Kirsch Holding Co. v. Borough of Manasquan

Decision Date28 September 1971
Docket NumberNos. A-135,A--140,A--135,A-140,s. A-135
Citation59 N.J. 241,281 A.2d 513
PartiesKIRSCH HOLDING COMPANY, a corporation of the State of New Jersey, Plaintiff-Appellant, v. The BOROUGH OF MANASQUAN, a municipal corporation of the State of New Jersey, Defendant-Respondent (). STATE of New Jersey, Borough of Belmar, Plaintiff-Appellant, v. L. J. SCHIER, Defendant-Respondent ().
CourtNew Jersey Supreme Court

Theodore D. Parsons, Jr., Red Bank, for plaintiff-appellant Kirsch Holding Co. (Labrecque, Parsons & Bassler, attorneys, Theodore D. Parsons, Jr., Red Bank, on the brief).

John D. Wooley, Manasquan, for defendant-respondent Borough of Manasquan.

Harold Feinberg, Point Pleasant Beach, for plaintiff-appellant State.

Alphonse A. Stanzione, Jr., Lyndhurst, for defendant-respondent L. J. Schier (Madnick, Milstein & Mason, Asbury Park, attorneys, Alphonse A. Stanzione, Jr., Lyndhurst, on the brief).

The opinion of the Court was delivered by


These cases, consolidated for argument on appeal, concern the validity of essentially identical zoning ordinance provisions of the Boroughs of Manasquan and Belmar prohibiting, Inter alia, the 'group rental' of seasonal seashore resort living accommodations.

The property owner-parties in both cases had admittedly violated the ordinances. In the Manasquan case (hereafter Kirsch) the action was in lieu of prerogative writ seeking a determination that the provisions were invalid and an injunction against their enforcement. The Law Division upheld the provisions and gave judgment for the Borough. 111 N.J.Super. 359, 268 A.2d 333 (1970). We certified Kirsch's appeal on our own motion before argument in the Appellate Division. In the Belmar case (hereafter Schier), a similar attack was made by way of defense to a municipal court prosecution for violation of the ordinance. The conviction in that court was affirmed by the Monmouth County Court, but reversed by the Appellate Division in an unreported opinion. We granted the Borough's petition for certification. 58 N.J. 340, 277 A.2d 397 (1971).

The background facts are matters of general knowledge in the section of the state bordering on the Atlantic Ocean and are not in dispute. 1 For generations the communities along the coast have during the hot summer months experienced a large influx of people from the cities and other inland areas seeking the benefits and pleasures of seashore sun, air and water, as well as the resort amusements and entertainment available. In most of the towns, this seasonal influx finds vacation living accommodations largely by ownership or rental of summer cottages designed for that purpose or even of more substantial homes constructed for all-year living, along with less frequent use of hotels, motels or rooming houses. Manasquan and Belmar are typical resort towns in this respect. Both also have, as do most of the seashore resort communities, a substantial all-year population, which has been increasing in recent years by reason of retired people taking up permanent residence and of the availability of the Garden State Parkway and other highways as a means of rapid automobile transportation to quite distant places of employment. In most communities these all-year homes are intermixed with dwelling units occupied only during the summer season. The structures are frequently close together on small lots.

Until fairly recent years summer dwelling occupancy has been largely by conventional family units, who generally rented the accommodations for a month or the entire season. With the increased mobility of the population and the ease of travel to other parts of the country, such lengthy family stays have very frequently decreased to a week or two, with the result that property owners desiring to rent their cottages or houses seasonally must find a succession of weekly or biweekly tenants.

The other side of the coin, which concerns us, is the proliferation of 'group rentals' during the same period. This social phenomenon entails the rental of seashore cottages houses or apartments for the season to a group of young unrelated adults, which ordinarily comprises a substantial number of individuals although the lease may be in the name of only one. Generally the renters are unmarried and of one sex, and some or all of them use the property full-time during work or school vacations or on weekends. These groups are not formally organized as clubs, fraternities, sororities and the like and have no internal or external head, supervision or control. Human biology being what it is, such a group attracts friends of the other sex, who may live on the premises from time to time as well as merely visit the occupants. One result is an almost continuous overcrowding of the sleeping, cooking and sanitary facilities available. From the owner's point of view, this type of rental is a financial bonanza. He will have only one letting for the entire season, and by reason of group participation in the rental, he can secure a much higher return than a conventional family is willing or able to pay.

The evil which the ordinance provisions in question seek to prevent relates to the uninhibited social conduct of many such group rental occupants within and without the buildings. Unquestionably, and regrettably, excessive noise at all hours, wild parties, intoxication, acts of immorality, lewd and lascivious conduct and traffic and parking congestion often accompany these group rentals, making life not only unpleasant but practically unbearable to neighboring vacationers and permanent residents and having a general adverse effect on the whole municipality. In essence, they constitute a public and private nuisance by not meeting the minimal standards of expected social conduct even in this rather permissive day and age. While conventional families, with a number of children and visiting friends and relatives, can be noisy and disturbing to some neighbors, the existence of parental or family supervision and control generally prevents their conduct from exceeding the bounds of the reasonable behavior tolerance necessarily resulting from the less formal character of vacation resort living. Cf. Brundage v. Township of Randolph, 54 N.J.Super. 384, 148 A.2d 841 (App.Div.1959), affirmed o.b. 30 N.J. 555, 154 A.2d 581 (1959); Hantman v. Township of Randolph, 58 N.J.Super. 127, 155 A.2d 554 (App.Div.1959), certif. denied 31 N.J. 550, 158 A.2d 451 (1960).

The property owners here involved quite candidly admit the existence of the evil, but apparently are unwilling to assist in eradicating it by voluntarily refusing to rent to such groups, undoubtedly because of the greater economic advantage to them. They urge the problem can and should be met by police enforcement of existing general police power ordinances and criminal statutes relating to noise, disorderly and immoral conduct, vehicle and traffic control and the like rather than by zoning against these group uses.

This brings us to a consideration of the ordinance provisions challenged, which represent, through amendment, refinements of previous enactments. The design of the provisions is to nip group rentals or use in the bud by prohibiting the practice and making the landlord (or the owner if he is a group user or gratuitously permits group use), the rental agent and the users subject to prosecution or injunction for violation of the prohibition. As we understand these zoning ordinances (complete copies have not been furnished us), the provisions apply in all zones of the municipalities where 'one-family,' 'two-family' or 'multi-family' dwellings are permitted uses. 2 The result is accomplished by the definition of 'family' and by an express prohibitory section against group dwelling use.

Thus the Belmar ordinance defines 'family,' alternatively, as follows:

19--2.33 Family.

a. One or more persons related by blood or marriage occupying a dwelling unit and living as a single, nonprofit housekeeping unit.

b. A collective number of individuals living together in one house under one head, whose relationship is of a permanent and distinct domestic character, and cooking as a single housekeeping unit. This definition shall not include any society, club, fraternity, sorority, association, lodge, combine, federation, group, coterie, or organization, which is not a recognized religious order, nor include a group of individuals whose association is temporary and resort-seasonal in character or nature. 3

The prohibitory section of the Belmar ordinance reads:

19--3.4 Group Rentals. No house, dwelling, building, structure or enclosure, or any part of a house, dwelling, building, structure or enclosure, within any of the zones enumerated in section 19--3.1 preceding, shall be used, or be permitted to be used, or be rented for use, as living quarters or sleeping quarters or for living purposes or sleeping purposes, by or to any society, club, fraternity, sorority, association, lodge, combine, federation, group, coterie, or organization, or to any person or member on behalf of the same, or to any group or collection of persons who are unmarried or who do not qualify as a family as defined in subsection 19--2.33 of the within chapter. This subsection shall not apply to rooming houses, hotels, motels or other places of public accommodation in the Borough of Belmar, which places are duly licensed as such by the said borough, or to recognized religious orders, convents, rectories, or parish houses or manses utilized in conjunction with any church or synagogue or similar house of worship. 4

Appreciation of the full import and effect of the ordinance provisions requires that the definition and prohibitory sections be read and analyzed together. This task is not without its difficulties by reason of the obvious effort to be certain to bar obnoxious group rentals. It is plain that, in the effort to be certain to ban summer rentals by unruly groups of unrelated...

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