Summer v. Teaneck Tp.

• Decision Date: 02 April 1969
• Docket Number: No. A--48,A--48
• Citation: 251 A.2d 761,53 N.J. 548
• Parties: , 34 A.L.R.3d 1423 Alexander SUMMER, Jr., Plaintiff-Respondent, v. TOWNSHIP OF TEANECK, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 548

53 N.J. 548

251 A.2d 761, 34 A.L.R.3d 1423

Alexander SUMMER, Jr., Plaintiff-Respondent, v. TOWNSHIP OF TEANECK, Defendant-Appellant.

No. A--48.

Supreme Court of New Jersey.

Argued Dec. 2, 1968.

Decided April 2, 1969.

Jacob Schneider, Teaneck, for appellant (Malcolm Blum, Teaneck, on the brief).

Arthur M. Greenbaum, Newark, for respondent (Joel A. Brotman, Newark, on the brief, Greenbaum, Greenbaum and Rowe, Newark, attorneys).

E. Robert Levy, Deputy Atty. Gen., for Arthur J. Sills, Atty. Gen., amicus curiae.

Vincent E. Fiordalisi, Newark, submitted a brief on behalf of New Jersey Committee against Discrimination in, Housing, amicus curiae.

The opinion of the court was delivered by

WEINTRAUB, C.J.

This case, brought by a real estate broker, involves the validity of an ordinance of the Township of Teaneck dealing with 'blockbusting.' On motion for summary judgment the trial court held the ordinance was beyond the legislative power of the municipality. We certified the Township's appeal before argument in the Appellate Division.

Blockbusting is the practice of inducing owners of property to sell because of the actual or rumored advent into the neighborhood of a member of a racial, religious or ethnic group. The inducement is the supposed loss in property value for those who remain. The evils are evident. Sellers are exploited, and hostility is excited both in those who are persuaded their economic interests are thus threatened and in the group of citizens who are given to understand their presence is a blight. The present setting of racial discord magnifies the insult to the public well-being. No one suggests the subject is beyond the power of the State. The sole question is whether a municipality too may deal with it.

Reciting that blockbusting had already been experienced in the municipality and that 'such practices are detrimental to the community at large in that they frustrate intergroup relations and civic objectives, may prove economically adverse to the Township and property values therein, (and) tend to create racial ghettos and disturb the peace and tranquility of the community,' the ordinance forbids a canvass for a listing or sale of real property unless a prescribed form is filed with the township clerk no less than 10 nor more than 30 days before the date on which the canvass will take place. The term 'canvassing' is defined to include 'door to door soliciting or soliciting by the use of circulars, visitations, or any other means where the canvasser, or his employer has not been invited or requested by the owner * * * to obtain a listing of real property or to confer with the owner regarding a real estate transaction.' The ordinance also forbids sundry acts related to the objective of preventing blockbusting. The township manager is assigned certain duties with respect to complaints received. Violations are punishable by a fine of not more than $200 or 30 days in jail or both.

As we have said, the single issue is whether it is beyond the power of the municipality to enact an ordinance dealing with blockbusting. The trial court held the municipality could not legislate upon the subject because (1) the subject inherently requires statewide treatment and therefore municipal legislation is foreclosed even if the State has not itself dealt with the subject, and (2) the State has preempted the area by its statute creating the Real Estate Commission and by a rule the Commission adopted thereunder.

I.

N.J.S.A. 40:48--2 reads:

'Any municipality may make, amend, repeal and enforce such other ordinances, regulations, rules and by-laws not contrary to the laws of this state or of the United States, as it may deem necessary and proper for the good government, order and protection of persons and property, and for the preservation of the public health, safety and welfare of the municipality and its inhabitants, and as may be necessary to carry into effect the powers and duties conferred and imposed by this subtitle, or by any law.'

Construed liberally in favor of local government as our Constitution, Art. IV, § VII, 11, requires to be done, this provision has been held to accomplish a broad grant of police power in addition, rather than merely ancillary, to the sundry detailed authorizations for municipal action contained in our statutes. See Fred v. Mayor and Council of Borough of Old Tappan, 10 N.J. 515, 519--521, 92 A.2d 473 (1952). Nonetheless there is an implied limitation upon this pervasive grant. As said in Wagner v. Mayor and Municipal Council of City of Newark, 24 N.J. 467, 478, 132 A.2d 794, 800 (1957), the grant 'relates to matters of local concern which may be determined to be necessary and proper for the good and welfare of local inhabitants, and not to those matters involving state policy or in the realm of affairs of general public interest and applicability.' So, for example, a municipality cannot legislate upon the subject of wills or title to real property. The needs with respect to those matters do not vary locally in their nature or intensity. Municipal action would not be useful, and indeed diverse local decisions could be mischievous and even intolerable. Hence the municipality may not legislate upon an aspect of a subject 'inherently in need of uniform treatment.' In re Public Service Electric and Gas Co., 35 N.J. 358, 371, 173 A.2d 233, 239 (1961).

Blockbusting does not come within that limitation. Blockbusting depends very much upon the local scene and varies accordingly in its intensity and hurt. Although the evil warrants the concern of the State itself, it would not be inappropriate to permit the municipalities also to wrestle with it. There is no inevitable need for a single statewide solution or for a single statewide enforcing authority. On the contrary, it may be useful to permit municipalities to act, for, being nearer the scene, they are more likely to detect the practice and may be better situated to devise an approach to their special problems. Then, too, municipalities may provide enforcement personnel the State has not supplied in adequate numbers and hence be able to nip an offensive movement with which a State agency could not deal until after the event.

We note in this connection that a relevant federal statute assumes the appropriateness of municipal action in this general area. Thus the Fair Housing Act of 1968, which includes a condemnation of blockbusting, 42 U.S.C.A. § 3604(e), stipulates that its provisions shall not be construed to invalidate any law of a State or 'political subdivision of a State,' 42 U.S.C.A. § 3615, and speaks of cooperation by the Secretary of Housing and Urban Development 'with State and local agencies charged with the administration of State and local fair housing laws,' 42 U.S.C.A. § 3616. Many municipalities have legislated with respect to blockbusting, see Fair Housing Laws (Housing and Home Finance Agency, Sept. 1964), pp. 234--238, and a fair-housing ordinance which included a blockbusting provision was upheld in Chicago Real Estate Board v. City of Chicago, 36 Ill.2d 530, 224 N.E.2d 793 (Sup.Ct.1967). With respect to the power of a municipality to deal with racial discrimination, see District of Columbia v. John R. Thompson Company, Inc., 346 U.S. 100, 73 S.Ct. 1007, 97 L.Ed. 1480 (1953).

We are satisfied that municipal action cannot be barred by the concept that the subject is inherently beyond the delegated police power. The question then is whether this ordinance, in the words of N.J.S.A. 40:48--2 quoted above, is 'contrary to the laws of this state,' as the trial court also found. We turn to that issue.

II.

A municipality may not contratradict a policy the Legislature establishes. Auto-Rite Supply Co. v. Mayor and Township Committeemen of Woodbridge, 25 N.J. 188, 135 A.2d 515 (1957). Hence an ordinance will fall if it permits what a statute expressly forbids or forbids what a statute expressly authorizes. Even absent such evident conflict, a municipality may be unable to exercise a power it would otherwise have if the Legislature has preempted the field. This follows from the basic principle that local government may not act contrary to State law. But an intent to occupy the field must appear clearly. Kennedy v. City of Newark, 29 N.J. 178, 187, 148 A.2d 473 (1959). It is not enough that the Legislature has legislated upon the...