseboats, which are defined in Section I as "those vessels not designed primarily for residential dwelling units," and "floating homes," defined as "any vessel in fact used, designed, or occupied as a permanent dwelling unit." The ban applies only to floating homes. ¹ It is undisputed that the appellants were the only persons adversely affected by Ordinance 83-1 when it was enacted.

The appellants claimed in district court that the ordinance (1) was preempted by the federal licensing and water pollution statutes and (2) violated the appellants' due process and equal protection rights. The district court discussed and rejected the preemption argument in an unreported opinion. App. at 55a, and the case then proceeded to trial on the due process and equal protection issues. After trial the court dismissed the appellants' complaint. Bass River Associates v. Mayor of Bass River Township, 573 F.Supp. 205 (D.N.J.1983). The appellants appeal on both the preemption and Fourteenth Amendment issues.

II.

PREEMPTION

A. Licensing of Vessels

The appellants contend that Ordinance 83-1 is preempted by the federal legislation providing for ship licenses. ² They argue that because the boats used as floating homes would carry federal ship licenses the township may not exclude them from navigable waters. The district court rejected this argument on the ground that Congress intended the grant of licenses to protect the passage of vessels in interstate commerce and that that federal interest is not implicated in this case. We agree.

The appellants do not identify the specific statutory provision that they believe is preemptive. We proceed on the assumption that they refer to 46 U.S.C.A. Sec. 12109 (1983) (formerly 46 U.S.C. Sec. 65l ) and that the issuance of licenses to the floating homes comes within that section. It provides in its entirety:

Sec. 12109. Pleasure vessel licenses

(a) A pleasure vessel license may be issued for a vessel that is--

(1) eligible for documentation; ³ and

(2) to be operated only for pleasure.

(b) A licensed pleasure vessel may proceed between a port of the United States and a port of a foreign country without entering or clearing with the Customs Service.

(c) The Secretary may prescribe by regulation reasonable fees for issuing, renewing, or replacing a pleasure vessel license, or for providing any other service related to a pleasure vessel license. The fees shall be based on the costs of the service provided.

Other statutory sections provide for licenses to be granted vessels engaged in the coastwise trade, 46 U.S.C.A. Sec. 12106 (formerly 46 U.S.C. Sec. 65i) and the fisheries, 46 U.S.C.A. Sec. 12108 (formerly 46 U.S.C. Sec. 65k). In addition to a license, vessels in the latter two categories must have a registry authorizing their use in the coastwise or fisheries trade. There is no registry for pleasure vessels.

The legal effect of a license (or documentation) alone is explained as follows:

Sec. 12104. Effect of documentation

A certificate of documentation is--

(1) conclusive evidence of nationality for international purposes, but not in a proceeding conducted under the laws of the United States;

(2) except for a pleasure vessel license, conclusive evidence of qualification to be employed in a specified trade; and

(3) not conclusive evidence of ownership in a proceeding in which ownership is in issue.

46 U.S.C.A. Sec. 12104 (formerly 46 U.S.C. Sec. 65g) (emphasis added).

It is evident from examination of the various federal laws related to vessels and shipping, many of which were revised and consolidated in 1983 into new Title 46 of the United States Code, that no provision explicitly preempts state regulation or licensing of pleasure vessels. It is of some interest and no small significance that a provision in the same title does provide for federal preemption of state and local laws or regulations in the area of equipment performance and safety standards. 46 U.S.C.A. Sec. 4306 (formerly 46 U.S.C. Sec. 1459). While the absence of an explicit preemption provision as to pleasure vessel licenses is not conclusive, it is relevant that when Congress recently carefully reviewed the series of laws related to shipping, it chose not to include a provision expressing its intent to make federal licenses preemptive.

As the Supreme Court has observed recently, absent explicit preemptive language, state or municipal legislation can nonetheless be preempted where Congress has shown an intent to occupy the field, or, in the absence of such a showing of intent, where the two measures conflict. Silkwood v. Kerr-McGee Corp., --- U.S. ----, 104 S.Ct. 615, 621, 78 L.Ed.2d 443 (1984); Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Commission, 461 U.S. 190, 103 S.Ct. 1713, 1722, 75 L.Ed.2d 752 (1983).

Turning then to the first inquiry as to Congressional intent, it is well established that "we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress." Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947). In determining whether Congress had the "clear and manifest purpose" of occupying the field of regulation, we first examine the statutory language.

Appellants concede that there is no federal compulsion to obtain a federal license for a pleasure vessel. At the owner's option, a boat may navigate with either a federal or state license. The reasons why pleasure vessels obtain federal licenses are unrelated to such lofty federal purposes as free passage along the navigable waters. They are, on the contrary, related to the financial transaction between the vessel's owner and mortgagee. Because a vessel must be federally licensed to be granted a preferred ship mortgage under the Ship Mortgage Act, 46 U.S.C. Secs. 911 et seq., owners ordinarily obtain federal licenses to satisfy mortgagees' requirements. See generally, G. Gilmore & C. Black, The Law of Admiralty, 695,...