Gabe Collins Realty, Inc. v. City of Margate City

Decision Date20 November 1970
Citation271 A.2d 430,112 N.J.Super. 341
PartiesGABE COLLINS REALTY, INC., a New Jersey corporation, Fourth Ward Property Owners Association, Inc., a New Jersey corporation, Marie Biggs, Harry Biggs, Richard Nugent, Doris Nugent, Donna Catrambone, Anthony R. Catrambone, Harry Burkhardt, Barbara Burkhardt, Patrick Tricocci, Edward Harrold, Stephen Jacobs, Plaintiffs-Appellants, v. CITY OF MARGATE CITY, a Municipal corporation of the State of New Jersey, Defendants-Respondents, and Margate Civic Association, Intervenor-Respondent.
CourtNew Jersey Superior Court — Appellate Division

John W. Gilbert, Ocean City, for appellants.

Enoch A. Higbee, Jr., Atlantic City, for respondents.


The opinion of the court was delivered by


Plaintiffs, who are for the most part owners of two-family houses ('duplexes') held for summer rental, challenge the validity of a zoning ordinance of Margate City, an oceanside community in Atlantic County. Under attack is the provision of the ordinance which defines 'family,' for purposes of the use restriction of certain zones to 'single family dwellings' and to 'two family houses,' among other uses, as follows:

* * * one or more persons related by blood, marriage or adoption or not more than two unrelated persons occupying a dwelling unit as a single non-profit housekeeping unit.

The foregoing definition is contained in a revised zoning ordinance adopted in October 1967, and it was legislated for the purpose of eliminating what the governing body considered undesirable conditions hereinafter described, attending the summer rental of dwelling units to substantial groups of unrelated young men or young women. Plaintiffs contend that this limitation on the use of their property is an arbitrary and unwarranted encroachment on the use of private property. The Law Division judge, after a hearing at which testimony was taken, concluded that plaintiffs had failed to carry their burden of overcoming the presumption that the provision was valid and free from arbitrariness or unreasonableness.

Plaintiffs had tendered a subordinate contention that the municipal authorities were enforcing the ordinance in a discriminatory and oppressive manner. We do not reach this issue, which the trial court resolved in favor of defendant, as we have concluded that, as written, the provision impugned is void as an arbitrary and unreasonable restriction upon plaintiffs' right to use or rent their properties, contrary to the constitutional requirements of substantive due process. As further indicated in the course of this opinion, however, we do not entertain the view that the municipality is necessarily without legislative power to control the problem with which it has been concerned by a proper exercise of the zoning authority in relation to occupancy of dwelling units.

Defendant offered proofs at the trial that 'group rentals,' as tenancies of groups of unrelated persons are commonly denominated in the area affected, are frequently attended by 'noise and disturbance.' The renters are usually in the 20--30 age range and unmarried. The testimony of the mayor was: 'We got phone calls from neighbors who can't sleep, who can't enjoy their homes.' The police respond and 'pick up any large numbers that were making the disturbance.' Moreover, substandard structural and sanitary conditions were found in some cases, allegedly attributable to absentee ownership and irresponsibility of the renters, with premises littered with empty beer and liquor bottles and dirt and debris.

Plaintiffs emphasize that under the terms of the definition of 'family' in the ordinance, even occupancy of dwelling units by unrelated owners themselves is proscribed; for example, three schoolteachers, or close friends, or other small groups of unrelated persons nevertheless constituting a regular housekeeping unit and having common interests. They contend that, in principle, the unreasonableness of the foregoing restrictions under the ordinance extends to occupancy of dwelling units by such innocuous groups in possession as tenants, whether on an all-year basis or for the summer months. As owners, they contend that their property rights are unreasonably curtailed in their being deprived of the opportunity to rent to groups unreasonably restricted by the tests of relationship or numerical limitation to two persons. They argue that such criteria unwarrantably impair the normally expectable economic return from the properties which are functionally appropriate to occupancy by more than two persons. The proofs indicate, however, that such units as are held by plaintiffs are generally rented to groups of six to eight persons. The record is devoid of information as to the number of rooms contained in such units and as to the extent of the kitchen (if any) and sanitary facilities made available to groups of that size.

The economic stake of the plaintiffs in freedom from the restriction of the ordinance is that, by and large, greater rentals can be realized from groups than from normal families usually having only one wage-earning head.

Case authority directly or tangentially bearing upon the constitutional validity of ordinances restricting occupancy of conventional dwelling units to groups related by blood, marriage or adoption is fairly sparse. In this State we may consult Larson v. Mayor, etc., Spring Lake Heights, 99 N.J.Super. 365, 240 A.2d 31 (Law Div.1968); Marino v. Mayor etc., Norwood, 77 N.J. Super. 587, 187 A.2d 217 (Law Div.1963); and Newark v. Johnson, 70 N.J.Super. 381, 175 A.2d 500 (Cty.Ct.1961). The latter two cases involved zoning ordinances. Larson was concerned with two ordinances, of similar purport, adopted under the general welfare police powers of municipalities granted by N.J.S.A. 40:48--1(6) and 40:48--2, but designed to meet problems arising from summer group rentals in shore resort communities of substantially the same nature (with some exacerbation) as the problems presented to the Margate City authorities.

In Johnson, supra, the court held valid a restriction of one-family dwellings to persons related by blood, marriage or adoption maintaining a common household, as applied against families harboring foster children. The regulation was upheld as designed to prevent excessive numbers of children in the neighborhood and to preserve property values. In Marino, supra, a substantially similar restriction was held unreasonable as construed, in relation to the joint residence in a common housekeeping unit of an unrelated elderly couple, to constitute them two 'families' and thereby to cause the two-family dwelling which they shared with another family to violate the zoning restriction limiting the use of the building to two families.

In Larson, supra, the decision of closest pertinence to the present case, the regulatory ordinances involved prohibited, in effect, the use or occupancy of houses or dwellings by, Inter alia, groups of persons not qualifying as a 'family' as defined in the ordinances. A family was defined as:

A collective group of persons related by kinship, adoption, blood or marriage, living together under the same roof, in a common household whose relationship is of a permanent and distinct domestic character and not resort or seasonal in character or nature, including any domestic servants, lodgers, boarders or guests. (99 N.J.Super., at 370, 240 A.2d, at 34.)

It is noticeable that these ordinances are more restrictive than the Margate City ordinance in not allowing any nonrelated group whatsoever, nor even a related group if living together only for the summer, whereas Margate City allows an unrelated group of not in excess of two persons. Judge Simmill found that while the evident problems associated with group rentals were fit subjects for police power regulation, these particular ordinances were unreasonable in that they went 'beyond the public need,' constituted 'an excessive restriction' on the use of private property, and were 'palpably excessive as a 'requirement necessary to minimize the offensive character of the conduct to be regulated," citing principles enunciated in Katobimar Realty Co. v. Webster, 20 N.J. 114, 118 A.2d 824 (1955) (a zoning case), and State v. Mundet Cork Corp., 8 N.J. 359, 86 A.2d 1 (1952), cert. den. 344 U.S. 819, 73 S.Ct. 14, 97 L.Ed. 637 (1952) (a regulatory ordinance), among other decisions. The court pointed out, as one of several examples of the arbitrary character of the restriction, that under the ordinance it would be unlawful for two friends to share a house or apartment, even if their relationship were of a permanent and domestic character (99 N.J.Super., at 375, 240 A.2d 31). The court concluded that the municipalities should not 'burn the house to roast the pig' (at 374, 240 A.2d at 36).

However, defendant emphasizes that in Larson the court observed that its determination involved 'no opinion as to the validity of a Properly enacted zoning ordinance which might deal with the subject in similar fashion to the ordinances in question' (at 376; emphasis ours), noting that a restriction to single-family use has been upheld, as in Collins v. Board of Adjustment, Margate City, 3 N.J. 200, 69 A.2d 708 (1949), and Guaclides v. Englewood Cliffs, 11 N.J.Super. 405, 78 A.2d 435 (App.Div.1951). But we do not believe that the court meant to imply, nor would we agree, that arbitrary or patently unreasonable restrictions on the use of property, subject to condemnation when adopted as police-power regulations, would necessarily survive judicial scrutiny merely because dressed in the garment of zoning ordinance. Zoning is simply one broad segment of the police power, exerted for the public welfare. Schmidt v. Board of Adjustment, Newark, 9 N.J. 405, 414, 88 A.2d 607, 611 (1954). All police power legislation, including zoning, is subject to the constitutional limitation...

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24 cases
  • Moore v. City of East Cleveland, Ohio
    • United States
    • U.S. Supreme Court
    • May 31, 1977
    ...unreasonable". Ibid. The court quoted, id., at 252, 281 A.2d, at 519, the following language from Gabe Collins Realty, Inc. v. Margate City, 112 N.J.Super. 341, 349, 271 A.2d 430, 434 (1970); in a similar case as "equally applicable here": "Thus, even in the light of the legitimate concern ......
  • Zahorian v. Russell Fitt Real Estate Agency
    • United States
    • New Jersey Supreme Court
    • March 19, 1973
    ...practice for young unmarried working girls to make that kind of living arrangement.' See Gabe Collins Realty, Inc. v. City of Margate City, 112 N.J.Super. 341, 349, 271 A.2d 430 (App.Div.1970); Cf. Kirsch Holding Co. v. Borough oF manasquan, 59 N.J. 241, 281 A.2d 513 (1971). After finding t......
  • Sente v. Mayor and Municipal Council of City of Clifton
    • United States
    • New Jersey Supreme Court
    • December 12, 1974
    ...N.J. at 71, 127 A.2d 566; Schmidt v. Bd. of Adjustment, Newark, 9 N.J. 405, 88 A.2d 607 (1952); Gabe Collins Realty, Inc. v. City of Margate City, 112 N.J.Super. 341, 271 A.2d 430 (App.Div.1970); Larson v. Mayor, et al., 99 N.J.Super. 365, 240 A.2d 31 (Law Mr. Sente, naturally, does not arg......
  • State v. Baker
    • United States
    • New Jersey Supreme Court
    • July 30, 1979
    ...upon the freedom and privacy of unrelated individuals. 3 See Berger v. State, supra; Gabe Collins Realty, Inc. v. City of Margate City, 112 N.J.Super. 341, 350, 271 A.2d 430 (App.Div.1970). In addition to preserving a "family" style of living, the municipality also defends its ordinance as ......
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1 books & journal articles
  • Frank S. Alexander, the Housing of America's Families: Control, Exclusion, and Privilege
    • United States
    • Emory University School of Law Emory Law Journal No. 54-3, 2005
    • Invalid date
    ...would permit four unrelated individuals to reside together); Gabe Collins Realty, Inc. v. City of Margate, 112 N.J. Super. 341, 342, 271 A.2d 430, 430 (1970) (citing the zoning ordinance definition of "family" as "one or more persons related by blood, marriage or adoption or not more than t......

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