Ocean County Bd. of Realtors v. Borough of Beachwood

• Decision Date: 02 April 1991
• Citation: 248 N.J.Super. 241,590 A.2d 736
• Parties: OCEAN COUNTY BOARD OF REALTORS, Diane Rhine, William Buckley and Tom Lewis, Plaintiffs, v. BOROUGH OF BEACHWOOD, Borough of Island Heights, and Township of Long Beach, Defendants.
• Court: New Jersey Superior Court

Page 241

248 N.J.Super. 241

590 A.2d 736

OCEAN COUNTY BOARD OF REALTORS, Diane Rhine, William Buckley and Tom Lewis, Plaintiffs, v. BOROUGH OF BEACHWOOD, Borough of Island Heights, and Township of Long Beach, Defendants.

Superior Court of New Jersey, Law Division Ocean County.

Decided April 2, 1991.

Thomas P. Butz, for plaintiffs (Schuman, Butz, Bezdecki & Scalia, attys.) Toms River.

Brian E. Rumpf, for defendant Borough of Beachwood (Hiering, Hoffman & Gannon, attys.) Toms River.

Charles W. Hutchinson, Jr., for defendant Borough of Island Heights (Gilmore & Monahan, attys.) Toms River.

Eric J. Miller, for defendant Tp. of Long Beach (Shackleton, Hazeltine & Bishop, attys.) Ship Bottom.

SERPENTELLI, A.J.S.C.

Can municipalities condition the issuance of a certificate of occupancy for residential resales on the payment of municipal real estate taxes and water and sewer charges which are due or delinquent at the time of the application for the certificate? Ordinances adopted by the three defendant municipalities mandate those payments.

Plaintiffs charge that defendants lack authority to impose this requirement. Defendants have moved for summary judgment. The court has treated plaintiffs' opposition to the motions as a cross-motion for summary judgment since there is no dispute concerning material issues of fact.

In 1983, Long Beach Township adopted Ordinance 83-7C which directs that a certificate of occupancy must be obtained before title to any existing residential or commercial property is transferred. The next year, Long Beach Township amended the ordinance to provide:

No zoning permit, building permit or certificate of occupancy shall be issued unless application for the same is accompanied by a certification from the Township Tax Collector that no taxes or assessments for local improvements are due or delinquent on the property which is the subject of the application. [Ord. 84-1C]

In 1989, Long Beach Township adopted Ordinance 1989-9C which it believes gives the municipality the authority to require the payment of due or delinquent water and sewer charges before a certificate of occupancy is issued for a resale of any existing structure. While the ordinance does not expressly so provide, the court will assume for the purposes of a complete disposition of this matter that the ordinance is meant to accomplish that result.

Island Heights and Beachwood have adopted ordinances which have been implemented in the same manner as Long Beach Township. The Island Heights and Beachwood ordinances facially govern only structures used for businesses operating under a permit. They were apparently enacted pursuant to authority delegated by N.J.S.A. 40:52-1.2. However, counsel for both municipalities have stipulated that their ordinances also have been applied to residential sales essentially in the same manner as Long Beach Township. Again, in the interest of judicial efficiency, the court will assume that the ordinances accomplish that result.

Plaintiffs are the Ocean County Board of Realtors, a nonprofit corporation comprised of licensed real estate brokers, as well as three individual brokers, one of whom resides in Long Beach Township. The brokers allege that they are actively engaged in listing and selling property throughout Ocean County. They assert that defendants' ordinances have improperly impacted their businesses. Specifically, they claim that in certain instances they have had to advance their own funds to secure a certificate of occupancy before closing since the seller was unable to pay taxes, water or sewer charges. On the merits, plaintiffs contend that the challenged ordinances are preempted by Titles 54 and 40 of the New Jersey statutes which they insist comprehensively regulate the assessment and collection of real estate taxes and water and sewer charges throughout the State.

All defendants' motions for summary judgment rest on three grounds. First, they argue that plaintiffs have no standing. Second, they contend that this action is time barred by R. 4:69-6(a). Finally, they claim that the ordinances in question are legitimate exercises of the municipal police power. Beachwood has also raised the defense of ripeness.

I.

Standing.

New Jersey courts traditionally have taken a liberal approach to the issue of standing. Generally, plaintiff need only show a sufficient stake in the outcome of the proceeding and a position which is adverse to defendant. Home Builders League of So. Jersey, Inc. v. Tp. of Berlin, 81 N.J. 127, 132, 405 A.2d 381 (1979). Our courts will not render advisory opinions or function in the abstract, New Jersey Turnpike Authority v. Parsons, 3 N.J. 235, 240, 69 A.2d 875 (1949), nor will they entertain suits by strangers to the dispute. Bergen County v. Port of New York Authority, et al., 32 N.J. 303, 307, 318, 160 A.2d 811 (1960). However, the courts will give "due weight to the interests of individual justice, along with the public interest, always bearing in mind that throughout our law we have been sweepingly rejecting procedural frustrations in favor of 'just and expeditious determinations on the ultimate merits.' " Crescent Park Tenants Assoc. v. Realty Equities Corp. of N.Y., 58 N.J. 98, 107-108, 275 A.2d 433 (1971).

Our cases also have discarded the concept that plaintiff must be able to show that some injury has been suffered in order to maintain standing. Rather, it is sufficient to show a substantial likelihood of harm. Home Builders League of So. Jersey, Inc., supra, 81 N.J. at 134, 405 A.2d 381. Thus, plaintiffs need not show any one particular occurrence of harm and for that reason, Beachwood's contention that this action is not ripe for adjudication must fail.

In keeping with these principles, the Supreme Court in Crescent Park noted the increasing trend to permit nonprofit associations to litigate issues of public interest even though the harm involved may technically not be attributable to the association but rather to its constituents. Crescent Park, supra, 58 N.J. at 105-106, 275 A.2d 433. Furthermore, where a substantial public interest is involved the courts have found that a slight private interest, when added to and harmonized with the public interest, is sufficient to give standing. Home Builders League of So. Jersey, Inc., supra, 81 N.J. at 132, 405 A.2d 381; Elizabeth Federal Savings & Loan Ass'n v. Howell, 24 N.J. 488, 499, 132 A.2d 779 (1957).

The interests of plaintiffs in this litigation meet the criteria necessary to establish standing under our case law. They have both an adequate stake in the outcome and their interests are sufficiently adverse to defendants. The ordinances under attack have the potential to directly injure the members of the Ocean County Board of Realtors. Furthermore, the regulations in question can affect not only the association and its members but all property owners within defendant municipalities.

As to the individual plaintiffs, those who are not residents of defendant municipalities are not necessarily precluded from bringing suit. In Walker, Inc. v. Stanhope, 23 N.J. 657, 130 A.2d 372 (1957), the Court permitted a plaintiff who was neither a taxpayer nor a resident of defendant municipality to challenge the validity of an ordinance where it was shown that plaintiff's business was adversely affected. Finally, plaintiff Buckley is a resident of Long Beach Township. The township argues that the ordinances benefit Buckley as a resident and, therefore, he should not be heard to complain. That judgment is for him to make. A rule to the contrary could become the darling of the municipal attorney's nursery and frustrate many legitimate attacks on municipal ordinances.

II.

Time Limitation.

Next, defendants assert that plaintiffs' complaint is time barred by R. 4:69-6(a), which dictates generally that actions in lieu of prerogative writs shall be commenced within 45 days of the accrual of the right to the review, hearing or relief claimed. Long Beach Township's ordinance was passed in 1984, Island Heights adopted its ordinance in 1984 and Beachwood passed its regulations in 1988.

Plaintiffs acknowledge they are out of time but argue that the relaxation provision of R. 4:69-6(c) should be applied here. That rule allows the court to enlarge the 45 day time frame "where it is manifest that the interest of justice so requires." Our cases instruct that in determining whether the "interest of justice" would be served by relaxation, the decisional law should be examined since that standard was meant to incorporate exceptions carved out by earlier decisions which allowed relaxation in certain circumstances. Schack v. Trimble, 28 N.J. 40, 47-48, 145 A.2d 1 (1958). Those exceptions include cases involving (1) important and novel constitutional issues; (2) informal or ex parte determinations of legal questions by administrative officials; and (3) important public rather than private interests which require adjudication or clarification. Brunetti v. Borough of New Milford, 68 N.J. 576, 586, 350 A.2d 19 (1975).

The alleged evil of the ordinances under review will not only touch the economic well-being of plaintiffs but it has the potential of improperly impeding all those who seek certificates of occupancy in order to sell their homes. Both realtors and homeowners could be subjected to a continuing violation of their rights if the court should refuse to entertain the requested review of the validity of these strictures. Our Supreme Court has recently recognized that these are relevant considerations when weighing the propriety of enlarging the time requirement of R. 4:69-6(a). Reilly v. Brice, 109 N.J. 555, 559, 538 A.2d 362 (1988).

The court is aware that the ordinances here under review exist in other municipalities. There is a significant public interest to be served by adjudicating their validity. Furthermore, if they cannot pass muster, realtors, homeowners and others should not be subjected to continued...